# Smith v. Principi Aggregated by Superinsight from public-domain sources, as of 2026-09-08. Domain: va/cavc. --- ## Smith v. Principi, 16 Vet. App. 261 (2002) {#816807} *16 Vet. App. 261* Official source: _Smith v. Principi, 16 Vet. App. 261, decided 2002-08-23._ ORDER PER CURIAM. In a panel opinion dated April 16, 2002, the Court denied the appellant’s application for fees and expenses pursuant to Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), finding that the position of the Secretary was substantially justified. Smith v. Principi, 16 Vet.App. 71 (2002). On May 7, 2002, the appellant filed a motion for reconsideration and an alternative motion for a full Court decision. On consideration of the foregoing and the record on appeal, it is ORDERED by the panel that the appellant’s motion for reconsideration is denied. It is further ORDERED by the en banc Court that the appellant’s motion for a full Court decision is denied. --- STEINBERG, Judge, dissenting: I voted to grant the appellant’s motion for a full-Court decision as to this application for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), because I believe that the opinion of the panel here, Smith (Shannon) v. Principi, 16 Vet.App. 71 (2002), is inconsistent with this Court’s opinion in Cycholl v. Principi, 15 Vet.App. 355, 859-361 (2001), as well as with other well-established EAJA precedent in this Court’s caselaw on the substantial-justification question.1 I also believe that the opinion is ill advised for the reasons set forth in Chief Judge Kramer’s dissenting opinion. Smith (Shannon), 16 Vet.App. at 77 (Kramer, C.J., dissenting). A. Board Decision and the VCAA The February 6, 2001, decision of the Board of Veterans’ Appeals (Board or BVA) on appeal in this case made reference to the Veterans Claims Assistance Act of 2000 (VCAA)2 in only the following five sentences: . On November 9, 2000, the President signed into law the [VCAA], Among other things, this law eliminates the concept of a well-grounded claim [and] redefines the obligations of the VA with respect to the duty to assist. The [regional office] has not had the opportunity to review the veteran’s claim in conjunction with the new legislation. However, the Board finds that all pertinent records are on file and the veteran has been informed of the requirements for an earlier effective date. Accordingly, the Board finds that the veteran has not been prejudiced by this decision. Bernard v. Brown, 4 Vet.App. 384 (1993). Smith (Shannon), 16 Vet.App. at 76 (quoting BVA decision). The VCAA eliminated the well-grounded-claim requirement in former section 5107 of title 38, U.S.Code, and, inter alia, amended 38 U.S.C. § 5103 (“Notice to claimants of required information and evidence”) and added 38 U.S.C. § 5103A (“Duty to assist claimants”). Specifically, section 5103(a) contains two discrete notification' requirements in two separate sentences. The first sentence provides: *263Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant’s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. 38 U.S.C. § 5103(a). The second sentence then provides: As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. Ibid. These separate requirements are not fungible. They are just as distinct from each other as though they were provisions in separate subsections or paragraphs. The Board’s consideration and discussion of the first sentence does not satisfy its obligation to consider and discuss the second sentence, any more than would discussion of pre-VCAA 38 U.S.C. § 5107(a) (regarding the well-grounded-claim threshold and VA’s duty to assist) have provided an adequate discussion of subsection (b) of that section (regarding the benefit of the doubt). B. Holdings in Cycholl and Prior EAJA Caselaw In Cycholl, supra, the Court expressly rejected the Secretary’s assertion that the Board was substantially justified in not discussing the potential applicability of the VCAA, including the section 5103(a) notice requirements, in a BVA decision issued after the VCAA’s enactment. Cycholl, 15 Vet.App. at 358-359. The Court specifically discussed the Secretary’s argument that the Board’s misfeasance was substantially justified “because ‘[t]he basis for the remand ... involved the Court’s recent decision in Holliday v. Principi’ ”.3 Id. at 360. The Court concluded in Cycholl that, for four reasons, the Board could not have been substantially justified in its failure to discuss the VCAA’s new chapter 51 adjudication requirements and provisions: (1) At the time of the Board’s November 29, 2000, decision in Cycholl, the Court’s case-law was very well established that, under Karnas v. Derwinski,4 a remand was required for the Board to consider the application of a newly enacted law that was potentially applicable (on the latter score, see point (3), below); (2) section 7104(a) of title 38, U.S.Code, requires the Board to consider, and section 7104(d)(1) requires the Board to discuss,5 “all ... potentially *264applicable provisions of law and regulation”, Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see also Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order); (3) under ZP v. Brown and Elcyzyn v. Brown,6 the Board cannot be substantially justified for EAJA purposes when it fails to comply with applicable Court opinions such as Karnas, supra; and (4) the Board, at the time of its February 6, 2001, decision in Cycholl, was bound by precedent opinions of the Department of Veterans Affairs (VA) General Counsel (GC)7, and two days before the BVA decision there the GC had issued VA Gen. Coun. Prec. 11-00 (Nov. 27, 2000) [hereinafter G.C. Prec. 11-00] holding that “all of the [VCAA]’s provisions apply to claims filed on or after November 9, 2000, as well as to claims filed before then but not finally decided as of that date.” Cycholl, 15 Vet.App. at 360 (quoting G.C. Prec. 11-00). A closer examination of these conclusions from Cycholl demonstrates why the Board in the instant case lacked substantial justification: [T]he VA General Counsel issued a precedent opinion that concluded “that all of the [VCAA]’s provisions apply to claims filed on or after November 9, 2000, as well as to claims filed before then but not finally decided as of that date.” [G.C. Prec. 11-00]. Under section 7104(c) of title 38, the Board is bound by, inter alia, “the precedent opinions of the chief legal officer of the Department.” See 38 U.S.C. § 311 (General Counsel is VA’s “chief legal officer”); Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam order) (citing section 7104(c) for proposition that “Board is bound by VA General Counsel precedential opinions”). Because the November 29, 2000, Board decision in this case failed to discuss the applicability of the VCAA to this claim, and because the Board was bound by G.C. Prec. 11-00, which concluded that the VCAA was applicable to such claims, the Board failed to abide by section 7104(c). Furthermore, the Board’s failure to follow section 7104(c) and G.C. Prec. 11-00 constituted a failure to “consider[ ] ... [all] applicable provisions of law”, as required by 38 U.S.C. § 7104(a), and also rendered inadequate the Board’s statement of reasons or bases. See ZP, supra (Court awarded EAJA fees and expenses upon finding Secretary’s position at administrative stage not substantially justified where Court on merits had vacated BVA decision on appeal based on Board’s failure to provide adequate statement of reasons or bases pursuant to 38 U.S.C. § 7104(d)(1) for the Board’s denial of rating-increase claim, and Court cited, inter alia, Gilbert [v. Derwinski, 1 Vet.App. 49, 57 (1990),] which had been decided over nine *265months before Board decision vacated by the Court); see also Eleyzyn, supra (to same effect). Cyeholl, 15 Vet-App. at 360. Here, in contrast, the panel opinion appears to be setting up a scenario in which, as long as the Board merely mentions the VCAA, the Board’s failure, in violation of both sections 7104(a) and 7104(d)(1), to consider and discuss at all a particular VCAA provision, such as the second section 5103(a) notice requirement, will be considered substantially justified for EAJA purposes. Such a suggestion constitutes a major departure from the Court’s EAJA caselaw, as embodied, for example, in Cyeholl, ZP, and El-eyzyn, all supra. C. Deficiencies in Panel Opinion Notwithstanding the above caselaw, the divided panel opinion in the instant case excuses the Secretary’s failure to comply with three distinct statutory requirements, 38 U.S.C. § 7104(a) (Board required to consider all applicable provision of law and regulation), 38 U.S.C. § 7104(d)(1) (Board required to discuss all such applicable provisions in the reasons or bases for its decision and do so adequately)8, and 38 U.S.C. § 7104(c) (Board bound by precedent opinions of VA’s GC). The majority’s stated rationale for excusing this conceded noncompliance is that “the law as it existed at the time of the Board’s February 6, 2001, decision [in the instant case] was unclear about the scope and extent of the application of the VCAA”; “[i]t was not until this Court’s decision in Holliday [, supra,] on February 22, 2001, that the uncertainty surrounding the issue of which claims the VCAA would apply to was, by and large, removed”; and “[t]o require the Board to have known to discuss at more length all provisions of the VCAA in deciding the appellant’s relatively simple claim would in effect require the Board to be prescient ... as to what this Court would [later] hold [in Holliday, supra]”. Id. at 76. All three of these rationales are invalid. The question is not what the VCAA notice requirements meant at that time but whether all the VCAA’s provisions were considered and discussed in the Board’s decision, as was then required by applicable law and precedent. See, e.g., Weaver, supra. The Holliday opinion held only that that case and similar cases needed to be remanded so that the BVA could consider the VCAA’s applicability in the first instance, a holding very much in line with G.C. Prec. 11-00, which predated the Board decision at issue. The majority’s opinion states correctly the following standard for measuring the reasonableness (the primary criterion for determining whether the Secretary’s position at the administrative stage is substantially justified for EAJA purposes9) of thé BVA’s actions: In determining reasonableness, the Court’s focus must be upon the law in effect at the time the government adopted its position in the case for as the [U.S.] Supreme Court stated, our concern is “not what the law now is, but what the government was substantially justified in believing it to have been.” *266Id. at 77 (citations omitted). Against this standard, the Board was totally unjustified in failing to discuss both of the notice requirements in the VCAA-amended section 5103(a) including, of course, the notice requirements in the second sentence.10 Regarding the applicability of the VCAA, the law binding on the BVA at the time of its February 6, 2001, decision in this case was the GC precedent opinion issued more than two months earlier than the BVA decision and holding that all provisions of the VCAA, including both new section 5103(a) notice requirements, were applicable to cases pending on the date of the VCAA’s enactment. No decision of this Court was necessary in order for the Board to be required to follow that GC opinion; the face of the statute itself required that the Board follow that GC precedent opinion, 38 U.S.C. § 7104(c). Indeed, the Board’s obligation in this respect is made totally clear by the following statement made by the Secretary very recently in a pleading filed in response to a Court order in another case, Mattock v. Principi, 16 Vet.App. 188 (2002), under 28 U.S.C. § 2412(d)(1)(A), (B>, regarding the binding nature of this GC opinion: [G.C. Prec.] 11-200 ... has been binding on VA, including the [regional offices] and the Board, since that time [its issuance ‘on November 27, 2000’] .... and was also in effect [on March 29, 2001,] and bound the Board as it rendered [on that date] the decision ... on appeal .... All sections of the VCAA were applicable to [the appellant’s] claims. Secretary’s July 23, 2002, Response (in Matlock, supra) at 5, 6. In the instant case, however, the Board’s discussion of the VCAA extended only to the amendments regarding well-grounded claims and VA’s duty to assist. The discussion ignored completely the second sentence in section 5103(a)’s notice requirements regarding the duty of the Secretary to inform the claimant about which information and evidence the Secretary would “attempt to obtain” and which was “to be provided by the claimant”, 38 U.S.C. § 5103(a).11 See Quartuccio v. Principi, *26716 Vet.App. 183, 187 (2002). The Court has held heretofore that such an omission has rendered the Secretary’s position lacking in substantial justification, see Cycholl, ZP, and Elcyzyn, all supra, and should have done so here. D. Conclusion For the above reasons, the Court should consider the case en banc, and I respectfully dissent from the denial of the appellant’s motion for such consideration. . U.S. Vet.App. R. 35(c) (''[o]rdinarily [motions for full-Court decision] will not be granted unless such action is necessary to secure or maintain uniformity of the Court's decisions”); see also Internal Operating Procedures V. (a)(3), 10 Vet.App. CDXXVI (1997). . Pub.L. No. 106-475, 114 Stat.2096 (Nov. 9, 2000). . Holliday v. Principi, 14 Vet.App. 280, 286 (2001), mot. for recons, denied, 14 Vet.App. 327 (per curiam order), mot. for full Court review denied, 15 Vet.App. 21 (2001) (en banc order). . In Karnas v. Derwinski, the Court held that “where the law or regulation changes after a claim has been filed or reopened but before the administrative ... appeal process has been concluded, the version mo[re] favorable to [the] appellant should ... apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so”. Karnas, 1 Vet.App. 308, 313 (1991). .Specifically, section 7104(a) provides in pertinent part: “Decisions of the Board [of Veterans Appeals (Board)] shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.” 38 U.S.C. § 7104(a). Section 7104(d)(1) provides that each Board decision “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”. 38 U.S.C. § 7104(d)(1); see e.g., Allday v. Brown, 7 Vet.App. 517, 527 (1995) (holding that section 7104(d)(1) requires that statement of reasons *264or bases "must be adequate to enable a claimant to understand the precise basis for the Board decision, as well as to facilitate review in this Court”). . ZP v. Brown, 8 Vet.App. 303, 304 (1995) (per curiam order) (citing Elcyzyn, infra, and holding that Secretary's position was not substantially justified in failing "to provide an adequate statement of reasons or bases in its denial of the appellant’s ... claim ... long after the Court had clearly articulated the parameters of the reasons or bases requirement in Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990)”); Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1994) (holding that Secretary’s position was not substantially justified in failing to follow "relevant statutory provisions as interpreted by precedential decisions of the Court”, namely Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and Gilbert, supra). . See 38 U.S.C. § 7104(c); Cycholl v. Principi, 15 Vet.App. 355, 360 (2001) (citing Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam opinion)); see also 38 C.F.R. § 20.901(c) (2001). . See supra note 5. . In Stillwell v. Brown, this Court articulated the following test for determining substantial justification under 28 U.S.C. § 2412(d)(1)(A), (B): VA must demonstrate the reasonableness, in law and fact, of ... the action or failure to act by ... VA in matters before ... VA, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such ... action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. Stillwell, 6 Vet.App. 291, 302 (1994). '. The Court recently issued an opinion hold- ■ ing that the Board's failure to comply with the notice requirement in the second section 5103(a) sentence, although there was compliance with the first sentence (through "two documents the Secretary sent to the appellant noting which evidence would be useful to support the appellant’s attempt to reopen his claim”), was remandable error. Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002) (vacating BVA decision and remanding where Secretary failed to comply with notice requirements of section 5103(a), as amended by VCAA, and 38 C.F.R. § 3.159(b), as amended by 66 Fed.Reg. 45,620, 45,630 (Aug. 29, 2001), and where BVA failed to enforce compliance with these new requirements). . Chief Judge Kramer’s dissenting opinion persuasively concluded as to compliance with the first section 5013(a) requirement: Specifically, the Board's finding of fact that "the veteran has been informed of the requirements for an earlier effective date” {Shannon D. Smith, BVA 99-01319, at 11 (Feb. 6, 2001)) is not supported by any evidence set forth in the BVA decision regarding any notice provided to the appellant. Indeed, the Board made no express statement of supporting evidence in conjunction with its finding, and the decision contains no implicit evidentiary support, which a discussion of relevant evidence in the factual background section may have provided. As the Secretary conceded in the joint motion for remand, the Board's "discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice ... [.]” (Motion at 3). Accordingly, because the Board failed to provide an adequate statement of reasons or bases and because our case law as to the reasons-or-bases requirement was clear at the time of the BVA decision, see 38 U.S.C. § 7104(d)(1); Allday [, supra}; Gilbert [, 1 Vet.App. at 57], in my view, the Secretary's *267position at the administrative stage, that "the veteran ha[d] been informed of the requirements for an earlier effective date” (Smith, BVA 99-01319, supra), was not substantially justified. See ZP v. Brown, 8 Vet.App. 303, 304 (1995) (per curiam order). I would therefore hold that an award of attorneys fees is warranted in this case. Smith (Shannon), 16 Vet.App. 71, 77 (2002) (Kramer, C.J., dissenting) --- UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 01-547 SHANNON D. SMITH , APPELLANT , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY, IVERS, STEINBERG, and GREENE, Judges. ORDER In a panel opinion dated April 16, 2002, the Court denied the appellant's application for fees and expenses pursuant to Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), finding that the position of the Secretary was substantially justified. Smith v. Principi, 16 Vet.App. 71 (2002). On May 7, 2002, the appellant filed a motion for reconsideration and an alternative motion for a full Court decision. On consideration of the foregoing and the record on appeal, it is ORDERED by the panel that the appellant's motion for reconsideration is denied. It is further