# Jones v. Derwinski

Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc.

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## Jones v. Derwinski, 1 Vet. App. 210 (1991) {#6727177}

*1 Vet. App. 210*

_Jones v. Derwinski, 1 Vet. App. 210, decided 1991-04-10._

STEINBERG, Associate Judge:
On October 10, 1989, the Board of Veterans Appeals (BVA or Board) issued a decision on a reopened claim by the appellant, *212McArthur Jones, for service-connected disability compensation for chronic prostatitis. The BVA concluded that its prior “denial of entitlement ... in January 1988 is a final determination; and the evidence received subsequently does not present a new factual basis for a grant of service connec-tion_” McArthur Jones, loc. no. 929115, at 8 (BVA Oct. 10, 1989).

The issue is whether certain material findings of fact by the BVA in its October 10, 1989, decision should be held unlawful and set aside because they are “clearly erroneous” under 38 U.S.C. § 4061(a)(4) (1988). We hold that they are not but that remand of the case to the Board is required because the decision fails to provide adequate “reasons or bases” for certain findings of material fact and conclusions of law. We also address the standard of review that the Department of Veterans Affairs (VA or the Department) is required by 38 U.S.C. §§ 4004(b) and 3008 (1988) to apply to a reopened claim.

A second major issue was presented in this appeal pertaining to the payment of attorney fees to the veteran’s attorney for services rendered in representing the veteran before VA, the BVA, and this Court. Those attorney-fee issues have been separated from the substantive appeal and re-docketed in a separate case, In the Matter of the Fee Agreement of William G. Smith in Case Number 90-58, U.S.Vet. App. No. 91-619 (Notice of Appeal filed Feb. 2, 1990), as an appeal by the appellant’s attorney, William G. Smith, Esquire, from the BVA’s decision on the fees provided for in a fee agreement between the attorney and the appellant. Those issues are still under submission. In the future, in view of the possibility that an attorney and an appellant may not have an identity of interests on attorney-fee questions, the Court will, at the outset of the appeal, very likely separate attorney-fee issues from issues in the substantive appeal, so that the issues will be separately considered.

I. BACKGROUND

Mr. Jones served in the Army from July 1965 to June 1968, including service in Germany. His 1965 Army enlistment examination did not indicate any medical problems. He first sought treatment from the Army on August 15, 1966, for urethral discharge, mild dysuria, and painful urination. On several occasions over the next four months, he sought Army treatment in Germany for these urinary problems, as well as frequency of urination (see the first seven paragraphs of the Appendix to this opinion); on January 7, 1967, an Army treating physician concluded that the veteran’s “complaints [had] subsided” and made a final diagnosis of “prostatitis-cystitis”. R. at 18. There is no record of any other medical complaints for the remaining 17 months of his service; however, the veteran testified under oath at a February 16, 1989, hearing at the Regional Office (RO) of the Veterans’ Administration (the VA), the predecessor of the Department, that he was able to control his urinary problem in service by drinking less fluid. R. at 123.

In March 1987, the veteran first applied for compensation from the VA for a urinary problem. In support of his claim, he submitted medical records showing private treatment of, among other conditions, urinary discharge, urgency, and frequency over the 15 years from 1972 to 1987. {See the Appendix.) A medical examination by the VA in May 1987 assessed his problem as either “possible neurogenic bladder, or possible chronic interstitial cystitis.” R. at 42. On January 26, 1988, the BVA denied service connection based on its findings that the “various genitourinary symptoms [treated] while on active duty ... resolved without chronic residuals prior to separation from the service” and that “medical finding[s] suggestive of chronic pathology of the urinary tract first appear[ed] several years after discharge from the service.” McArthur Jones, loc. no. 801647, at 4 (BVA Jan. 26, 1988) (emphasis added). This decision was not appealable to this Court because the Notice of Disagreement pertaining to the claim was filed prior to November 18,1988. See Veterans’ Judicial Review Act (VJRA), Pub.L. No. 100-687, Div. A, § 402, 102 Stat. 4105, 4122 (1988); Skinner v. Derwinski, 1 Vet.App. 2 (1990).

*213In February 1988, the veteran reopened his claim at the RO on the basis of his submission of “new and material evidence”. R. at 100. See 38 U.S.C. §§ 3008, 4004(b) (1988). He submitted previously omitted outpatient medical records from the VA that showed treatment for urgency, frequency, and prostatitis by the VA between May and November 1987; an April 1988 medical report from a private physician stating that it was “within reasonable doubt that the condition which he has currently may at first have appeared during the time the patient was in active duty in 1966-1968”; and an April 1988 medical report from another private physician stating that the appellant had a “long standing problem of chronic prostatitis with acute exacerbation.” R. at 101-105, 107, 112. The remainder of the new evidence submitted was the veteran’s testimony under oath at the February 16, 1989, personal hearing that he had been treated for urinary frequency by a physician in Vicksburg, Mississippi, within six months after discharge from service and in Los Angeles, California, in either late 1969 or early 1970. R. at 118, 120, 122.

The RO denied the reopened claim on December 23, 1988, and on October 10, 1989, the BVA affirmed the RO’s denial. A timely appeal to this Court followed. Jurisdiction here is founded on 38 U.S.C. § 4052 (1988).

II. ANALYSIS

A. Reopening a Claim

38 U.S.C. § 4004(b) (1988) provides:

Except as provided in section 3008 of this title, when a claim is disallowed by the Board, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.

(Emphasis added.) 38 U.S.C. § 3008 (1988) provides:

If new and material evidence is presented or secured with respect to a claim which has been disallowed, the [Secretary] shall reopen the claim and review the former disposition of the claim.

Under section 3008, when a claimant seeks a reopening of his or her claim by submitting what is asserted to be “new and material” evidence, a “two-step analysis” must be performed: if the evidence is determined by the regional office or the BVA to be “new and material”, the claim is to be reopened; then a review is made to determine whether the former disposition of the claim should be altered. Manio v. Derwinski, 1 Vet.App. 140, 145 (1991).

As to the first step, the parties agree that new and material evidence was submitted by the claimant. At oral argument, counsel for the Secretary acknowledged that the evidence submitted was considered by the BVA to be new and material. In its decision, the BVA did seem to concede that new and material evidence had been submitted.

As was suggested in Manio, at 145, and later held in Colvin v. Derwinski, 1 Vet.App. 171, 173 (1991), the question of whether newly submitted evidence is “new and material” under section 3008 is a question of law. Accord Smith v. Derwinski, 1 Vet.App. 178, 179 (1991). In the instant case we hold that the evidence submitted by the appellant was, in law, “new and material”. The primary basis for the BVA’s denial of service connection for the veteran’s current urinary problems was the 44-month gap between his discharge from service and his first treatment at Kaiser Permanente for these problems in March 1972. McArthur Jones, loc. no. 929115, at 7 (BVA Oct. 10, 1989). The veteran’s sworn testimony that he had twice sought treatment for his urinary problems from physicians during that time, if believed, was both new and material.

That being so, the questions are: (1) what standard for the section 3008 review is to be applied to the reopened claim, and (2) was the correct standard applied here. The RO (R. at 116) and the BVA (McAr-thur Jones, loc. no. 929115, at 6 (BVA Oct. 10, 1989)) were applying a pre-VJRA regulation which required that if new and mate*214rial evidence is submitted then the claim may be granted only if that new evidence provides a “new factual basis for allowing the claim”. 38 C.F.R. § 19.194 (1990). This regulation has now, in effect, been superseded, effective January 22, 1991, by a regulation promulgated to provide “a formal regulatory definition” for the term “new and material evidence” contained in section 3008 which was added by section 103 of the VJRA. 55 Fed.Reg. 19,088 (May 8,1990) (supplementary information on proposed rule). The new regulation defines “new and material evidence” as follows:

“New and material evidence” means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.

55 Fed.Reg. 52,274 (Dec. 21, 1990) (codified at 38 C.F.R. § 3.156(c) effective Jan. 22, 1991) (emphasis added). Although this new regulation is a definition of “new and material evidence” for the purpose of determining whether or not the claim is to be reopened, the underlined language in the above quotation clearly implies that the standard for the review to be carried out once the claim is reopened includes the same criterion — that the new evidence be considered “by itself or in connection with evidence previously assembled”.

In its October 10, 1989, decision, the BVA presented “THE ISSUE” as “whether additional evidence establishes a new factual basis warranting service connection for a bladder/urinary condition.” McArthur Jones, loc. no. 929115, at 1 (Oct. 10, 1989). In its “DISCUSSION AND EVALUATION”, the BVA stated: “The issue for consideration, therefore, is whether the evidence received since that determination establishes a new factual basis warranting a grant of service connection for the disability”; and: “The evidence submitted since the prior decision of the Board ... does not establish ... a chronic urinary/bladder disability_” Id. at 7 (emphasis added). In its “CONCLUSION OF LAW”, the BVA stated that the denial “in January 1988 is a final determination; and the evidence received subsequently does not present a new factual basis for a grant of service connection for a urinary/bladder condition.” Ibid, (emphasis added).

