Patek v. Gober , 2001 U.S. Vet. App. LEXIS 6 ( 2001 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 99-775
JANE A. PATEK, APPELLANT ,
V.
HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, IVERS, and STEINBERG, Judges.
ORDER
On October 18, 2000, the Court in a single-judge memorandum decision affirmed an April
5, 1999, decision of the Board of Veterans' Appeals that determined that new and material evidence
had not been submitted to reopen a claim for service connection for the cause of the veteran's death.
On November 18, 2000, the appellant, through counsel, filed a motion for a decision by a panel.
On November 9, 2000, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) [hereinafter VCAA], was enacted. Section 5103(a) as amended by the
VCAA provides:
Upon receipt of a complete or substantially complete application, the Secretary shall
notify the claimant and the claimant's representative, if any, of any information, and
any medical or lay evidence, not previously provided to the Secretary that is
necessary to substantiate the claim. As part of that notice, the Secretary shall indicate
which portion of that information and evidence, if any, is to be provided by the
claimant and which portion, in any, the Secretary, in accordance with section 5103A
of this title and any other applicable provision of law, will attempt to obtain on behalf
of the claimant.
In Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), this Court held that unless Congress
provided otherwise, where a statute or regulation changes during the appellate process, the version
most favorable to the claimant shall apply. 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 (1998); Dudnick v. Brown, 10 Vet.App. 79 (1997).
On consideration of the foregoing, it is
ORDERED that the appellant shall, within 30 days after the date of this order, file, and serve
on the Secretary, a supplemental memorandum of law explaining what impact, if any, she believes
that the enactment of the VCAA has on the disposition of her underlying appeal and the motion for
panel decision. Also, the appellant shall explain why the Board decision should not be vacated and
this matter remanded pursuant to the VCAA and Karnas, supra. The Secretary shall file, and serve
on the appellant, a reply to the appellant's supplemental memorandum 30 days after its date of
service. The appellant may, if she chooses, file a reply to the Secretary's response within 14 days
after the date of service of the Secretary's response.
DATED: January 10, 2001 PER CURIAM.