ORDERED by the en banc Court that the appellant's motion for a full Court decision is denied. DATED: 23 August, 2002 PER CURIAM. STEINBERG, Judge, dissenting: I voted to grant the appellant's motion for a full-Court decision as to this application for attorney fees and expenses under the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) (EAJA), because I believe that the opinion of the panel here, Smith (Shannon) v. Principi, 16 Vet.App. 71 (2002), is inconsistent with this Court's opinion in Cycholl v. Principi, 15 Vet.App. 355, 359-361 (2001), as well as with other well-established EAJA precedent in this Court's caselaw on the substantial-justification question.1 I also believe that the opinion is ill advised 1 U.S. V ET . A PP . R. 35( C ) ("[o]rdinarily [motions for full-Court decision] will not be granted unless such action is necessary to secure or maintain uniformity of the Court's decisions"); see also I N TERN AL O PERATING P RO CED U RES V. (a)(3), 10 Vet.App. CDXXVI (1997). for the reasons set forth in Chief Judge Kramer's dissenting opinion. Smith (Shannon), 16 Vet.App. at 77 (Kramer, C.J., dissenting). A. Board Decision and the VCAA The February 6, 2001, decision of the Board of Veterans' Appeals (Board or BVA) on appeal in this case made reference to the Veterans Claims Assistance Act of 2000 (VCAA)2 in only the following five sentences: On November 9, 2000, the President signed into law the [VCAA]. Among other things, this law eliminates the concept of a well- grounded claim [and] redefines the obligations of the VA with respect to the duty to assist. The [regional office] has not had the opportunity to review the veteran's claim in conjunction with the new legislation. However, the Board finds that all pertinent records are on file and the veteran has been informed of the requirements for an earlier effective date. Accordingly, the Board finds that the veteran has not been prejudiced by this decision. Bernard v. Brown, 4 Vet.App. 384 (1993). Smith (Shannon), 16 Vet.App. at 76 (quoting BVA decision). The VCAA eliminated the well- grounded-claim requirement in former section 5107 of title 38, U.S. Code, and, inter alia, amended 38 U.S.C. § 5103 ("Notice to claimants of required information and evidence") and added 38 U.S.C. § 5103A ("Duty to assist claimants"). Specifically, section 5103(a) contains two discrete notification requirements in two separate sentences. The first sentence provides: Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. 38 U.S.C. § 5103(a). The second sentence then provides: As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant. 2 Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). 2 Ibid. These separate requirements are not fungible. They are just as distinct from each other as though they were provisions in separate subsections or paragraphs. The Board's consideration and discussion of the first sentence does not satisfy its obligation to consider and discuss the second sentence, any more than would discussion of pre-VCAA 38 U.S.C. § 5107(a) (regarding the well- grounded-claim threshold and VA's duty to assist) have provided an adequate discussion of subsection (b) of that section (regarding the benefit of the doubt). B. Holdings in Cycholl and Prior EAJA Caselaw In Cycholl, supra, the Court expressly rejected the Secretary's assertion that the Board was substantially justified in not discussing the potential applicability of the VCAA, including the section 5103(a) notice requirements, in a BVA decision issued after the VCAA's enactment. Cycholl, 15 Vet.App. at 358-359. The Court specifically discussed the Secretary's argument that the Board's misfeasance was substantially justified "because '[t]he basis for the remand . . . involved the Court's recent decision in Holliday v. Principi"'.3 Id. at 360. The Court concluded in Cycholl that, for four reasons, the Board could not have been substantially justified in its failure to discuss the VCAA's new chapter 51 adjudication requirements and provisions: (1) At the time of the Board's November 29, 2000, decision in Cycholl, the Court's caselaw was very well established that, under Karnas v. Derwinski,4 a remand was required for the Board to consider the application of a newly enacted law that was potentially applicable (on the latter score, see point (3), below); (2) section 7104(a) of title 38, U.S. Code, requires the Board to consider, and section 7104(d)(1) requires the Board to discuss,5 "all . . . potentially applicable provisions of law and regulation", Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see also Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order); (3) under ZP v. Brown and Elcyzyn v. Brown,6 the Board cannot be substantially 3 Holliday v. Principi, 14 Vet.App. 280, 286 (2001), mot. for recons. denied, 14 Vet.App. 237 (per curiam order), mot. for full Court review denied, 15 Vet.App. 21 (2001) (en banc order). 4 In Karnas v. Derwinski, the Court held that "where the law or regulation changes after a claim has been filed or reopened but before the administrative . . . appeal process has been concluded, the version mo[re] favorable to [the] appellant should . . . apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so". Karnas, 1 Vet.App. 308, 313 (1991). 5 Specifically, section 7104(a) provides in pertinent part: "Decisions of the Board [of Veterans Appeals (Board)] shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation." 38 U.S.C. § 7104(a). Section 7104(d)(1) provides that each Board decision "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". 38 U.S.C. § 7104(d)(1); see e.g., Allday v. Brown, 7 Vet.App 517, 527 (1995) (holding that section 7104(d)(1) requires that statement of reasons or bases "must be adequate to enable a claimant to understand the precise basis for the Board decision, as well as to facilitate review in this Court"). 6 ZP v. Brown, 8 Vet.App. 303, 304 (1994) (per curiam order) (citing Elcyzyn, infra, and holding that Secretary's position was not substantially justified in failing "to provide an adequate statement of reasons or bases in its denial of the appellant's . . . claim . . . long after the Court had clearly articulated the parameters of the reasons or bases requirement in Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990)"); Elcyzyn v. Brown, 7 Vet.App. 170, 176 (1994) 3 justified for EAJA purposes when it fails to comply with applicable Court opinions such as Karnas, supra; and (4) the Board, at the time of its February 6, 2001, decision in Cycholl, was bound by precedent opinions of the Department of Veterans Affairs (VA) General Counsel (GC)7, and two days before the BVA decision there the GC had issued VA Gen. Coun. Prec. 11-00 (Nov. 27, 2000) [hereinafter G.C. Prec. 11-00] holding that "all of the [VCAA]'s provisions apply to claims filed on or after "November 9, 2000, as well as to claims filed before then but not finally decided as of that date." Cycholl, 15 Vet.App. at 360 (quoting G.C. Prec. 11-00). A closer examination of these conclusions from Cycholl demonstrates why the Board in the instant case lacked substantial justification: [T]he VA General Counsel issued a precedent opinion that concluded "that all of the [VCAA]'s provisions apply to claims filed on or after November 9, 2000, as well as to claims filed before then but not finally decided as of that date." [G.C. Prec. 11-00]. Under section 7104(c) of title 38, the Board is bound by, inter alia, "the precedent opinions of the chief legal officer of the Department." See 38 U.S.C. § 311 (General Counsel is VA's "chief legal officer"); Herlehy v. Principi, 15 Vet. App. 33, 34 (2001) (per curiam order) (citing section 7104(c) for proposition that "Board is bound by VA General Counsel precedential opinions"). Because the November 29, 2000, Board decision in this case failed to discuss the applicability of the VCAA to this claim, and because the Board was bound by G.C. Prec. 11-00, which concluded that the VCAA was applicable to such claims, the Board failed to abide by section 7104(c). Furthermore, the Board's failure to follow section 7104(c) and G.C. Prec. 11-00 constituted a failure to "consider[] . . . [all] applicable provisions of law", as required by 38 U.S.C. § 7104(a), and also rendered inadequate the Board's statement of reasons or bases. See ZP, supra (Court awarded EAJA fees and expenses upon finding Secretary's position at administrative stage not substantially justified where Court on merits had vacated BVA decision on appeal based on Board's failure to provide adequate statement of reasons or bases pursuant to 38 U.S.C. § 7104(d)(1) for the Board's denial of rating-increase claim, and Court cited, inter alia, Gilbert[ v. Derwinski, 1 Vet.App. 49, 57 (1990),] which had been decided over nine months before Board (holding that Secretary's position was not substantially justified in failing to follow "relevant statutory provisions as interpreted by precedential decisions of the Court", namely Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), and Gilbert, supra). 7 See 38 U.S.C. § 7104(c); Cycholl v. Principi, 15 Vet.App. 355, 360 (2001) (citing Herlehy v. Principi, 15 Vet.App. 33, 34 (2001) (per curiam opinion)); see also 38 C.F.R. § 20.901(c) (2001). 