Exactly what standard the BVA applied for its review is not entirely clear. While framing the issue as quoted above, the BVA also reiterated the “old” evidence for two pages and then made two statements that might derive from an evaluation of all the evidence, new and old: “There is simply no evidence of record which persuav-sively [sic] associates the veteran’s current chronic genitourinary disability with his period of active duty.... The evidence of record does not raise a reasonable doubt or otherwise warrant allowance of this claim.” Ibid. On the whole, however, we find that the very clear statements of the issue at the outset and in the “CONCLUSION OF LAW” and twice in between are the best indication of the standard applied by the BVA, and that standard was whether the new evidence alone established a sufficient basis for granting service connection in this case.

At oral argument, counsel for the Secretary conceded that section 3008 requires that “when new and material evidence is received it should be viewed in conjunction with the other evidence.” We agree. See Manio, at 145. The new regulation demonstrates what the Department acknowledged at oral argument — that it would be impossible for either a regional office or the BVA to “review the former disposition of the claim”, that is, to decide the merits of a reopened claim fairly, without looking at the new and material evidence in the context of all the other evidence of record and not in isolation. See 38 U.S.C. § 4004(a) (1988) (“Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record ... ”); Col-vin, at 172 (when claim is reopened because the evidence submitted is found to be new and material, that evidence is to be con*215sidered “in the context of the other evidence in order to review the former disposition” of the claim).

There is no indication whatsoever that in enacting section 3008 Congress intended that a reopened claim could be allowed only when the new and material evidence was of such significance that standing alone it might reasonably be found to dictate allowance of the claim. See VJRA, Pub.L. No. 100-687, § 103(a), 102 Stat. at 4107 (1988); 134 Cong.Rec. S16653 (daily ed. Oct. 18, 1988) (Explanatory Statement on the Compromise Agreement on S. 11, As Amended, the [“VJRA”]). Indeed, the legislative history is to the contrary.

The phrase “new factual basis for allowing the claim” in the old regulation derived from the language in section 4004(b) that “when a claim is disallowed, the claim may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” 38 U.S.C. § 4004(b) (1988) (emphasis added). However, in the VJRA, Congress added at the outset of section 4004(b) a qualifier, “Except as provided in section 3008”, and enacted a new section 3008. VJRA, Pub.L. No. 100-687, §§ 103, 204, 102 Stat. at 4107, 4111 (1988). Under section 3008, when a claim is sought to be reopened based on “new and material evidence” and the evidence submitted is found to be new and material, the Department is to “reopen the claim and review the former disposition of the claim.” 38 U.S.C. § 3008 (1988). The addition of this qualifying phrase to the section 4004(b) language quoted above evidences Congressional intent that that language not have further applicability to a reopening at the regional office level based on the submission of new and material evidence. This question is essentially mooted, however, by the clear implication in the new regulation of the standard for the review to be applied in reopened cases considered at the regional office level or the BVA after January 21, 1991. Since we are remanding the case to the BVA for readjudication, we need not here decide whether the continued application of the old regulation was consistent with the statutory changes made by the VJRA. The new regulation will be applied on remand.

Under section 3008 and the new regulation, it is the regional office’s and the BVA’s responsibility to determine whether the new evidence makes a difference in the outcome. In the words of the statute, the issue is, does “review” of that evidence in the context of the evidence already of record justify a change in “the former disposition of the claim”? 38 U.S.C. § 3008 (1988). Since the prior evidence of record established without dispute a continuity of symptomatology from 1972 to the time of the claim, the question under section 3008 should thus have been whether the new evidence filled the gap in the evidence of continuity from the veteran’s discharge in June 1968 until the veteran consulted Kaiser in March 1972.

Instead, the BVA concluded that the reopened claim should be denied because the new evidence, standing alone, “[did] not establish a chronic urinary/bladder disability” or “present a new factual basis for a grant of service connection_” McAr-thur Jones, loc. no. 929115, at 7-8 (BVA Oct. 10, 1989). Because we are not satisfied that this was the correct standard to be applied under section 3008, we must vacate the decision and remand the case to the BVA for it, under the new regulation, to assess the new and material evidence in the context of the other evidence of record and make new factual determinations as to whether the 44-month “gap” has been filled adequately by the new evidence.

B. “Clearly Erroneous” Standard of Review

38 U.S.C. § 4061(a)(4) (1988) provides:

In any action ... the Court of Veterans Appeals, to the extent necessary to its decision and when presented, shall in the case of a finding of material fact made in reaching a decision in a case before ... [the Department], hold unlawful and set aside such finding if the finding is clearly erroneous.

(Emphasis added.)

This Court expounded upon this standard in Gilbert v. Derwinski, 1 Vet.App. 49, 52 *216(1990), quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541, 92 L.Ed. 746 (1948), as follows: “ ‘A finding is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.’ ” To provide further explanation of the standard, Gilbert quoted Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985), as follows:

“If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous. United States v. Yellow Cab Co., 338 U.S. 338, 342 [70 S.Ct. 177, 179, 94 L.Ed. 150] (1949); see also Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844 [102 S.Ct. 2182, 72 L.Ed.2d 606] (1982).”

Gilbert, at 52.

As discussed in Gilbert, the legislative history of the VJRA clearly demonstrates that Congress intended the “clearly erroneous” standard applicable to fact review in Article III courts of appeals to be applied by this Court in reviewing BVA findings of material fact. Id. at 52. In sum, “under the ‘clearly erroneous’ rule this Court is not permitted to substitute its judgment for that of the BVA on issues of material fact; if there is a ‘plausible’ basis in the record for the factual determination of the BVA even if this Court might not have reached the same factual determinations, we cannot overturn them.” Ibid.

Under applicable Department regulations, when a condition is not shown to be chronic in service, service connection for a chronic disease, such as chronic prostatitis, is established by a showing of continuity of symptomatology after service. 38 C.F.R. § 3.303(b) (1990). That regulation does not require that the exact same diagnosis be made in service and after service — in the present case the diagnosis in service was “prostatitis-cystitis” (R. at 18) and the present diagnosis is “chronic prostatitis” (R. at 112). Rather, the regulation requires continuity of symptomatology in order to provide a linkage between the in-service and post-service diagnoses.

The appellant contends that the BVA’s finding regarding a lack of continuity of symptomatology is clearly erroneous. But for one aspect of the evidence, the credibility of the claimant’s sworn testimony, this Court would agree. (For the reasons he will set forth at the conclusion of this opinion, the author judge does find clearly erroneous the BVA’s finding that continuity of symptomatology for chronic prostatitis was not established by the new evidence when added to the old evidence of record.)

In its October 10, 1989, decision, the BVA stressed three times in the course of seven sentences the critical nature of what it viewed as a 44-month post-service gap in the appellant’s continuity of symptomatolo-gy. Specifically, the BVA found that “medical findings suggestive of chronic pathology of the urinary tract first appeared several years after discharge ... ”; that “the [newly submitted] evidence ... does .not establish that a chronic urinary/bladder disability was present [until] several years following separation ... ”; and that “the first demonstrable evidence of possible chronic genitourinary disability dates to 1972, several years after separation....” McArthur Jones, loc. no. 929115, at 7 (BVA Oct. 10, 1989).

In order to fill this gap and the 17-month in-service absence of any record of medical care for the urinary problems, the veteran offered as part of his new and material evidence his sworn February 16, 1989, RO hearing testimony that he had sought treatment for “frequent urination” from a private physician in Mississippi within six months after his discharge and that he had sought treatment for the same condition from a private physician in Los Angeles in either late 1969 or early 1970. He further testified under oath that by drinking less *217fluids he had been able to control the “urgency and frequency” urinary problem for the last 17 months of his service.

As we have held in part II.A., above, in reviewing “the former disposition of the claim” as part of a reopening under section 3008 this sworn testimony must be evaluated in the context of (a) the appellant’s medical condition in service, as demonstrated by his undisputed medical records, (b) the 15 years of undisputed medical records from Kaiser Permanente through 1987, (c) the newly submitted undisputed 1987 YA outpatient medical records, and (d) the newly submitted reports of the private physicians. (See the Appendix for a detailed listing of the extensive medical entries in the record.)

In Gilbert, we remanded the case in part because the BVA decision contained “neither an analysis of the credibility or probative value of the evidence submitted by or on behalf of the veteran in support of his claim nor a statement of the reasons or bases for the implicit rejection of this evidence by the Board.” Gilbert, at 59. (See the discussion of the “reasons or bases” statement requirement in 38 U.S.C. § 4004(d)(1) in part II.C., below.) If the appellant’s testimony is found credible in the present case, then, under the “clearly erroneous” standard for our appellate review of BYA fact determinations, we would have the requisite “definite and firm conviction” that this testimonial evidence, when added to the rest of the new and old evidence, demonstrates that the veteran had, indeed, continuously experienced and sought treatment for the last 22 years for many of the same symptoms he experienced in service. However, the majority here is of the view that the assessment of the credibility of the veteran’s sworn testimony is a function for the BVA in the first instance and that it is not for this Court to find (as the author Judge would do for the reasons stated at the end of this opinion) that that sworn testimony, under the circumstances of this case, is credible. That issue will thus be remanded to the Board with a direction to make a specific determination as to the credibility of the veteran’s testimony and to provide a statement of the reasons or bases for that determination.

