Benjamin v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 99-1001
JAMES T. BENJAMIN , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before KRAMER, Chief Judge, and FARLEY,
HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
In an April 19, 2001, order, the Court vacated an April 1, 1999, decision of the Board of
Veterans' Appeals and remanded the matter for readjudication in light of the enactment of the
Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). On
May 10, 2001, the appellant, through counsel, filed a motion for reconsideration or, in the
alternative, for a panel decision. By order dated September 6, 2001, the single judge denied
reconsideration and a divided panel denied his request for a panel decision. On September 20, 2001,
the appellant filed a motion for a full Court decision.
Motions for a full Court decision are not favored. Ordinarily they will not be granted unless
such action is necessary to secure or maintain uniformity of the Court's decisions or to resolve a
question of exceptional importance. In this appeal, the appellant has not shown that either basis
exists to warrant a full Court decision.
Upon consideration of the foregoing, the record on appeal, and the appellant's motion for a
full Court decision, it is
ORDERED that the motion for a full Court decision is denied.
DATED: November 2, 2001 PER CURIAM.
KRAMER, Chief Judge, concurring: I concur in the denial of the appellant's motion for a
full Court decision because the appellant has not demonstrated that he would be prejudiced by a
remand pursuant to the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.
2096 (Nov. 9, 2000) (VCAA), without additional relief. Such prejudice may result, for example,
where the appellant would have (1) argued and provided support for a reversal with a direction by
the Court for the award of benefits or (2) demonstrated that errors alleged to have been made by the
Board of Veterans' Appeals (Board) neither could be mooted by the VCAA nor could likely be
properly raised or eventually remedied on remand to the Board. In this regard, I note that the
appellant has not yet raised to the Board his arguments regarding VA's failure (1) to provide a copy
of the appellant's claims file to the VA examining physician, see Hampton v. Gober, 10 Vet.App.
481, 483 (1997), and (2) to comply with the requirements of 38 C.F.R. § 4.40 (2000) and DeLuca
v. Brown, 8 Vet.App. 202, 206 (1995). Accordingly, I agree that a VCAA remand was appropriate
in this case. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (this Court is not
compelled to hear arguments raised for first time on appeal; in its discretion, Court may remand for
Board to determine such matters in first instance); Best v. Principi, 15 Vet.App. 18, 20 (2001) (per
curiam order) (because of as yet unknown factual and legal context in which claim readjudication
will occur, absent "appropriate circumstances," Court refrains from exercising, either sua sponte or
at appellant's request, its discretion to address each assertion of Board error once it is determined that
VCAA necessitates remand); see also Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per
curiam order); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991).
STEINBERG, Judge, dissenting: I previously dissented from this Court's denial of the
appellant's motion for a panel decision in this case. Benjamin v. Principi, __Vet.App.__,__, No. 99-
1001, 2001 WL 1021027, at *1-3 (Sept. 6, 2001) (per curiam order) (Steinberg, J., dissenting). I did
so because I believe that the Court should address two of the appellant's assertions of error that are
not predicated on the potential applicability of the Veterans Claims Assistance Act of 2000, Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), and are capable of repetition on remand.1 For
the same reasons that I dissented from the Court's denial of the appellant's motion for a panel
decision, I now dissent from the denial of the appellant's motion for full-court review.
The appellant's motion for full-court review cites as grounds this Court's misinterpretation
of the scope of its jurisdiction and the necessity to maintain uniformity in the Court's decisions.
Appellant's Motion at 1, 4. I voted to grant this motion for the following reasons. As I explained
in my dissent from the denial of the appellant's motion for a panel decision, I do not believe that a
remand for readjudication in light of the enactment of the VCAA, as a general matter, obviates this
Court's responsibility2 to consider assertions of Board of Veterans' Appeals (BVA or Board)
adjudication errors, including errors asserted as alternative grounds for remand. Benjamin,
__Vet.App. at __, 2001 WL 1021027, at *1-2. The Court should generally review such assertions
in order to avoid the possibility that adjudication errors will be repeated by the Board on remand.
See Mahl v. Principi, 15 Vet.App. 37, 40-41 (2001) (Steinberg, J., dissenting); see also Webb v.
1
In my previous dissent to the denial of a panel decision in this case, I fully addressed the specific adjudication
errors that may be repeated on remand to the Board and that I believe the Court should address. Benjamin v. Principi,
__ Vet.App.__,__, No. 99-1001, 2001 W L 1021027, at *2-3 (Sept. 6, 2001) (per curiam order) (Steinberg, J.,
dissenting).
2
M y views regarding the responsibility of the Court in this regard are most fully set forth in my dissenting
opinion in Mahl v. Principi, 15 Vet.App. 37, 40-47 (2001) (Steinberg, J., dissenting).
2
Principi, 15 Vet.App. 139, 140–41 (2001) (per curiam order) (Steinberg, J., dissenting).
Additionally, as I noted in my previous dissent from the denial of the appellant's motion for a panel
decision, the Court's refusal, as a general matter, to consider the appellant's assertions of BVA
adjudication error that are not predicated on the potential applicability of the VCAA is inconsistent
with this Court's precedent. See Kingston v. West, 11 Vet.App. 272, 273-74 (1998) (per curiam
order) (although remand required pursuant to Karnas v. Derwinski, 1 Vet.App. 308 (1991), BVA
adjudication error alleged by appellant provided additional basis for remand); Baker v. West,
11 Vet.App. 163, 168-69 (1998) (same). Accordingly, I agree that full-court review is appropriate
on the grounds cited by the appellant. See U.S. VET . APP . R. 35(c).
For the foregoing reasons, I dissent from the Court's denial of the appellant's motion for a
decision by the full court.
3