4 decision vacated by the Court); see also Elcyzyn, supra (to same effect). Cycholl, 15 Vet.App. at 360. Here, in contrast, the panel opinion appears to be setting up a scenario in which, as long as the Board merely mentions the VCAA, the Board's failure, in violation of both sections 7104(a) and 7104(d)(1), to consider and discuss at all a particular VCAA provision, such as the second section 5103(a) notice requirement, will be considered substantially justified for EAJA purposes. Such a suggestion constitutes a major departure from the Court's EAJA caselaw, as embodied, for example, in Cycholl, ZP, and Elcyzyn, all supra. C. Deficiencies in Panel Opinion Notwithstanding the above caselaw, the divided panel opinion in the instant case excuses the Secretary's failure to comply with three distinct statutory requirements, 38 U.S.C. § 7104(a) (Board required to consider all applicable provision of law and regulation), 38 U.S.C. § 7104(d)(1) (Board required to discuss all such applicable provisions in the reasons or bases for its decision and do so adequately)8, and 38 U.S.C. § 7104(c) (Board bound by precedent opinions of VA's GC). The majority's stated rationale for excusing this conceded noncompliance is that "the law as it existed at the time of the Board's February 6, 2001, decision [in the instant case] was unclear about the scope and extent of the application of the VCAA"; "[i]t was not until this Court's decision in Holliday [, supra,] on February 22, 2001, that the uncertainty surrounding the issue of which claims the VCAA would apply to was, by and large, removed"; and "[t]o require the Board to have known to discuss at more length all provisions of the VCAA in deciding the appellant's relatively simple claim would in effect require the Board to be prescient . . . as to what this Court would [later] hold [in Holliday, supra]". Id. at 76. All three of these rationales are invalid. The question is not what the VCAA notice requirements meant at that time but whether all the VCAA's provisions were considered and discussed in the Board's decision, as was then required by applicable law and precedent. See, e.g., Weaver, supra. The Holliday opinion held only that that case and similar cases needed to be remanded so that the BVA could consider the VCAA's applicability in the first instance, a holding very much in line with G.C. Prec. 11-00, which predated the Board decision at issue. The majority's opinion states correctly the following standard for measuring the reasonableness (the primary criterion for determining whether the Secretary's position at the administrative stage is substantially justified for EAJA purposes9) of the BVA's actions: 8 See supra note 5. 9 In Stillwell v. Brown, this Court articulated the following test for determining substantial justification under 28 U.S.C. § 2412(d)(1)(A), (B): VA must demonstrate the reasonableness, in law and fact, of . . . the action or failure to act by . . . VA in matters before . . . VA, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such . . . action or failure to act, as reflected in the record on appeal and the filings of the parties before the Court. 5 In determining reasonableness, the Court's focus must be upon the law in effect at the time the government adopted its position in the case for as the [U.S.] Supreme Court stated, our concern is "not what the law now is, but what the government was substantially justified in believing it to have been." Id. at 77 (citations omitted). Against this standard, the Board was totally unjustified in failing to discuss both of the notice requirements in the VCAA-amended section 5103(a) including, of course, the notice requirements in the second sentence.10 Regarding the applicability of the VCAA, the law binding on the BVA at the time of its February 6, 2001, decision in this case was the GC precedent opinion issued more than two months earlier than the BVA decision and holding that all provisions of the VCAA, including both new section 5103(a) notice requirements, were applicable to cases pending on the date of the VCAA's enactment. No decision of this Court was necessary in order for the Board to be required to follow that GC opinion; the face of the statute itself required that the Board follow that GC precedent opinion, 38 U.S.C. § 7104(c). Indeed, the Board's obligation in this respect is made totally clear by the following statement made by the Secretary very recently in a pleading filed in response to a Court order in another case, Matlock v. Principi, 16 Vet.App. 188 (2002), under 28 U.S.C. § 2412(d)(1)(A), (B), regarding the binding nature of this GC opinion: [G.C. Prec.] 11-200 . . . has been binding on VA, including the [regional offices] and the Board, since that time [its issuance 'on November 27, 2000'] . . . . and was also in effect [on March 29, 2001,] and bound the Board as it rendered [on that date] the decision . . . on appeal . . . . All sections of the VCAA were applicable to [the appellant's] claims. Secretary's July 23, 2002, Response (in Matlock, supra) at 5,6. In the instant case, however, the Board's discussion of the VCAA extended only to the amendments regarding well-grounded claims and VA's duty to assist. The discussion ignored completely the second sentence in section 5103(a)'s notice requirements regarding the duty of the Secretary to inform the claimant about which information and evidence the Secretary would "attempt Stillwell, 6 Vet.App. 291, 302 (1994). 10 The Court recently issued an opinion holding that the Board's failure to comply with the notice requirement in the second section 5103(a) sentence, although there was compliance with the first sentence (through "two documents the Secretary sent to the appellant noting which evidence would be useful to support the appellant's attempt to reopen his claim"), was remandable error. Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002) (vacating BVA decision and remanding where Secretary failed to comply with notice requirements of section 5103(a), as amended by VCAA, and 38 C.F.R. § 3.159(b), as amended by 66 Fed.Reg. 45,620, 45,630 (Aug. 29, 2001), and where BVA failed to enforce compliance with these new requirements). 6 to obtain" and which was "to be provided by the claimant", 38 U.S.C. § 5103(a).11 See Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). The Court has held heretofore that such an omission has rendered the Secretary's position lacking in substantial justification, see Cycholl, ZP, and Elcyzyn, all supra, and should have done so here. D. Conclusion For the above reasons, the Court should consider the case en banc, and I respectfully dissent from the denial of the appellant's motion for such consideration. 11 Chief Judge Kramer's dissenting opinion persuasively concluded as to compliance with the first section 5013(a) requirement: Specifically, the Board's finding of fact that "the veteran has been informed of the requirements for an earlier effective date" (Shannon D. Smith, BVA 99-01319, at 11 (Feb. 6, 2001)) is not supported by any evidence set forth in the BVA decision regarding any notice provided to the appellant. Indeed, the Board made no express statement of supporting evidence in conjunction with its finding, and the decision contains no implicit evidentiary support, which a discussion of relevant evidence in the factual background section may have provided. As the Secretary conceded in the joint motion for remand, the Board's "discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice . . . [.]" (Motion at 3). Accordingly, because the Board failed to provide an adequate statement of reasons or bases and because our case law as to the reasons-or-bases requirement was clear at the time of the BVA decision, see 38 U.S.C. § 7104(d)(1); Allday[, supra]; Gilbert[, 1 Vet.App. at 57], in my view, the Secretary's position at the administrative stage, that "the veteran ha[d] been informed of the requirements for an earlier effective date" (Smith, BVA 99-01319, supra), was not substantially justified. See ZP v. Brown, 8 Vet.App. 303, 304 (1995) (per curiam order). I would therefore hold that an award of attorneys fees is warranted in this case. Smith (Shannon), 16 Vet.App. 71, 77 (2001) (Kramer, C.J., dissenting) 7 --- ## Smith v. Principi, 16 Vet. App. 71 (2002) {#816851} *16 Vet. App. 71* Official source: _Smith v. Principi, 16 Vet. App. 71, decided 2002-04-16._ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 01-547 SHANNON D. SMITH , APPELLANT , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appeal from the Board of Veterans' Appeals (Decided April 16, 2002 ) Virginia Y. Middleton, of Fayetteville, Arizona, was on the brief for the appellant. Tim S. McClain, General Counsel; R. Randall Campbell, Acting Assistant General Counsel; Joan E. Moriarty, Deputy Assistant General Counsel; and Linda L. Keyser, all of Washington, D.C., were on the brief for the appellee. Before KRAMER, Chief Judge, and FARLEY and HOLDAWAY, Judges. HOLDAWAY, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed an opinion concurring in part and dissenting in part. HOLDAWAY, Judge: Before the Court is the appellant's application, filed through counsel, for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA). See 28 U.S.C. § 2412. For the following reasons, the Court will deny the application. The appellant's EAJA application followed an order of the Court, issued by the Clerk of the Court, that vacated a February 6, 2001, Board of Veterans' Appeals (Board or BVA) decision, and remanded the appellant's claim for readjudication in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000). After the order was issued, the parties filed a joint motion for remand, stating that although the Board's decision addressed the VCAA, "the discussion [wa]s not thorough enough to indicate with certainty that the provisions of the VCAA ha[d] been met, specifically with respect to notice and the Secretary's duty to assist," as clarified in this Court's subsequent decision in Holliday v. Principi, 14 Vet.App. 280 (2001) (holding that all provisions of the VCAA are potentially applicable to claims pending on the date of enactment). Joint Motion (Mot.) at 3. "The Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F)." Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). In order to be eligible for an EAJA award, the applicant must file the EAJA application within the 30-day period set forth in 28 U.S.C. § 2412(d)(1)(B), and the application must contain (1) a showing that the applicant is a prevailing party within the meaning of EAJA; (2) an assertion that the applicant's net worth does not exceed $2 million; (3) an allegation that the position of the Secretary at the administrative level or in litigation was not substantially justified; and (4) an itemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d); see also Thayer v. Principi, 15 Vet.App. 204 (2001); Cullens, supra; Bazalo v. Brown, 9 Vet.App. 304, 308 (1996) (en banc) (holding that "statement that [the appellant] is a prevailing party satisfies eligibility requirement for jurisdiction purposes"), rev'd on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998). The appellant's EAJA application was filed within the 30-day EAJA application period set forth in the statute; she has stated that her net worth does not exceed $2 million; she has provided an itemized statement of the fees sought supported by an affidavit from counsel; and she has alleged that the Secretary's position at the administrative stage was not justified. Because she has made no argument that the government's position during the litigation stage was not justified, the Court will not review that matter. See Bucklinger v. Brown, 5 Vet.App. 435 (1993) (holding that arguments not made on appeal are deemed abandoned). In determining the appellant's eligibility to receive EAJA fees, the Court must find both that the appellant is a prevailing party under EAJA and that the government's position at the administrative or litigation stage was unjustified. See Stillwell v. Brown, 6 Vet.App. 291 (1994). Whether the appellant is a prevailing party is a threshold question in obtaining an EAJA award. "[I]f the benefit sought in bringing the litigation is not awarded, only a remand predicated upon administrative error confers EAJA prevailing party status on an appellant." Sachs v. Principi, 15 Vet.App. 414 (2002) (citing Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc)). Here, the appellant did not obtain the relief sought in bringing the litigation. Instead, she obtained a remand 2 for readjudication. Therefore, the focus of our inquiry must turn to whether the remand obtained in this case was predicated upon administrative error. In this case, the Court concludes that it was. The joint motion for remand states: While the Board did refer to the VCAA in its decision, the discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice and the Secretary's duty to assist. (See BVA [decision] at 11). On remand the BVA must reevaluate Appellant's claim considering the provisions of the VCAA and provide an adequate statement of reasons or bases as to whether all of the provisions of the VCAA have been met considering the facts of this case. Joint Mot. at 3; see also 38 U.S.C. § 7104 (D)(1); Allday v. Brown, 7 Vet.App. 517; 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In so stating, the Secretary confessed error at the administrative level. In Cycholl v. Principi, the Court held that "under this Court's binding precedent, . . . [a] remand . . . predicated on adjudicative error by the BVA, affords the appellant prevailing-party status." 15 Vet.App. 355, 359 (2001). Therefore, because the Secretary confessed error at the administrative level, and the remand was predicated upon that error, the Court holds that the appellant is a prevailing party for the purposes of EAJA. Because attaining prevailing party status is only one threshold requirement for attaining EAJA eligibility, prevailing party status alone does not confer entitlement to an EAJA award. Although often confused, the issues of prevailing party and substantial justification are separate and distinct. The Court may conclude that the Board erred in making a decision, thus making the appellant a prevailing party, but still deny the application because the Secretary was substantially justified. Therefore, since the appellant is a prevailing party, the Court will examine the issue of substantial justification. Once an EAJA applicant alleges that the Secretary's position was not substantially justified, the burden shifts to the Secretary to show that the government's position was substantially justified in order to avoid paying EAJA fees. See Locher v. Brown, 9 Vet.App. 535, 537 (1996). The Secretary's position is substantially justified "if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact." Stillwell, 6 Vet.App. at 302 (quoting Pierce v. Underwood, 487 U.S. 552, 556 n.2 (1988)). In demonstrating that its position was substantially justified, VA must establish the reasonableness of its position, which is based upon the "totality of the 3 circumstances." Id. (citing Essex Electro Engineers, Inc. v. United States, 757 F.2d 247, 252 (Fed. Cir. 1985)). If the actions were reasonable, then the actions were substantially justified. See Stillwell, supra. The purpose of EAJA is not to punish the government for decisions later determined incorrect, but rather to afford appellants an avenue through which to address government abuse (i.e., action taken in the face of known law that is contrary to the Secretary's position). EAJA "'was never intended to chill the government's right to litigate . . . reasonably substantiated positions, whether or not the position later turns out to be wrong.'" Carpenter v. West, 12 Vet.App. 316, 321 (1999) (quoting Stillwell, 6 Vet.App. at 303). In defining the scope of what is considered reasonable, the Court in Stillwell noted that: The Federal Circuit in Essex set forth the following guidelines: (1) reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness "turns on what support in law and fact the government offered in defending its case, and . . . the merits of the agency decision constitute only one factor in evaluating the justification for the government's litigating position in court," Essex, 757 F.2d at 253 (citation omitted); (3) whether the government "drag[ged] its feet," or "cooperated in speedily resolving the litigation," id.; and (4) whether the government "departed from established policy in such a way as to single out a particular private party," id. at 254 (citation omitted). 6 Vet.App. at 302 (emphasis supplied). In determining whether the Secretary has carried his burden of proof of demonstrating that his position, at the administrative stage, was reasonable, "[t]he Court looks to the 'relevant, determinative circumstances'" present. Stephens v. West, 12 Vet.App. 115, 118 (1999) (citations omitted). The Board's decision must be weighed against the caselaw that prevailed when the government adopted its position. Bowey v. West, 218 F.3d 1373, 1377 (Fed. Cir. 2000). At the time of the Board's February 6, 2001, decision, the Court had not yet addressed the full scope and effect of the VCAA. Although the elimination of the well-grounded-claim requirement was obvious, clear, and unambiguous from the plain language of the legislation, in hindsight, little else was. Indeed, this Court struggled for some time to come to grips with the full extent of what this sweeping legislation did and did not intend. Evidencing this are the cases decided by the Court in the weeks following the enactment of the VCAA. For example, Turner v. Gober, 14 Vet.App. 224 (2000), issued on December 19, 2000, and Ozer v. Principi, 14 Vet.App. 257 (2001), issued on February 6, 2001, failed to mention the existence of the VCAA, and although Smith (Claudus) v. Gober, 14 Vet.App. 227, 231 (2000), issued on December 22, 2000, addressed the VCAA, it found 4 "no reason to consider . . . [it] in deciding [the] case." Similarly, although Woods v. Gober, 14 Vet.App. 214 (2000), issued on December 15, 2000, acknowledged the existence of the VCAA, it failed to address fully the new legislation's effect, if any, on the claim. Further complicating the issue was the fact that at that time the Federal Circuit was also deciding cases that failed to acknowledge the existence of the VCAA. See generally Allen v. Principi, 237 F.3d 1368 (Fed. Cir. 2001); Smith (Daniel) v. Gober, 236 F.3d 1370 (Fed.Cir. 2001); and Holbrook v. Gober, 2 Fed.Appx. 911, 2001 WL 32079 (Fed.Cir.). These cases are not cited for their precedential value, but rather to demonstrate of how the Federal Circuit was addressing, or more appropriately, not addressing, the issue of application and scope of the VCAA in the weeks shortly after its enactment. Further evidencing the ambiguity surrounding the meaning and scope of the VCAA is the Court's briefing order in Holliday v. Gober, 14 Vet.App. 197 (2000), issued December 1, 2001. In that order, the Court instructed the parties, as well as amicus, to submit briefs addressing various of issues surrounding the VCAA, including, inter alia, whether certain provisions were meant to be