C. “Benefit of the Doubt” and Statement of “Reasons or Bases”

Two other critical statutory requirements, as also explicated in Gilbert, must be discussed in order to decide this case. Under 38 U.S.C. § 3007(b) (1988), “after consideration of all evidence and material of record in a case” before the Department, if there is “an approximate balance of positive and negative evidence” regarding an issue, the Department and the BVA are to give the claimant “the benefit of the doubt” in resolving the issue. In Gilbert, at 53, we explained the effect of section 3007(b) by concluding, as counsel for the Secretary had agreed in oral argument of that case, that “the preponderance of the evidence must be against the claim for benefits to be denied.”

Under 38 U.S.C. § 4004(d)(1) (1988), a “decision of the Board shall include a written statement of the Board’s findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record....” We held in Gilbert, at 56, that a “bare conclusory statement [by the BVA], without both supporting analysis and explanation, is neither helpful to the veteran, nor ‘clear enough to permit judicial review’, nor in compliance with statutory requirements.” We further held that under sections 3007(b) and 4004(d)(1) combined, the BVA opinion must include “an evaluation of the ‘positive’ evidence ... [and] a weighing of the ‘positive and negative’ evidence ... [and] a § 4004(d)(1) statement of the ‘reasons or bases’ for ... [a] conclusion that the ‘benefit of the doubt’ doctrine does not apply.” Id. at 59. We also held there, as noted in part II.B., above, that the BVA decision must contain “an analysis of the credibility or probative value of the evidence submitted by or on behalf of the [claimant] ... [and] a statement of the reasons or bases for ... rejection of this evidence by the Board.” Id. at 59.

*218In the present case, the October 10, 1989, BVA decision failed to comply with either section 4004(d)(1) or section 3007(b) as construed in Gilbert. The decision runs afoul of section 4004(d)(1) and Gilbert because the decision fails to contain a statement of “reasons or bases” to support its assertion that “[t]he evidence submitted since the prior decision of the Board ... does not establish that a chronic urinary/bladder disability was present during service or for several years following separation therefrom.” McArthur Jones, loc. no. 929115, at 7 (BVA Oct. 10, 1989). As indicated in part II.B., above, the decision is further deficient in failing to provide the Board’s reasons or bases for its implicit rejection of the veteran’s sworn testimony. The BVA decision is deficient under section 3007(b) and Gilbert because it contained only a “bare conclusory statement” {Gilbert, at 57) that “[t]he evidence of record does not raise a reasonable doubt or otherwise warrant allowance of this claim.” Id. at 215.

III. CONCLUSION

In view of the above discussion, we vacate the BVA decision, retain jurisdiction, and remand the record to the BVA for readjudication in three specific respects: For the BVA (1) to assess under section 3008 the new and material evidence in the context of all of the evidence in the case and to state the “reasons or bases” for its assessment as to whether the new evidence fills the evidentiary gap with regard to continuity of symptomatology; (2) to state its “reasons or bases” if it again determines that the benefit-of-the-doubt standard under section 3007(b) is inapplicable to its assessment of the new evidence in the context of the old evidence of record, particularly its reasons or bases for concluding that the preponderance of the evidence is against the claim; and (3) to evaluate the appellant’s evidence, including assessing the credibility of his February 16, 1989, sworn testimony, to weigh the positive and negative evidence, and to provide the Board’s “reasons or bases” for its findings and conclusions in these respects.

VACATED AND REMANDED.

IV. SEPARATE VIEWS

The author judge would go further than the majority, and would hold unlawful and set aside as clearly erroneous under 38 U.S.C. §§ 4061(a)(4) and 3007(b) two dispos-itive BVA findings of material fact in the October 10, 1989, BVA decision. These findings are: (1) that the new and material evidence when considered in the context of the old evidence of record does not establish continuity of symptomatology; and (2) that the appellant’s current chronic genitourinary disability is not associated with the urinary condition he experienced in service. In my view, the only “plausible” reading of the new and material evidence submitted at the time the claim was reopened, when viewed, as required by 38 U.S.C. § 3008, in the context of all of the other evidence of record (summarized in the Appendix), is that continuity of sympto-matology is shown overwhelmingly by the new and old evidence in a way that establishes, as a matter of law, service connection for chronic prostatitis under 38 C.F.R. § 3.303(b) (1990). Hence, I would also conclude that the implicit conclusion that the evidence on the issue of service connection is not at least in equipóse is “arbitrary, capricious, an abuse of discretion, or not otherwise in accordance with law under 38 U.S.C. § 4061(a)(3)(A).” See Gilbert, at 51.

The BVA decision offered no “reasons or bases” (as required by 38 U.S.C. § 4004(d)(1), discussed above) for not accepting the veteran’s sworn testimony as credible. Nor did it or the hearing examiner state that the testimony was not, in fact, credible. Rather, the BVA totally ignored the specifics of the veteran’s sworn testimony about seeking treatment shortly after service and limiting intake of fluid in service. There is no reference whatsoever to that testimony in the “DISCUSSION AND EVALUATION” portion of the BVA decision; nevertheless, the BVA found that the “evidence submitted since the prior decision ... [did] not establish that a chronic urinary/bladder disability was present during service or for several years following *219separation therefrom.” McArthur Jones, loc. no. 929115, at 7 (BVA Oct. 10, 1989) (emphasis added).

The only mention of the veteran’s hearing testimony in the BVA decision is as follows: “[T]he veteran testified in February 1989 before a hearing officer at the [RO]. His testimony was essentially consistent with the ‘CONTENTIONS’ supra.” McArthur Jones, loc. no. 929115, at 5 and 2 (BVA Oct. 10, 1989). The BVA summarized the veteran’s contentions as follows: “It is contended, in essence, that service connection is warranted for the veteran’s bladder/urinary condition.... The veteran maintains that he has received regular treatment for his condition since leaving military service. It is further maintained that there is substantial proof to support the veteran’s contentions.” Id. at 2.

Since the BVA made no finding that the veteran’s testimony is lacking in credibility and said nothing even suggesting such a finding and because I cannot conceive of a basis that I would find “plausible” for rejecting that testimony, I would accept it in light of the substantial corroboration afforded it by the other extensive and undisputed evidence of record, new and old, regarding the continuity of symptomatology. I believe and the majority agrees, that the record demonstrates beyond contradiction that the appellant sought treatment from 1972 to 1988 for many of the same symptoms from which he suffered in service. We are all also in agreement that the evidence of total continuity of symptomatolo-gy in this case is completed by the veteran’s sworn testimony if it is not discredited.

In my view, the surrounding circumstances lend great credence to the veteran’s testimony. The Kaiser Permanente records of continuous treatment from 1972 to 1987 (summarized in the Appendix) exist because they were maintained by a large, well-established, centralized health organization with the resources and continuity to maintain such records. It is understandable that the veteran would not be able to obtain records of treatment provided before he began receiving care from Kaiser or the VA facilities, since such prior treatment would have been sought well over 20 years ago from private physicians with whom he had no reason to remain in contact once he began receiving care from Kaiser almost 20 years ago in 1972.

Corroboration of the veteran’s sworn testimony about seeking treatment during the period between discharge from service and commencement of treatment from Kaiser might be expected to be found in the report of a medical history taken when he began his treatment with Kaiser in 1972. Unfortunately, no such medical history is contained in the Kaiser records that are a part of the record on appeal. R. at 29-36, 46-94.

As I view the impact of the new evidence on the old and undisputed evidence, a remand to the BVA is pointless. Rather, I would set aside the findings of material fact and reverse the decision of the Board on the issue of service connection. Avoiding a fruitless remand for superfluous fact-finding is an action for which support may be found in Supreme Court decisions where the Court reached out to decide the ultimate question even though it had not been properly addressed in the lower courts. “We need not remand for that purpose [to obtain a correct weighing and balancing of competing considerations by the lower court(s) ], however, because the outcome is readily apparent from what has been said above.” Bigelow v. Virginia, 421 U.S. 809, 826-27, 95 S.Ct. 2222, 2235, 44 L.Ed.2d 600 (1975); see also Nixon v. Warner Communications, Inc., 435 U.S. 589, 612 n. 20, 98 S.Ct. 1306, 1319 n. 20, 55 L.Ed.2d 570 (1978) (quoting Bigelow with approval and applying it).

APPENDIX

A. The appellant first sought treatment at the U.S. Army Hospital in Muenchweiler, Germany, on 8/15/66. At that time, it was noted he had been suffering “urethral discharge and mild dysuria for 3 days.” Painful urination was also noted. (R. at 7.) He continued to seek and receive treatment at the hospital until 1/7/67, as follows:

*220The 9/3/66 “chronological record of medical care” noted “some dysuria and mild pain_” R. at 9.

The 11/9/66 “record” noted that the appellant “can’t hold his water x 3 day[s]”. R. at 9.

Another 11/66 (day unreadable) notation reported “recurrence of frequency — no dy-suria”. R. at 9.

On 12/8/66, it was recorded that the appellant “still has frequency ..., nocturia X 4”. R. at 12.

At a 12/21/66 neurology consultation, it was noted that the appellant “has had freq., urgency, dysuria and nocturia ... for approx. 2 mo.” The reason given for the consultation was that “patient is complaining of dysuria for the last 4 months.” R. at 14.

On 1/7/67, it was noted that the appellant’s “complaints have subsided” and a final diagnosis of “prostatitis-cystitis” was made. R. at 18.

B. The following excerpts from the Kaiser Permanente medical records show treatment sought and received at Kaiser by the appellant after service:

The 3/6/72 “clinic progress record” reported “urinating frequently and stinging”. R. at 48.

