when law or regulation changes after claim has been submitted, but before administrative or judicial appeal process has been concluded, version that is most favorable to claimant must be applied unless Congress provided otherwise
How later courts described this case
- when law or regulation changes after claim has been submitted, but before administrative or judicial appeal process has been concluded, version that is most favorable to claimant must be applied unless Congress provided otherwise
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 98-1375
JIMMIE HARVEY , JR., APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges.
ORDER
On September 19, 2000, the Court issued an opinion affirming the June 15, 1998, Board of
Veterans' Appeals (Board) decision that denied the appellant's application for Service Disabled
Veterans' Insurance on the grounds that the veteran failed to meet the basic criteria for entitlement
to such benefits. Harvey v. Gober, 14 Vet.App. 137 (2000). On November 7, 2000, judgment was
entered.
On November 15, 2000, following the enactment of the Veterans Claims Assistance Act of
2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (hereinafter VCAA), the Court
automatically recalled judgment as to the September 19, 2000, decision pursuant to In Re: Veterans
Claims Assistance Act of 2000, Misc. No. 4-00, 15 Vet.App. 27 (2000) (en banc order). On April
30, 2001, the Court ordered the parties to submit supplemental briefs addressing the effect, if any,
of the VCAA upon this case. Both the veteran and the Secretary have done so. The Court finds that
the VCAA may be applicable to the veteran's claim.
The VCAA affects sections of chapter 51 of title 38 of the United States Code, which provide
the general administrative procedures for VA to follow in processing claims for veterans benefits.
In particular, 38 U.S.C. § 5103(a), as amended by § 3 of the VCAA, obligates VA to give notice to
claimants of the required information and evidence that must be submitted to substantiate a claim.
The veteran's claim, as noted above, may be affected by the amended provisions, and it is not the
function of this Court to determine in the first instance which version of the law is most favorable
to the claimant. See Baker v. West, 11 Vet.App. 163, 169 (1998). Accordingly, a remand is required
in order to provide the Board with an opportunity to readjudicate the veteran's claim. See generally
Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (when law or regulation changes after claim
has been submitted, but before administrative or judicial appeal process has been concluded, version
that is most favorable to claimant must be applied unless Congress provided otherwise).
On remand, the veteran is free to submit additional evidence and argument necessary to the
resolution of his claim. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order). The Board shall proceed expeditiously in accordance with section 302 of the Veterans'
Benefits Improvement Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at
38 U.S.C. § 5101 note) (requiring Secretary to provide for "expeditious treatment" of claims
remanded by Board or Court). See Drosky v. Brown, 10 Vet.App. 251, 257 (1997). If circumstances
warrant, the Board is authorized and obligated to remand the claim to the VA regional office for
further development. See 38 C.F.R. § 19.9(a) (2001); Littke v. Derwinski, 1 Vet.App. 90, 93 (1990).
Upon consideration of the foregoing, it is
ORDERED that the Court's September 19, 2000, opinion is withdrawn. It is further
ORDERED that the Board's June 15, 1998, decision is VACATED and the matter is
REMANDED for further adjudication.
DATED: December 4, 2001 PER CURIAM.
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