applied retroactively to claims pending at the time of the enactment of the act; whether VA or the Court should decide in the first instance "whether [an] appellant's claim may fall within the scope" of the VCAA; and whether such a decision could even be made before promulgation of regulations by the Secretary as provided for in the legislation. Id. at 198-99. Furthermore, the extent to which certain provisions needed to be applied or examined was not known. Indeed, this Court spent many months, even after the decision in Holliday v. Principi, supra, issued February 22, 2001, dealing with substantially similar issues. For example, 6 months after the Court issued Holliday, the Court issued Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc), addressing for the first time the issue of the VCAA's effect on claims of clear and unmistakable error (CUE) in previous and final decisions. Livesay highlights the fact that this Court was still attempting to come to grips with defining the full scope and intent of the VCAA long after its passage. The Court, even now, is still addressing the ramifications of the act, albeit, in large part, in relation to EAJA applications. In Cycholl, supra, the Court, in a matter where the Board issued a decision after the VCAA's enactment which failed to address the VCAA, held that the Secretary's defense of an EAJA fee application lacked substantial justification because the Board was obligated at the time of the decision at least to address the VCAA. 15 Vet.App. at 359-61. The case currently 5 before the Court however, is distinguishable from Cycholl in that the Board in this case did discuss the VCAA. Thus, Cycholl is not dispositive of the case at hand. The question then is whether the Board was substantially justified in adopting the position that it did. It is significant that the law as it existed at the time of the Board's February 6, 2001, decision was unclear about the scope and extent of the application of the VCAA. Even though the VA General Counsel issued a precedential opinion shortly after the enactment of the VCAA, that opinion dealt with applicability of the statute but not its extent. See VA Gen. Coun. Prec. 11-00 (Nov. 27, 2000). The Board acknowledged the enactment of the VCAA and stated: Among other things, this law eliminates the concept of a well-grounded claim [and] redefines the obligations of the VA with respect to the duty to assist. The [regional office] has not had the opportunity to review the veteran's claim in conjunction with the new legislation. However, the Board finds that all pertinent records are on file and the veteran has been informed of the requirements for an earlier effective date. Accordingly, the Board finds that the veteran has not been prejudiced by this decision. Bernard v. Brown, 4 Vet.App. 384 (1993). Shannon Smith, BVA 99-01319, at 11 (Feb. 6, 2001). It was not until this Court's decision in Holliday v. Principi on February 22, 2001, that the uncertainty surrounding the issue of which claims the VCAA would apply to was, by and large, removed. The Court views its decision in Holliday as one of the more "relevant [and] determinative circumstances" presented in this case. See Stephens, supra. The Court notes that it was the decision in Holliday v. Principi that apparently prompted the Secretary to agree to a joint motion for remand. Indeed, the first and foremost reason for remand cited in the joint motion is Holliday. See Joint Mot. at 1. Although the joint motion also states that the Board's analysis of the VCAA did not indicate with enough certainty that all of the provisions of the VCAA had been satisfied, this concession is offered with hindsight, with Holliday in view. There was no way for the Board to have known on February 6, with any reasonable certainty, that on February 22, the Court would interpret the VCAA as holding all provisions of the act potentially applicable to all pending claims. See Holliday, 14 Vet.App. 280. The language of the act did not say clearly and unambiguously on its face what the Court ultimately determined it meant. To require the Board to have known to discuss at more length all provisions of the VCAA in deciding the appellant's relatively simple claim would in effect require the Board to be prescient. 6 The Court finds the Secretary's concessions in the joint motion merely highlighting his understanding of the law as announced in the Holliday decision. However, there simply was no way for the Board to have predicted what this Court would hold in relation to the provisions of the VCAA, which on their face were not clearly and unmistakably unambiguous. Given the decisions issued by the Court after the VCAA's enactment but preceding the Board's decision, a reasonable person, before the evolution of the law starting with Holliday, could have found the Board's analysis correct. In short, there cannot be a lack of substantial justification based solely upon the Board's failure to predict what the law will become. In determining reasonableness, the Court's focus must be upon the law in effect at the time the government adopted its position in the case, see Bowey, supra, for as the Supreme Court stated in Pierce, supra, our concern is "not what the law now is, but what the government was substantially justified in believing it to have been." 487 U.S. at 561. From that vantage point, when viewing the Board's decision in this case, the only issue is whether it is reasonable to find that the Board's decision, at the time it was made, had a reasonable basis in law and fact. See Stillwell, supra. Given the case law issued by this Court and the Federal Circuit before the Board's decision, it was reasonable for the Board to discuss the VCAA only briefly in order to determine its applicability. See Olney v. Brown, 7 Vet.App. 160 (1994). Thus, we conclude that the Secretary's position was substantially justified at the administrative stage. See Locher, supra. Accordingly, the appellant's EAJA application is DENIED. KRAMER, Chief Judge, concurring in part and dissenting in part: I agree with the majority that the appellant is a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), and I grant that the tenor of the majority's analysis as to substantial justification may be appropriate generally. However, for the reasons discussed below, I believe that substantial- justification analysis does not work under the facts of this case. I agree that the state of the law at the time of the Board of Veterans' Appeals (Board or BVA) decision would leave the Board in some doubt as to what notice content was required under the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). Here, however, we are not addressing whether the Board was substantially justified, i.e., 7 acted reasonably, as to its conclusion regarding the content of the notice; rather, we are addressing whether the Board, in determining that adequate notice was provided, acted reasonably in failing to provide an adequate statement of reasons or bases for that conclusion, the error that the Secretary conceded in the May 29, 2001, joint motion for remand. Specifically, the Board's finding of fact that "the veteran has been informed of the requirements for an earlier effective date" (Shannon D. Smith, BVA 99-01319, at 11 (Feb. 6, 2001)) is not supported by any evidence set forth in the BVA decision regarding any notice provided to the appellant. Indeed, the Board made no express statement of supporting evidence in conjunction with its finding, and the decision contains no implicit evidentiary support, which a discussion of relevant evidence in the factual background section may have provided. As the Secretary conceded in the joint motion for remand, the Board's "discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice . . ." (Motion at 3). Accordingly, because the Board failed to provide an adequate statement of reasons or bases and because our case law as to the reasons-or- bases requirement was clear at the time of the BVA decision, see 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990), in my view, the Secretary's position at the administrative stage, that "the veteran ha[d] been informed of the requirements for an earlier effective date" (Smith, BVA 99-01319, supra), was not substantially justified. See ZP v. Brown, 8 Vet.App. 303, 304 (1995) (per curiam order). I would therefore hold that an award of attorney fees is warranted in this case. 8 --- HOLDAWAY, Judge, filed the opinion of the Court. KRAMER, Chief Judge, filed an opinion concurring in part and dissenting in part. HOLDAWAY, Judge: Before the Court is the appellant’s application, filed through counsel, for an award of attorney fees and expenses under the Equal Access to Justice Act (EAJA). See 28 U.S.C. § 2412. For the following reasons, the Court will deny the application. The appellant’s EAJA application followed an order of the Court, issued by the Clerk of the Court, that vacated a February 6, 2001, Board of Veterans’ Appeals (Board or BVA) decision, and remanded the appellant’s claim for readjudication in light of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106^75,114 Stat. 2096 (Nov. 9, 2000). After the order was issued, the parties filed a joint motion for remand, stating that although the Board’s decision addressed the VCAA, “the discussion [wa]s not thorough enough to indicate with certainty that the provisions of the VCAA ha[d] been met, specifically with respect to notice and the Secretary’s duty to assist,” as