The 5/5/72 “progress record” reported “urinary frequency”. R. at 49.

The 9/21/72 “progress record” reported “urethral discharge X two days”. R. at 50.

On 7/19/75, the appellant sought treatment for “discharge”. R. at 52.

The 8/22/78 “progress record” reported complaints of “frequent urination”. An impression of “? mild prostatitis” was noted. R. at 59.

The 11/26/78 and 11/30/78 “progress records” noted treatment for “discharge”. R. at 60, 61.

The 12/2/78 “progress record” noted there was “no discharge” but “still burning”. R. at 62.

“Discharge” was again noted in the “progress record” on 1/27/79 and 6/20/79. R. at 63, 65. Another undated “progress record” notation from 1979 reported “urinary discomfort X 2 days”. R. at 64.

The 1/27/81 “progress record” reported “pt. has noted urethral discharge for the past two days”. R. at 66.

The 9/1/82 “progress record” noted that the appellant complained of “burning ... discharge.” R. at 82.

On 9/11/82, the appellant complained of “freq. urinat. X 3 d [days] and dysu-ria_” R. at 84.

On 9/21/83, a clinical physician noted “frequency and nocturia x 2 months”. R. at 86.

A 5/27/83 consultant’s report noted “frequency of urination x 5 mo. Not X 3.” R. at 87.

A “urinary problem” was again noted by a clinical physician on 9/22/83. R. at 89.

On 11/25/85, a clinical physician noted “urgency, frequency, dysuria”. He recorded an impression that the “prostate was slightly enlarged” and recommended a urology evaluation. R. at 90.

On 1/24/86, the “progress record” reported that the “prostate 2 x enlarged and mild tenderness”. R. at 92.

On 2/7/86, “frequency” was reported again. R. at 93.

On 7/18/86, a voiding cystourethrogram was performed, resulting in an impression of “incontinence without demonstrable anatomical cause.” R. at 31.

On 10/6/86, the appellant was started on Ditropan by a Dept, of Urology physician. R. at 33.

On 5/12/87, the appellant was examined by a Dept, of Urology physician who recorded that “the patient has noted recently that he has had increased daytime frequency every 30-45 minutes without leakage. He had nocturia times three.” Ditropan was increased. He was also encouraged “to cut back on his fluids to help control his daytime frequency.” R. at 36.

C. The following excerpts from VA medical records show a continuation of the *221symptomatology revealed in the Kaiser Permanente records:

A VA genito-urinary examination was performed on 5/27/87. An assessment of “possible neurogenic bladder, or possible chronic interstitial cystitis” was made at that time. R. at 42.

VA outpatient medical records from 5/21/87 show that consultation from the Urology Dept, was requested because of “urinary frequency and nocturia X 3.” R. at 101.

VA outpatient medical records from 6/29/87 noted “intermittent frequency 15-ex, nocturia X 3, urgency_” R. at 102.

VA outpatient medical records from 8/3/87 again reported “urgency”, “frequency”, “nocturia X 3”. R. at 103.

VA outpatient medical records from 11/3/87 noted “frequency and mild urgency. Nocturia X 1-2, no dysuria.” “Treated for prostatitis_” R. at 105.

D. The two private physicians’ reports show:

The 4/5/88 report of Dr. Tamarin stated, “the patient currently has an inflamed prostate.... As the patient was treated for a similar condition in 1966, and since we know prostatitis is an entity with periods of exacerbation and remission, it is to me, within a reasonable doubt that the condition which he has currently may at first have appeared during the time the patient was in active duty in 1966-68.” R. at 107.

The 4/8/88 report of Dr. Mansour noted symptoms which included “urgency, urgency incontinence, occasional dysuria, burning and urination.” The impression was of “long standing problem of chronic prostati-tis with acute exacerbation.” R. at 112.

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## Jones v. Derwinski, 1 Vet. App. 471 (1991) {#6727367}

*1 Vet. App. 471*

_Jones v. Derwinski, 1 Vet. App. 471, decided 1991-09-19._

ORDER

PER CURIAM.
On June 4, 1991, William G. Smith, Esq., attorney for appellant McArthur Jones, filed a bill of costs seeking taxation against the Secretary of Veterans Affairs (Secretary) under 28 U.S.C. § 2412(a) and (b) of costs totalling $781.37 incurred in the appeal in Jones v. Derwinski, U.S.Vet.App. No. 90-58 (Apr. 10, 1991). Attorney Smith contends that appellant is entitled to taxation of costs against the Secretary because, having been granted service connection in a May 23, 1991, decision of the Board of Veterans’ Appeals on remand from this Court, appellant has prevailed against an agency of the United States Government. Bill at 1. On consideration of the foregoing and because this is the first instance in which the Court has directly addressed issues involving 28 U.S.C. § 2412, part of the Equal Access to Justice Act (EAJA), it is

OltDERED that, within 45 days of the date of this order, the Secretary and appellant file briefs addressing, inter alia, the following issues:

(1) The Court’s authority, if any, under 28 U.S.C. § 2412(a), (b), and (d), to enter a judgment for costs or fees and expenses of attorneys. Essex Electro Engineers v. United States, 757 F.2d 247 (Fed.Cir.1985); see also In re Davis, 899 F.2d 1136 (11th Cir.1990); Bowen v. Comm’r, 706 F.2d 1087 (11th Cir.1983).

(2) The prerequisites to an award of costs, expenses, and fees under each of the three subsections. See, e.g., as to subsection (b), American Hospital Ass’n v. Sullivan, 60 U.S.L.W. 2034 (D.C.Cir. July 16, 1991); Brown v. Sullivan, 916 F.2d 492 (9th Cir.1990).

(3) Whether, in light of subsections (c)(1) and (c)(2) (in the absence of a determination that the Secretary acted in bad faith), the Court has authority under subsections (a) or (b) to enter a judgment, which would be payable by the Department of Veterans Affairs, for costs or fees and expenses of attorneys. See, e.g., Griffin and Dickson v. United States, 21 Cl.Ct. 1 (1990), in which the Court ordered the Department of Agriculture to pay costs apparently awarded under section 2412(a).

(4) Whether the term “civil action” as used in subsections (a), (b), and (d)— except as further defined in subsection (d)(2)(E) — is limited to actions brought under the Federal Rules of Civil Procedure, see F.R.Civ.P. 2, or may include appeals filed in this Court. See, e.g., as to subsection (d), Wilkett v. ICC, 844 F.2d 867, 870 (D.C.Cir.1988), reh’g en banc denied, 857 F.2d 793 (1988).

(5) The extent to which the Court must or should reach the issue of the applicability of subsection (d) to these proceedings in order to dispose of the pending bill of costs.

(6) The extent to which the specific items for which the petitioner requests reimbursement are covered under each of the three subsections.

The Clerk of the Court is directed to set the matter for oral argument as soon as the business of the Court permits.

*472The Court invites the United States to submit, as amicus curiae, its views on the foregoing questions within 45 days after the date of this order. The Court also invites the brief of any other amicus curiae upon the foregoing questions within 45 days after the date of this order. See U.S.Vet.App.R. 29.

Statement of

STEINBERG, Associate Judge.
I do not concur in the penultimate sentence in the Court’s September 19, 1991, per curiam order singling out the United States for an amicus invitation from the Court.

---

## Jones v. Derwinski, 1 Vet. App. 596 (1991) {#6727474}

*1 Vet. App. 596*

_Jones v. Derwinski, 1 Vet. App. 596, decided 1991-11-27._

MANKIN, Associate Judge,
concurring:

The majority has properly stated the law and the facts of this case but having done so has not gone far enough. I would impose a large monetary sanction against the Secretary for the very conduct described in 38 U.S.C. § 7265(a)(1) as it relates to the Court. Justice as well as the rights of petitioners has been violated.

While the relief granted in this case must necessarily be limited to the petitioners, it is clear that the Court would expect respondent to understand the Court’s position in the event similar fact situations arise in the future.

---

STEINBERG, Associate Judge,
concurring:

I concur fully in the excellent opinion of the Court. As Judge Mankin suggests in his opinion, the holding of this case, although not the injunctive relief, applies to any communication initiated by the Veterans Benefits Administration of the Department of Veterans Affairs (VA) with a VA claimant represented by an attorney. Such communications are unlawful except as provided in the Court’s order, above. The relief granted in this case could not extend expressly to attorney William G. Smith who submitted a brief as amicus curiae. He is not a party to this proceeding as he was in the original consolidated cases, Nagler/Jones v. Derwinski, 1 Vet.App. 297 (1991). Although, in retrospect, in light of the VA’s unwarranted assurances to the Court and VA’s subsequent repetition of unlawful actions, it might appear that the injunctive relief there sought by Mr. Smith, as well as by this case’s petitioners at that time, was warranted, that matter is not presently before the Court.

---

FARLEY, Associate Judge, filed the opinion of the Court. MANKIN and STEINBERG, Associate Judges, concurring, filed separate opinions.

FARLEY, Associate Judge:
Petitioners, Joseph L. Jones and his attorney, Keith D. Snyder, are once again before the Court seeking extraordinary relief and sanctions because of unauthorized and erroneous communication from a Regional Office of the Department of Veterans Affairs. On June 6, 1991, this Court denied their original petition for similar relief, taking care to explain that we were denying the petition in reliance upon statements made by the representative of the Secretary that corrective measures had already been taken and based upon our “trust that if additional steps need to be taken to prevent unauthorized and erroneous communications with represented clients the Secretary will take them”. Nagler/Jones v. Derwinski, 1 Vet.App. 297, 306 (1991). From this second petition, it now appears that both our reliance and our trust were misplaced and that petitioners are entitled to relief.

