vacatur and remand ordered because VA failed to fulfill duty to assist although that remedy was also required pursuant to Karnas
How later courts described this case
- vacatur and remand ordered because VA failed to fulfill duty to assist although that remedy was also required pursuant to Karnas
Written by the judges who cited it.
The opinion
STEINBERG, Judge,
concurring:
Because the appellant has presented no persuasive reason to grant his motion for a decision by a panel, I concur in the denial of that motion. However, I note, with respect to the merits of the appellant’s claims, that I would have accepted the Secretary’s concession that the Board of Veterans’ Appeals (Board) failed to provide an adequate statement of reasons or bases to explain the denial of the appellant’s claims to reopen his previously and finally disallowed claims for Department of Veterans Affairs (VA) service connection for asthma, small airway disease, and pneumonia. See 38 U.S.C. § 7104 (d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). I reject the idea that a remand for readjudication in light of the enactment of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-175, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), generally obviates our consideration of an appellant’s assertions of Board adjudication error, or our acceptance of the Secretary’s concessions of such error, that are not predicated on the potential applicability of the VCAA. See Kingston v. West, 11 Vet.App. 272, 273 (1998) (per curiam order) (Court “must consider” appellant’s allegations of adjudicative error notwithstanding remand pursuant to Karnas v. Derwinski, 1 Vet.App. 308 (1991)); Baker v. West, 11 Vet.App. 163, 169 (1998) (vacatur and remand ordered because VA failed to fulfill duty to assist although that remedy was also required pursuant to Karnas); Mahl v. Principi, 15 Vet.App. 37, 40-47 (per curiam order) (Steinberg, J., dissenting). As I have noted in prior cases, if the Court were to issue a decision holding that certain errors had occurred in the Board adjudication, the possibility that the Board would repeat those same errors on remand for readjudication in light of the enactment of the VCAA would be markedly reduced. See Webb v. Principi, 15 Vet.App. 139, 140 (2001) (per curiam order) (Steinberg, J., dissenting); Benjamin v. Principi, 15 Vet.App. 216 (2001) (per curiam order) (Steinberg, J., dissenting); Mahl, 15 Vet.App. at 41 (Steinberg, J., dissenting).