clarified in this Court’s subsequent deci*73sion in Holliday v. Principi, 14 Vet.App. 280 (2001) (holding that all provisions of the VCAA are potentially applicable to claims pending on the date of enactment). Joint Motion (Mot.) at 3. “The Court has jurisdiction to award reasonable attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F).” Cullens v. Gober, 14 Vet.App. 234, 237 (2001) (en banc). In order to be eligible for an EAJA award, the applicant must file the EAJA application within the 30 day period set forth in 28 U.S.C. § 2412(d)(1)(B), and the application must contain (1) a showing that the applicant is a prevailing party within the meaning of EAJA; (2) an assertion that the applicant’s net worth does not exceed $2 million; (3) an allegation that the position of the Secretary at the administrative level or in litigation was not substantially justified; and (4) an itemized statement of the fees and expenses sought. See 28 U.S.C. § 2412(d); see also Thayer v. Principi, 15 Vet.App. 204 (2001); Cullens, supra; Bazalo v. Brown, 9 Vet.App. 304, 308 (1996) (en banc) (holding that “statement that [the appellant] is a prevailing party satisfies eligibility requirement for jurisdiction purposes”), rev’d on other grounds sub nom. Bazalo v. West, 150 F.3d 1380, 1384 (Fed.Cir.1998). The appellant’s EAJA application was filed within the 30 day EAJA application period set forth in the statute; she has stated that her net worth does not exceed $2 million; she has provided an itemized statement of the fees sought supported by an affidavit from counsel; and she has alleged that the Secretary’s position at the administrative stage was not justified. Because she has made no argument that the government’s position during the litigation stage was not justified, the Court will not review that matter. See Bucklinger v. Brown, 5 Vet.App. 435 (1993) (holding that arguments not made on appeal are deemed abandoned). In determining the appellant’s eligibility to receive EAJA fees, the Court must find both that the appellant is a prevailing party under EAJA and that the government’s position at the administrative or litigation stage was unjustified. See Stillwell v. Brown, 6 Vet.App. 291 (1994). Whether the appellant is a prevailing party is a threshold question in obtaining an EAJA award. “[I]f the benefit sought in bringing the litigation is not awarded, only a remand predicated upon administrative error confers EAJA prevailing party status on an appellant.” Sachs v. Principi, 15 Vet.App. 414 (2002) (citing Sumner v. Principi, 15 Vet.App. 256 (2001) (en banc)). Here, the appellant did not obtain the relief sought in bringing the litigation. Instead, she obtained a remand for readjudication. Therefore, the focus of our inquiry must turn to whether the remand obtained in this case was predicated upon administrative error. In this case, the Court concludes that it was. The joint motion for remand states: While the Board did refer to the VCAA in its decision, the discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice and the Secretary’s duty to assist. (See BVA [decision] at 11). On remand the BVA must reevaluate Appellant’s claim considering the provisions of the VCAA and provide an adequate statement of reasons or bases as to whether all of the provisions of the VCAA have been met considering the facts of this case. Joint Mot. at 3; see also 38 U.S.C. § 7104(D)(1); Allday v. Brown, 7 Vet.App. 517; 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). In so stating, the Secretary confessed error at the adminis*74trative level. In Cycholl v. Principi, the Court held that “under this Court’s binding precedent, ... [a] remand ... predicated on adjudicative error by the BVA, affords the appellant prevailing-party status.” 15 Vet.App. 355, 359 (2001). Therefore, because the Secretary confessed error at the administrative level, and the remand was predicated upon that error, the Court holds that the appellant is a prevailing party for the purposes of EAJA. Because attaining prevailing party status is only one threshold requirement for attaining EAJA eligibility, prevailing party status alone does not confer entitlement to an EAJA award. Although often confused, the issues of prevailing party and substantial justification are separate and distinct. The Court may conclude that the Board erred in making a decision, thus making the appellant a prevailing party, but still deny the application because the Secretary was substantially justified. Therefore, since the appellant is a prevailing party, the Court will examine the issue of substantial justification. Once an EAJA applicant alleges that the Secretary’s position was not substantially justified, the burden shifts to the Secretary to show that the government’s position was substantially justified in order to avoid paying EAJA fees. See Looker v. Brown, 9 Vet.App. 535, 537 (1996). The Secretary’s position is substantially justified “if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.” Stillwell, 6 Vet.App. at 302 (quoting Pierce v. Underwood, 487 U.S. 552, 556 n. 2, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988)). In demonstrating that its position was substantially justified, VA must establish the reasonableness of its position, which is based upon the “totality of the circumstances.” Id. (citing Essex Electro Engineers, Inc. v. United States, 757 F.2d 247, 252 (Fed.Cir.1985)). If the actions were reasonable, then the actions were substantially justified. See Stillwell, supra. The purpose of EAJA is not to punish the government for decisions later determined incorrect, but rather to afford appellants an avenue through which to address government abuse (i.e., action taken in the face of known law that is contrary to the Secretary’s position). EAJA “ ‘was never intended to chill the government’s right to litigate ... reasonably substantiated positions, whether or not the position later turns out to be wrong.’ ” Carpenter v. West, 12 Vet.App. 316, 321 (1999) (quoting Stillwell, 6 Vet.App. at 303). In defining the scope of what is considered reasonable, the Court in Still-well noted that: The Federal Circuit in Essex set forth the following guidelines: (1) reasonableness is determined by the totality of circumstances, and not by any single-factor approach; (2) reasonableness “turns on what support in law and fact the government offered in defending its case, and ... the merits of the agency decision constitute only one factor in evaluating the justification for the government’s litigating position in court,” Essex, 757 F.2d at 253 (citation omitted); (3) whether the government “drag[ged] its feet,” or “cooperated in speedily resolving the litigation,” id.; and (4) whether the government “departed from established policy in such a way as to single out a particular private party,” id. at 254 (citation omitted). 6 Vet.App. at 302 (emphasis supplied). In determining whether the Secretary has carried his burden of proof of demonstrating that his position, at the administrative stage, was reasonable, “[t]he Court looks to the ‘relevant, determinative circumstances’ ” present. Stephens v. West, 12 Vet.App. 115, 118 (1999) (citations omit*75ted). The Board’s decision must be weighed against the caselaw that prevailed when the government adopted its position. Bowey v. West, 218 F.3d 1373, 1377 (Fed.Cir.2000). At the time of the Board’s February 6, 2001, decision, the Court had not yet addressed the full scope and effect of the VCAA. Although the elimination of the well-grounded-claim requirement was obvious, clear, and unambiguous from the plain language of the legislation, in hindsight, little else was. Indeed, this Court struggled for some time to come to grips with the full extent of what this sweeping legislation did and did not intend. Evidencing this are the cases decided by the Court in the weeks following the enactment of the VCAA. For example, Turner v. Gober, 14 Vet.App. 224 (2000), issued on December 19, 2000, and Ozer v. Principi, 14 Vet.App. 257 (2001), issued on February 6, 2001, failed to mention the existence of the VCAA, and although Smith (Claudus) v. Gober, 14 Vet.App. 227, 231 (2000), issued on December 22, 2000, addressed the VCAA, it found “no reason to consider ... [it] in deciding [the] case.” Similarly, although Woods v. Gober, 14 Vet.App. 214 (2000), issued on December 15, 2000, acknowledged the existence of the VCAA, it failed to address fully the new legislation’s effect, if any, on the claim. Further complicating the issue was the fact that at that time the Federal Circuit was also deciding cases that failed to acknowledge the existence of the VCAA. See generally Allen v. Principi, 237 F.3d 1368 (Fed.Cir.2001); Smith (Daniel) v. Gober, 236 F.3d 1370 (Fed.Cir.2001); and Holbrook v. Gober, 2 Fed.Appx. 911, 2001 WL 32079 (Fed.Cir.). These cases are not cited for their precedential value, but rather to demonstrate of how the Federal Circuit was addressing, or more appropriately, not addressing, the issue of application and scope of the VCAA in the weeks shortly after its enactment. Further evidencing the ambiguity surrounding the meaning and scope of the VCAA is the Court’s briefing order in Holliday v. Gober, 14 Vet.App. 197 (2000), issued December 1, 2001. In that order, the Court instructed the parties, as well as amicus, to submit briefs addressing various of issues surrounding the VCAA, including, inter alia, whether certain provisions were meant to be applied retroactively to claims pending