I. FACTUAL AND PROCEDURAL BACKGROUND

On March 27,1991, this Court consolidated for oral argument petitions for extraordinary relief and sanctions in two separate cases. In each, petitioners alleged that there had been unauthorized and erroneous communications from components of the Department of Veterans Affairs (VA) with claimants represented by attorneys concerning the substance of the representation being provided and the nature of any fee agreements. In one of the consolidated cases, Nagler v. Derwinski, 1 Vet.App. 297, petitioner specifically alleged that a Regional Office (RO) had sent a letter to a represented claimant which contained outdated and wrong information and which impaired the attorney-client relationship, inter alia, by implying that the fee agreement could result in the criminal conviction of the attorney. The Court found that there was indeed a factual predicate for these allegations.

The files of this Court contain unrebut-ted evidence that Regional Offices, on their own, not only have communicated directly with represented claimants in connection with fee agreements but have made statements which were outdated, wrong as a matter of law, and which, by their nature, could only have impacted adversely upon the relationship of the attorney-petitioners with their clients.... [T]he Secretary does not deny that erroneous information was communicated directly to claimants known to be represented but dismisses the communication — as did the BVA rather grudgingly, without any expression of regret, and without the demanded clarification — as inadvertent and not harmful. In our view, the Secretary’s cavalier approach evidences a profound misunderstanding of the seriousness of this matter.

Nagler/Jones, at 805. The Court continued:

It is difficult to conceive of a communication which a government agency could issue to an attorney’s client which would be more injurious to a professional relationship. It is even more difficult to conceive of a reason why the RO should communicate with an attorney or a client concerning the terms of a fee agreement. The Secretary has not cited, and we have not found, any statutory authority for the review of fee agreements by Regional Offices or for any communication from Regional Offices with attorneys or their clients in connection with the terms of fee agreements.

Id. at 306.

Although the Court refrained from issuing an extraordinary writ or imposing sane-*599tions, it clearly indicated that its restraint was motivated by its reliance upon statements made during oral argument by the Secretary’s representative who “advised that the new Chairman of the Board of Veterans’ Appeals had attempted to remedy the problem by reminding all of the Regional Offices and, presumably his own staff, that obsolete forms, and obsolete legal advice must not be communicated”. Id. at 306. The Court also presumed that the Secretary would act to prevent the “repetition of this egregious unprofessional conduct” (id. at 306):

Although the Chairman of the BVA may not have statutory or regulatory power to dictate policy to the Regional Offices, just as we trust that the Board will refrain from the premature and unauthorized review of fee agreements, we also trust that if additional steps need to be taken to prevent unauthorized and erroneous communications with represented clients the Secretary will take them. Under these circumstances, following the example of Erspamer [v. Derwinski, U.S.Vet.App. No. 89-14 [1 Vet.App. 3] (Feb. 23, 1990), appeal dismissed per agreement of the parties, No. 90-7001 (Fed.Cir. June 28, 1990) ], we decline to issue the writs requested by petitioners.

Id.

Notwithstanding the June 6, 1991, decision of this Court in Nagler/Jones, a VA hearing officer in the Cleveland RO sent a letter dated August 13, 1991, to appellant Jones, which contained unsolicited legal advice with respect to, inter alia, the nature and scope of attorney Snyder’s representation of Jones and the permissible terms of any fee agreement between Mr. Jones and Mr. Snyder. The letter, which also emphasized the criminal sanctions which could be imposed for violation of fee statutes, was, as the Secretary agrees, filled with inaccurate statements and legal judgments which were wholly wrong as a matter of law. It was this letter which prompted the appellants to file, on August 21, 1991, a Second Petition For Extraordinary Writ and Sanctions (Second Petition), seeking once again to enjoin the RO from contacting Mr. Snyder’s clients regarding fee arrangements and to impose monetary sanctions for interference with the attorney-client relationship.

On August 28, 1991, the Court ordered the Secretary to respond to the Second Petition and set the petition for oral argument. On September 3, 1991, the Court granted the motion of William G. Smith, Esquire, a petitioner in the original consolidated case, to submit an amicus curiae brief.

Shortly after filing the Second Petition, attorney Snyder received a letter dated August 27, 1991, from the VARO in San Diego which included, inter alia, VA Form 2-22a (APR 1991), entitled “Appointment of Attorney or Agent as Claimant’s Representative”. Block 11 of Form 2-22a (APR 1991), headed “Fee Agreement Filing Requirements”, which specifically requests that the represented veteran and his representative indicate if they are claiming an exemption from the statutory requirement that any fee agreements be filed. Block 12 contains language which appears to require an agreement by the veteran and the representative, as a result of their each signing the form, that “no fee or compensation will be charged or received for services rendered ... except as provided” by referenced statutes. Because there is neither a statutory requirement that a fee agreement exist, nor any statutory “exemptions”, nor any authority which mandates that the claimant and the attorney agree to be bound by the statute as a condition of representation, on September 4, 1991, petitioners filed an Amended Second Petition For Extraordinary Writ and Sanctions (Amended Second Petition). The Amended Second Petition seeks, in addition to the relief requested in the original Petition, to enjoin Regional Offices from distributing VA Form 2-22a (APR 1991) until the form is revised.

The Secretary’s response, which was filed on September 5, 1991, conceded that the August 13, 1991, letter was unauthorized, wrong as a matter of law, and contrary to the letter and the spirit of the Nagler/Jones opinion:

*600It was well settled in Nagler[/Jones] v. Derwinski, supra, that “any communication from Regional Offices with attorneys or their clients in connection with the terms of fee agreement[s]” is absolutely prohibited. Id. at 13 [306]. The communication here clearly contravened the explicit holding in Nagler[/Jones] Not only was it without authority, but it might be deemed injurious to the professional relationship of attorney and client.

Respondent’s Answer to Second Pet. (Resp. Ans.) at 4.

Oral argument was held on September 10,1991. On September 25,1991, pursuant to an order of the Court, supplemental memoranda were filed by petitioners and the Secretary. On October 28, 1991, the Court granted the Secretary’s motion for leave to file an additional exhibit, a new VA “publication generated by the Office of the General Counsel, entitled ‘Court of Veterans Appeals Notes’ ”. Respondent’s Motion for Leave (Resp. Mot.) at 2. On October 30, 1991, the Court granted the motion of petitioners for leave to file additional exhibits. The proffered exhibits consist of correspondence between petitioner Snyder and the VARO in San Juan, Puerto Rico.

II. THE AUGUST 13, 1991, LETTER AND INJUNCTIVE RELIEF

A.

There is no dispute that the August 13, 1991, letter from the Cleveland RO to appellant Jones was without legal authority, wrong as a matter of law, and contrary to this Court’s June 6, 1991, opinion. The Secretary concedes as much:

Unfortunately, a little over two months after the issuance of the Nagler[/Jones] opinion, due to a series of unforeseen and regrettable circumstances, inadvertent repetition of unauthorized and erroneous communication occurred in the companion case Jones, involving the Cleveland VARO.

Id. at 3-4. Indeed, the Secretary underscored the seriousness of the breach and failure to comply with Nagler/Jones: “The communication here clearly contravened the explicit holding in Nagler[/Jones] Not only was it without authority, but it might be deemed injurious to the professional relationship of attorney and client.” Id. at 4 (emphasis added). At oral argument, counsel for the Secretary agreed that the letter “is wholly incorrect legally”. Hearing of September 10, 1991, Transcript (hereinafter “Tr.”) at 26. In the Secretary’s supplemental response it is noted that “the fourth and fifth paragraphs [of the August 13, 1991, letter] contain statements which inaccurately describe current law pertaining to attorney fees payable in VA claims matters”. Respondent’s Supplemental Memorandum (Resp.Supp.Mem.) at 3. Petitioners assert far more pervasive errors. See Petitioners’ Supplemental Memorandum Addressing Legality of Statements in August 13, 1991, Letter.

B.

However, the unauthorized and inaccurate letter of August 13, 1991, is only a symptom of a larger problem. The Amended Second Petition, the consequent filings and oral argument unequivocally document that no meaningful steps were taken, either before or after the Court’s June 6, 1991, decision in Nagler/Jones, to ensure that such letters were not sent by the Regional Offices. In essence, the Secretary’s response to this Amended Second Petition consisted of a recitation of the actions taken, or, for the most part, actions not taken, by subordinate components of the Department of Veterans Affairs. For example, the author of the August 13, 1991, letter advised that he “was unaware of the Court of Veterans Appeals decision of June 6, 1991”. Resp.Ans., Ex. 1 at 2. This is not surprising in view of the direction and attitude that characterized an internal communication, dated April 23, 1991, which emanated from the Director of the VA’s Compensation and Pension Service (C & P):

Á COVA decision which remands a case to BVA does not require revision of regulations or procedures. A COVA decision which does not establish a new legal principle or void an existing regulation does not require nationwide attention. *601COVA decisions are based on facts presented in an individual case and not on legal theory.

Resp.Supp.Mem., Ex. 10 (emphasis added). In hindsight, it is also not surprising that the hearing officer in Cleveland never received either the Nagler/Jones decision or guidance from his supervisors or superiors in C & P. The individual in C & P “designated to act as liaison ... with the Board of Veterans[’] Appeals and the General Counsel of the Department of Veterans Affairs” personally did not learn of the Nagler/Jones decision until he “obtained a copy of the decision from the Court in mid-August”. Resp.Ans., Ex. 4 at 1-2.

At oral argument on the Second Amended Petition, which was held on September 10, 1991, the Acting General Counsel, with commendable candor, stated that the VA, almost three years after enactment of the Veterans’ Judicial Review Act (Pub.L. No. 100-687, Div. A., 102 Stat. 4105 (1988) (VJRA)), and two years after the convocation of this Court, was still not prepared for judicial review:

We weren’t prepared for its impact on us, we weren’t prepared for the impact it would cause on the whole process; and we have been slow to react. And it is just like an ocean liner, it has been very difficult and frustrating stopping [it] and getting started in another direction.

Tr. at 27.

We find the Acting General Counsel’s analogy to an ocean liner to be a particularly apt one, though perhaps not for the reason it was proffered. Arduous as it may be, ocean liners do change course on the high seas. The decision to initiate a change, however, does not come from the engine room or the radio room, from the ship’s purser, engineer or doctor. On the contrary, the order to change course comes from the top, the captain on the bridge. We find nothing presented in this case up to and during the oral argument on the Second Petition which would indicate that there was, in fact, a decision made at the top — at the Secretarial level — to change the course of the Department of Veterans Affairs with respect to judicial review and the decisions of this Court.

However, it does appear from materials filed and developments occurring subsequent to the oral argument that, as a result of the Second Amended Petition in this case, orders have issued from the bridge and that the course of the VA may indeed be changing. Exhibit 13 to Respondent’s Supplemental Memorandum consists of a memorandum from the Secretary of Veterans Affairs dated September 17, 1991, and directed to the senior officers in the VA. The memorandum, entitled “Judicial Review Implementation”, takes note of the “need for improving our process of disseminating and implementing the decisions handed down by the new Court of Veterans Appeals”, and concludes that “we are committed to assuring the Court, and our veterans, that we are aware of the mandate of the law as interpreted by the new Court, and are implementing it properly and promptly”.

On September 23, 1991, the Chief Benefits Director issued Circular 20-91-19 (Resp.Sup.Mem., Ex. 15), which forwarded “for immediate implementation” the instructions of the General Counsel designed to prevent “future improper communications with respect to fee agreements between claimants and their attorneys”. A memorandum dated September 19,1991, by the Acting General Counsel (Resp.Supp. Mem., Ex. 14), directs all district counsels to discuss the Secretary’s September 17, 1991, memorandum with regional directors and adjudication officers and to emphasize the need for the implementation of the decisions of this Court in general and the Nagler/Jones decision in particular.

At oral argument, the Acting General Counsel advised that a digest of this Court’s opinions would be prepared quarterly and distributed to the Board of Veterans’ Appeals and the Compensation and Pension Service for further distribution to the Regional Offices. Tr. at 28. He stated that he and other senior officials of the VA would meet with representatives of veterans groups and other interested persons (he specifically invited attorney Snyder) to *602discuss the digest presently in preparation as well as other proper and effective means of communicating and effectuating the decisions of this Court. In addition, the Acting General Counsel committed himself to

a new process where besides providing copies of decisions of the Court to the [VA’s Veterans Benefits Administration], my office will provide written interpretative guidance to the [Chief Benefits Director] at the time of transmittal with respect to any decisions of the Court which address legal issues in a manner that calls for VA procedures to be reevaluated or modified or which otherwise necessitates review of broad legal or policy issues.

Tr. at 30. As noted in Part I, supra, a copy of the first issue of this digest of the Court’s opinions, which is dated October 1991 and entitled “Court of Veterans Appeals Notes”, was filed with the Court on October 28, 1991. Resp.Mot. at 2. The Secretary notes that the publication will be updated quarterly and distributed within the Department and “to the major veterans service organizations, the National Association of State Veterans’ Affairs Directors, and the Chairmen and Ranking Minority Members of the House and Senate Veterans’ Affairs Committees”. Id.

C.

While petitioners can take some consolation in the fact that their efforts appear to have succeeded in initiating a positive change of course by the Department of Veterans Affairs, they are entitled to more than just consolation. Petitioners should not have had to resort to this Court to secure a change which should have been initiated by the Department itself. Had appropriate directions been issued and followed, there would have been no improper conduct in the first instance and no August 13, 1991, letter in the second. Had the misrepresentations made by the Secretary’s representative at the hearing on the original petition been corrected, the Court may well have been compelled to initiate the change in course which the Department had been resisting. In sum, petitioners were forced to expend time, energy and funds to seek redress of grievances which resulted from the Department’s “egregious unprofessional conduct” {Nagler/Jones, at 306) and the breach of professional obligations by the Secretary’s representatives described in Part IV, infra.

Congress specifically provided that this Court would “have such assistance in carrying out of its lawful writ, process, order, rule, decree, or command as is available to a court of the United States”. 38 U.S.C. § 7265(b) (formerly § 4065(b)). This “assistance” includes the authority to exercise jurisdiction under the All Writs Act, 28 U.S.C. § 1651(a). See Erspamer v. Derwinski, 1 Vet.App. 3 (1990). As we said in Erspamer, there is a two-pronged test which must be satisfied for such relief. Id. at 9. Petitioners have fulfilled this test because they have demonstrated both that they are entitled to injunctive relief and that there is available no other adequate means of ensuring that they will be free from erroneous and unauthorized communications from the VA Regional Offices concerning fee agreements. Nagler/Jones, at 302-03. In the words of the Secretary, “the [August 13, 1991, letter] clearly contravened the explicit holding in Nagler. Not only was it without authority, but it might be deemed injurious to the professional relationship of attorney and client”. Resp.Supp.Mem. at 4. Recent actions by the Secretary and the Department ultimately may result in effective corrective action but the history of this case demonstrates that promises or reports of corrective action are not adequate. Accordingly, the Secretary will be prohibited from making all such erroneous and unauthorized communications.

III. VA FORM 2-22a AND INJUNCTIVE RELIEF

A.

The Secretary argues that VA Form 2-22a (APR 1991), “Appointment of Attorney or Agent as Claimant’s Representative”, and its predecessors, enables the VA to fulfill a specific statutory mandate. The purposes of the current form, which was *603revised in April 1991, are to enable a veteran to formally appoint a representative and to provide the VA with the name and address of that representative so that, among other purposes, contact can be properly initiated and continued with respect to the claim. The form also serves as a record of the claimant’s consent or refusal to consent to the limited disclosure of records which are subject to protection under 38 U.S.C. § 7332 (formerly § 4132). The form advises both the claimant and the representative of the precise statute, 38 U.S.C. § 5904(c) (formerly § 3404(c)), which governs representation. Moreover, VA Form 2-22a (APR 1991) does not constitute communication from the Regional Office; it is the vehicle used by the claimant and the representative to communicate to the RO the existence of the representative relationship. Petitioners do not take issue with the continued use of VA Form 2-22a (APR 1991) in any of these respects, and we find that the general employment of VA Form 2-22a (APR 1991), except as detailed below, does not offend the letter or the spirit of Na-gler/Jones.

Petitioners’ complaint is specifically directed to blocks 11 and 12 of Form 2-22a (APR 1991). Block 11, which is headed “Fee Agreement Filing Requirements”, provides as follows:

In instances where payment of fees for representation is permitted under section 5904(c), Title 38, U.S.C., a copy of the agreement for the payment of such fees must be filed at the following address unless an exemption applies: Special Assistant for Legal Affairs (01C3), Board of Veterans Appeals, 810 Vermont Avenue, NW, Washington, DC 20420. If an exemption from filing is claimed, please check one of the following: _Represen-tation is at no cost. _Fees are being paid by a disinterested third party.

As petitioners argue, block 11 contains misleading and erroneous information about fee agreements because it indicates that “where payment of fees ... is permitted ... a copy of the agreement ... must be filed”. The governing statute, 38 U.S.C. § 5904, does not require that a representative enter into a fee agreement with a veteran; it requires only that if there is representation before the VA or the Board after “the Board first makes a final decision” the representative “shall file a copy of any fee agreement ... with the Board at such time as may be specified by the Board”. 38 U.S.C. § 5904(c)(2) (emphasis added). Similarly, 38 U.S.C. § 7263(c) (formerly § 4063) provides that, with respect to representation before this Court, a representative “shall file a copy of any fee agreement ... with the Court at the time the appeal is filed”. (Emphasis added.) Further confusion results from the statement that the fee agreement must be filed “unless an exemption is claimed” because the statute does not provide for exemptions.

As to block 12, it seems to require that the claimant and the attorney or agent signing Form 2-22a signify their “agree[ment]” that “pursuant to Chapter 59, Title 38, U.S.C., no fee or compensation shall be charged or received for services rendered under this power of attorney in the adjudication of claims before the Department of Veterans Affairs except as provided in sections 784 and 3404, Title 38, U.S.C.” The use of the words “It is understood that” constitutes an unauthorized, misleading, and damaging communication about fee agreements from the VA to attorneys and their clients in violation of our opinion in Nagler/Jones.

First, the Secretary has no authority to require such an undertaking by the attorney and client. The Secretary does appear to have substantial authority under 38 U.S.C. § 5904(a) and (b) (formerly § 3404) to communicate with, and regulate representational activities by, attorneys (and agents) in connection with recognizing them for claims representation before the Department and suspending them from such practice for engaging in certain specified conduct (including violation of any laws administered by the VA). This authority clearly permits the VA to require an attorney (or agent) applying for recognition to certify as to satisfaction of certain basic statutory qualifications (good moral character, training, and competence, for ex*604ample) and would seem to permit the VA to require an attorney (or agent) applicant to agree to follow the law governing representation. But VA communication, in connection with such matters, with claimants represented by attorneys is another matter entirely. We would be loathe to find authority for VA communication to such represented claimants except where that authority is expressly provided by statute, such as in 38 U.S.C. § 7104(e) (formerly § 4004) with respect to sending copies of BVA decisions directly to the claimant as well as any representative, or where the Secretary is carrying out a “quasi-judicial” function as to which the claimant’s interest may be adverse to the attorney’s (see Na-gler/Jones, at 303-05), or where the VA, pursuant to 38 U.S.C. § 5904(b), is investigating a complaint of improper or unauthorized practice or conduct by a representative. Hence, we find all other such VA communication to represented claimants to be unauthorized.

Second, an attorney is already bound, by his oath upon admission to the bar of any state or other jurisdiction and as an officer of the court, to adhere to the highest standards of moral conduct; this subsumes upholding all laws. See Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 249, 77 S.Ct. 752, 761, 1 L.Ed.2d 796 (1957) (Frankfurter, J., concurring) (“It is a fair characterization of the lawyer’s responsibility in our society that he stands ‘as a shield,’ ... in defense of right and to ward off wrong. From a profession charged with such responsibilities there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been com-pendiously described as ‘moral character’.”); 7 C.J.S. Professional Misconduct § 77 (1980) (“[professional misconduct includes violations of the oath of office and any conduct which tends to bring reproach on the legal profession or to alienate the favorable opinion which the public should entertain concerning it”). More generally, the American Bar Association’s Model Rules of Professional Conduct state in part: “A lawyer’s conduct should conform to the requirements of the law, both in professional service ... and personal affairs.” Model Rules of Professional Conduct Preamble (1989). See also Model Code of Professional Responsibility DR 1-102(A)(4) (1969) (prohibiting lawyer from engaging in conduct “involving dishonesty, fraud, deceit, or misrepresentation”).

Third, a client must be able to trust that an attorney will uphold the law, in order for a productive attorney-client relationship to develop. See Nagler/Jones, at 305 (“the very core of the attorney-client relationship ... must be firmly rooted in trust and confidence”). Consequently, the suggestion to the client by the Secretary, through block 12, that an attorney’s oath generally is not sufficient to ensure that he or she will uphold the law, but rather must be supplemented by an express agreement to do so, serves to undermine the trust reposed in the attorney by his or her client, thereby impermissibly disrupting the attorney-client relationship.

Moreover, the words “It is understood and agreed that” not only exceed the Secretary’s authority and disrupt the attorney-client relationship, but they also create confusion by giving the mistaken impression that the Secretary has some responsibility to monitor the payment of attorney fees as to VA benefits claims. Such review is a responsibility reposed by statute in the Board of Veterans’ Appeals as to representation undertaken before it or the VA, see 38 U.S.C. § 5904(c)(2) (formerly § 3404); In the Matter of the Fee Agreement of William G. Smith in Case Number 90-58, 1 Vet.App. 492, 495-96 (1991) (per curiam), and in the Court as to representation undertaken before it, see 38 U.S.C. § 7263(c), (d) (formerly § 4063); In re Smith, at 495 (per curiam), 13 (concurring opinion).

For these reasons, we are compelled to agree with the petitioners that block 11 of VA Form 2-22a (APR 1991) and the words “It is understood and agreed that” in block 12 are misleading and without statutory authority. Accordingly, the Secretary will be prohibited from transmitting blank cop*605ies of VA Form 2-22a (APR 1991) to claimants and representatives which do not have block 11 and the offending language of block 12 deleted or masked.

B.

On October 30, 1991, the Court granted the motion of petitioners for leave to file additional exhibits. The proffered exhibits consist of correspondence between petitioner Snyder and the VARO in San Juan, Puerto Rico. By letter dated August 22, 1991, Mr. Snyder advised the San Juan VARO that he was representing a veteran, requested that all contacts with the client be “directed to me solely as his attorney”, and enclosed both a copy of the fee agreement and a power of attorney executed by the veteran which, by its terms and in bold type, “revoke[d] any prior powers of attorney”. Petitioners’ Motion for Leave, Ex. 2.

The VARO Adjudication Officer, in a letter dated October 11, 1991, advised Mr. Snyder that the current “Power of Attorney must remain in effect until we have received a statement signed by your client, showing the nature and extent of your representative capacity. The statement should also state whether the prior Power of Attorney is to remain in effect or be revoked”. Id. at Ex. 3. Enclosed with the Adjudication Officer’s letter was a July 1985 version of VA Form 2-22a which indicated that “a fee not exceeding ten dollars ($10) may be paid to the ... attorney”. Id. at Ex. 4.

The Adjudication Officer sent Mr. Snyder an outdated VA Form 2-22a on October 11, 1991, thirty-one days after oral argument in this case, twenty-four days after the Secretary’s memorandum on the subject of “Judicial Review Implementation” (Resp. Supp.Mem., Ex. 13), and eighteen days after the Chief Benefits Director issued Circular 20-91-19 which was intended to prevent “future improper communications with respect to fee agreements between claimants and their attorneys”. Id. at Ex. 15. Simply stated, the July 1985 version of the form predates by three years the VJRA, and the repeal of the ten dollar attorney fee limitation contained therein; the information on the form is wrong as a matter of law, and it has been wrong since the VJRA was enacted on November 18, 1988. Use of such an outdated form, which can only spread confusion and misinformation and impair the privileged relationship between a claimant and his or her representative, cannot be permitted. Accordingly, the Secretary will be prohibited from using any editions of VA Form 2-22a which predate the enactment of the VJRA.

IV. SANCTIONS

A.

During the oral argument of the initial petition for extraordinary writ and sanctions, in response to a specific question from the Court, the Secretary’s representative expressed the belief “that the Chairman of the BVA has written all regional offices recently (during the pendency of this action, frankly) redemonstrating [sic] them not to contact attorneys in any of these type cases”. Resp.Ans. at 7. The Court, in denying the request for extraordinary relief and sanctions, made specific reference to its having been “advised that the new Chairman of the Board of Veterans’ Appeals had attempted to remedy the problem by reminding all of the Regional Offices, and presumably his own staff, that obsolete forms and obsolete legal advice must not be communicated”. Na-gler/Jones, at 306. It was only “[u]nder these circumstances” {id. at 306), that the Court was willing to refrain from granting the requested relief.

It is now clear that the belief of the Secretary’s representative, a belief which we have no doubt was held and expressed in good faith, was not factually accurate. It is also clear that the Secretary’s representative learned immediately after oral argument that the belief expressed was, in fact, erroneous. Resp.Supp.Mem. at 9-11. Yet no effort was made to advise the Court promptly of the inaccuracy either after oral argument or after issuance of the opinion which had expressly relied on that statement. The fact that no guidance had been given by the Secretary, or anyone else, to the Regional Offices with respect to com*606munication with represented claimants, particularly about fee agreements, did not come to light until the filing of the second petition.

Although the Secretary acknowledges that the failure to correct the record was “regrettable” (id. at 11), he offers as justification the belief “that sufficient action had been taken to ensure that the substance of his statement to the Court at the argument had been effectuated”. Id. at 10. This statement, however, evidences errors of judgment on at least two levels.

The first and most obvious error is a factual one: the second belief was as mistaken as the first. The August 13, 1991, letter demonstrates that remedial measures certainly had not been “effectuated”. The second error of judgment, while perhaps not as obvious, is nevertheless even more serious: The Secretary and his representatives were under a duty to correct the record, not to decide for themselves whether subsequent developments were sufficient to justify after the fact a statement which was wrong when it was made. It was for the Court to determine whether the efforts were sufficient to forestall extraordinary relief or sanctions.

The importance of the second misjudgment cannot be overstated. While, of course, great care should be taken to prevent such occurrences, and “I do not know but will find out and advise the Court” may be an acceptable response in some instances, the Court recognizes that misstatements can occur under the fire and heat of oral arguments, particularly under the circumstances presented here when the Court had to turn to a supervisory attorney when the attorney arguing the case was unable to respond to its inquiry. Nonetheless, the Court must be able to rely upon the representations of those who practice before it and there is an inherent professional obligation imposed upon attorneys to correct misstatements. See, e.g., Model Rules of Professional Responsibility Rule 3.3 (1989) (Candor Toward the Tribunal, section 3.3(a)(4) provides in pertinent part: “If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.”); Model Rules of Professional Conduct for Federal Lawyers Rule 3.3 (1990). Here, the major breach was the failure to correct the statement once it was learned that it was inaccurate, a failure which was compounded by the fact that no effort was made to correct the misstatement after it specifically was relied on by the Court in its decision.

B.

Congress invested the Court with the

power to punish by fine or imprisonment such contempt of its authority as—

(1) misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;

(2) misbehavior of any of its officers in their official transactions; or

(3) disobedience or resistance to its lawful writ, process, order, rule, decree, or command.

38 U.S.C. § 7265 (formerly § 4065). Even if Congress had not chosen to convey express authority to punish for contempt, this Court would have the power to sanction those who abuse the judicial process under the “inherent power of the federal courts”. Chambers v. NASCO, Inc., — U.S. -, 111 S.Ct. 2123, 2132, 115 L.Ed.2d 27 (1991); Ex Parte Robinson, 19 Wall. 505, 22 L.Ed. 205 (1873); Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242 (1821).

From the “moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they became possessed of this power [to punish contempt] ... by fine or imprisonment”. Ex Parte Robinson, 19 Wall. at 510-12, 22 L.Ed. at 207-08. This inherent power “is essential to the preservation of order .. and to the enforcement of the judgments, orders and writs ... and consequently, to the due administration of justice”. Id., 19 Wall. at 510. See also Anderson, 6 Wheat. at 227, 5 L.Ed. at 248 (“courts of justice are ... vested, by their very creation, with power to impose silence, respect, and decorum, in their presence, and submission to their lawful mandates”). *607“These powers are ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” Chambers, 111 S.Ct. at 2132 (quoting Link v. Wabash R. Co., 370 U.S. 626, 630-31, 82 S.Ct. 1386, 1389, 8 L.Ed.2d 734 (1962)). Included within the scope of this inherent power is the authority to discipline attorneys before the court: “[t]he power of a court over members of its bar is at least as great as its authority over litigants.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 766, 100 S.Ct. 2455, 2464, 65 L.Ed.2d 488 (1980); see also Ex Parte Burr, 9 Wheat. 529, 531, 6 L.Ed. 152, 152 (1824).

That this Court was created under Article I rather than Article III is of no moment because Article I courts exercise the judicial power of the United States (Freytag v. Commissioner of Internal Revenue, — U.S. -, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991)), are courts of the United States (id.), and have been held to have inherent power to punish for contempt. Case v. Case, 937 F.2d 1014, 1023 (5th Cir.1991) (“The power to assess attorneys fees, like other inherent powers ... is based on the need to control court proceeding^] and necessity of protecting the exercise of judicial authority in connection with those proceedings. [Citations omitted.] These principles are equally applicable to the bankruptcy court.”).

The existence of inherent power to punish does not carry with it the unfettered authority to exercise such power. As the Court said in Chambers,

Because of their very potency, inherent powers must be exercised with restraint and discretion. [Citations omitted.] A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process. As we recognized in Roadway Express, outright dismissal of a lawsuit, which we had upheld in Link, is a particularly severe sanction, yet is within the court’s discretion. 447 U.S., at 765, 65 L.Ed.2d 488, 100 S.Ct. 2455 [2463]. Consequently, the “less severe sanction” of an assessment of attorney’s fees is undoubtedly within a court’s inherent power as well. Ibid.

111 S.Ct. at 2132.

In addition to exercising restraint and discretion, a court considering sanctions, whether based on inherent or express statutory authority, must take care to determine that the conduct at issue actually abused the judicial process. See Roadway Express, 447 U.S. at 766, 100 S.Ct. at 2464 (“a court ... certainly may assess those expenses [counsel fees] against counsel who wilfully abuse judicial processes”). “Mere disrespect, insult, or an affront to a court’s sense of dignity are insufficient.” See United States v. Thoreen, 653 F.2d 1332, 1340 (9th Cir.1981), and the cases cited therein.

In the matter at issue, the Court is convinced that the failure on the part of the representatives of the Secretary to correct a statement which they learned was false directly abused the judicial process and that sanctions are warranted. The failure to correct promptly a statement made in response to a direct question from the Court, a statement which was discovered to have been false and which was expressly relied upon by the Court, constituted “misbehavior [which obstructed] the administration of justice.” 38 U.S.C. § 7265(a)(1). The Secretary “strongly urge[s] the Court that any failure [to correct the record] was of an institutional, and not personal, nature”. Resp.Supp.Mem. at 12. Although the distinction may not be of interest to petitioners, it is of considerable import to the Secretary’s representatives. If the improper conduct was solely due to individual “fault or negligence”, then the individual attorney would be personally responsible for the satisfaction of a financial sanction. 44 Comp.Gen. 312 (1964). On the other hand, “the United States may bear expenses, including court-imposed sanctions, which a government employee incurs because of an act done in the discharge of his official duties”. 59 Comp. Gen. 489 (1980). Under the unique circumstances presented by this case, the Court is inclined to agree with the Secretary that *608the errors of judgment were indeed institutional, but this conclusion does not lessen the seriousness of the offense which, in the Court’s view, compels the imposition of sanctions.

The Court has given very serious consideration to imposing a fine, such as petitioners requested, based on the misconduct of the Secretary’s representatives. However, in view of the actions very recently taken by the Secretary, the Acting General Counsel and the Chief Benefits Director, a majority of this panel does not find that sanctions beyond the payment of expenses and attorney fees are necessary at this time. For the second time in this case, the Court will exercise restraint but, in so doing, it is not unmindful of the breach of trust which prompted this Second Petition. It would be fair to surmise that the Court’s patience is not limitless; indeed, as suggested by the concurring opinion, the limit has been reached in this case.

Pursuant to its statutory authority, the Court will require the Secretary, as a sanction, to compensate petitioners for the expenses and the professional time invested in this Second Petition. While it has yet to be determined whether the Equal Access to Justice Act, 28 U.S.C. § 2412, applies to proceedings before this Court, we will use the provisions of that Act as a guide to the intent of Congress with respect to the appropriate measure of amount of the attorney fees to be assessed against the Secretary.

V. RELIEF

Based upon the foregoing, with respect to the petition for extraordinary relief, it is:

ORDERED that the Secretary of Veterans Affairs, directly and indirectly by the official acts of officers or employees of the Department of Veterans Affairs under delegation, redelegation, or assignment from the Secretary, such acts having “the same force and effect as though performed or rendered by the Secretary” (38 U.S.C. § 212(a)), is prohibited from:

1.Initiating communication by the Chief Benefits Director or employees of the Veterans Benefits Administration with any claimant represented (now or in the future) by petitioner Snyder concerning such representation and the nature and scope of any fee agreement, except where such communication is in furtherance of an investigation or proceeding conducted pursuant to 38 U.S.C. § 5904(b);

2. Sending, transmitting, or in any way disseminating to claimants or representatives blank editions of VA Form 2-22a which predate the date of enactment of the VJRA, November 18, 1988; and

3. Sending, transmitting, or in any way disseminating to claimants or representatives blank copies of VA Form 2-22a (APR 1991) unless block 11 and, insofar as it pertains to attorneys, the clause “It is understood and agreed that,” of block 12 are deleted or masked.

With respect to the petition for sanctions, it is:

ORDERED that, pursuant to 38 U.S.C. § 7265, as a sanction for the abuse of the judicial process by the Secretary’s representatives in failing to correct promptly a statement to the Court during oral argument which they subsequently learned was false, the Secretary will reimburse petitioners for the expenses and professional time invested in the prosecution of the second petition; it is further

ORDERED that petitioners, within fourteen days after the date of this order, file with the Court and serve upon the Secretary an itemization of the expenses and the professional time invested as a result of the Second Petition and the Amended Second Petition. Petitioners may include an argument with respect to any “special factors” they believe warrant the imposition of compensation at a rate higher than the statutory rate of $75 per hour (28 U.S.C. § 2412(d)(2)(A)); it is further

ORDERED that the Secretary may respond to petitioners’ itemization and argument, if any, such response to be filed within 14 days after the date of the petitioners’ filing; and it is further

ORDERED that the Secretary’s Motions for Extension of Time to Respond to Petitioners’ Pending Motion filed on November *6096, 1991, and November 20,1991, are denied as moot; the “pending” motion was granted by order of this Court dated October 30, 1991.

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## Jones v. Derwinski, 2 Vet. App. 7 (1991) {#6727513}

*2 Vet. App. 7*

_Jones v. Derwinski, 2 Vet. App. 7, decided 1991-11-22._

ORDER

It is ORDERED, sua sponte, that pursuant to Rule 3(d), the above-captioned, appeals are consolidated for all purposes. It is further

ORDERED, sua sponte, that these consolidated appeals will be heard and decided by the Court en banc. The Court requests that, not later than December 4, 1991, all parties and amici submit to the Clerk an original plus seven copies of each brief. It is further

ORDERED, sua sponte, that the November 8, 1991, order setting oral argument in Jones v. Derwinski, U.S.Vet.App. No. 90-58, is vacated. It is further

ORDERED that the motion of the Secretary of Veterans Affairs to stay proceedings in Karnas v. Derwinski, U.S.Vet.App. No. 90-312, is denied as moot. It is further

ORDERED, sua sponte, that, pursuant to Rule 34, oral argument before the Court en banc is set for Wednesday, January 15, 1992, at 9:30 a.m. in the Courtroom at Suite 900, 625 Indiana Avenue, NW, Washington, DC 20004. Counsel for each appellant is allotted 30 minutes for presentation of argument, and counsel for the Secretary is allotted a total of one hour for the consolidated cases.