at the time of the enactment of the act; whether VA or the Court should decide in the first instance “whether [an] appellant’s claim may fall within the scope” of the VCAA; and whether such a decision could even be made before promulgation of regulations by the Secretary as provided for in the legislation. Id. at 198-99. Furthermore, the extent to which certain provisions needed to be applied or examined was not known. Indeed, this Court spent many months, even after the decision in Holliday v. Principi, supra, issued February 22, 2001, dealing with substantially similar issues. For example, 6 months after the Court issued Holliday, the Court issued Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc), addressing for the first time the issue of the VCAA’s effect on claims of clear and unmistakable error (CUE) in previous and final decisions. Livesay highlights the fact that this Court was still attempting to come to grips with defining the full scope and intent of the VCAA long after its passage. The Court, even now, is still addressing the ramifications of the act, albeit, in large part, in relation to EAJA applications. In Cycholl, supra, the Court, in a matter where the Board issued a decision after the VCAA’s enactment which failed to address the VCAA, held that the Secretary’s defense of an EAJA fee application lacked substantial justification because the Board was obligated at the time of the decision at *76least to address the VCAA. 15 VetApp. at 359-61. The ease currently before the Court however, is distinguishable from Cycholl in that the Board in this ease did discuss the VCAA. Thus, Cycholl is not dispositive of the case at hand. The question then is whether the Board was substantially justified in adopting the position that it did. It is significant that the law as it existed at the time of the Board’s February 6, 2001, decision was unclear about the scope and extent of the application of the VCAA. Even though the VA General Counsel issued a precedential opinion shortly after the enactment of the VCAA, that opinion dealt with applicability of the statute but not its extent. See VA Gen. Coun. Prec. 11-00 (Nov. 27, 2000). The Board acknowledged the enactment of the VCAA and stated: Among other things, this law eliminates the concept of a well-grounded claim [and] redefines the obligations of the VA with respect to the duty to assist. The [regional office] has not had the opportunity to review the veteran’s claim in conjunction with the new legislation. However, the Board finds that all pertinent records are on file and the veteran has been informed of the requirements for an earlier effective date. Accordingly, the Board finds that the veteran has not been prejudiced by this decision. Bernard v. Brown, 4 Vet.App. 384 (1993). Shannon Smith, BVA 99-01319, at 11 (Feb. 6, 2001). It was not until this Court’s decision in Holliday v. Principi on February 22, 2001, that the uncertainty surrounding the issue of which claims the VCAA would apply to was, by and large, removed. The Court views its decision in Holliday as one of the more “relevant [and] determinative circumstances” presented in this case. See Stephens, supra. The Court notes that it was the decision in Holliday v. Principi that apparently prompted the Secretary to agree to a joint motion for remand. Indeed, the first and foremost reason for remand cited in the joint motion is Holliday. See Joint Mot. at 1. Although the joint motion also states that the Board’s analysis of the VCAA did not indicate with enough certainty that all of the provisions of the VCAA had been satisfied, this concession is offered with hindsight, with Holliday in view. There was no way for the Board to have known on February 6, with any reasonable certainty, that on February 22, the Court would interpret the VCAA as holding all provisions of the act potentially applicable to all pending claims. See Holliday, 14 Vet.App. 280. The language of the act did not say clearly and unambiguously on its face what the Court ultimately determined it meant. To require the Board to have known to discuss at more length all provisions of the VCAA in deciding the appellant’s relatively simple claim would in effect require the Board to be prescient. The Court finds the Secretary’s concessions in the joint motion merely highlighting his understanding of the law as announced in the Holliday decision. However, there simply was no way for the Board to have predicted what this Court would hold in relation to the provisions of the VCAA, which on their face were not clearly and unmistakably unambiguous. Given the decisions issued by the Court after the VCAA’s enactment but preceding the Board’s decision, a reasonable person, before the evolution of the law starting with Holliday, could have found the Board’s analysis correct. In short, there cannot be a lack of substantial justification based solely upon the Board’s failure to predict what the law will become. *77In determining reasonableness, the Court’s focus must be upon the law in effect at the time the government adopted its position in the case, see Bowey, supra, for as the Supreme Court stated in Pierce, supra, our concern is “not what the law now is, but what the government was substantially justified in believing it to have been.” 487 U.S. at 561, 108 S.Ct. 2541. From that vantage point, when viewing the Board’s decision in this case, the only issue is whether it is reasonable to find that the Board’s decision, at the time it was made, had a reasonable basis in law and fact. See Stillwell, supra. Given the case law issued by this Court and the Federal Circuit before the Board’s decision, it was reasonable for the Board to discuss the VCAA only briefly in order to determine its applicability. See Olney v. Brown, 7 Vet.App. 160 (1994). Thus, we conclude that the Secretary’s position was substantially justified at the administrative stage. See Locher, supra. Accordingly, the appellant’s EAJA application is DENIED. --- KRAMER, Chief Judge, concurring in part and dissenting in part. I agree with the majority that the appellant is a prevailing party for purposes of the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), and I grant that the tenor of the majority’s analysis as to substantial justification may be appropriate generally. However, for the reasons discussed below, I believe that substantial-justification analysis does not work under the facts of this case. I agree that the state of the law at the time of the Board of Veterans’ Appeals (Board or BVA) decision would leave the Board in some doubt as to what notice content was required under the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). Here, however, we are not addressing whether the Board was substantially justified, i.e., acted reasonably, as to its conclusion regarding the content of the notice; rather, we are addressing whether the Board, in determining that adequate notice was provided, acted reasonably in failing to provide an adequate statement of reasons or bases for that conclusion, the error that the Secretary conceded in the May 29, 2001, joint motion for remand. Specifically, the Board’s finding of fact that “the veteran has been informed of the requirements for an earlier effective date” (Shannon D. Smith, BVA 99-01319, at 11 (Feb. 6, 2001)) is not supported by any evidence set forth in the BVA decision regarding any notice provided to the appellant. Indeed, the Board made no express statement of supporting evidence in conjunction with its finding, and the decision contains no implicit evidentiary support, which a discussion of relevant evidence in the factual background section may have provided. As the Secretary conceded in the joint motion for remand, the Board’s “discussion is not thorough enough to indicate with certainty that the provisions of the VCAA have been met, specifically with respect to notice ...” (Motion at 3). Accordingly, because the Board failed to provide an adequate statement of reasons or bases and because our case law as to the reasons-or-bases requirement was clear at the time of the BVA decision, see 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990), in my view, the Secretary’s position at the administrative stage, that “the veteran ha[d] been informed of the requirements for an earlier effective date” (Smith, BVA 99-01319, supra), was not substantially justified. See ZP v. Brown, 8 Vet.App. 303, 304 (1995) (per curiam order). I would therefore hold that an award of attorney fees is warranted in this case. --- ## Smith v. Principi, 16 Vet. App. 417 (2002) {#816897} *16 Vet. App. 417* Official source: _Smith v. Principi, 16 Vet. App. 417, decided 2002-10-22._ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS No. 98-1202 MARY L. SMITH , APPELLANT , V. ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. On Appellant's Application for Attorney Fees and Expenses (Decided October 22, 2002 ) David L. Bourgoin, of Honolulu, Hawaii, was on the pleadings for the appellant. Leigh A. Bradley, General Counsel; Ron Garvin, Assistant General Counsel; Carolyn F. Washington, Deputy Assistant General Counsel; and Peter M. Donawick, all of Washington, D.C., were on the pleading for the appellee. Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges. FARLEY, Judge: Before the Court is the appellant's application for attorney fees and expenses in the amount of $15,775 pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), and her supplemental request for fees in the amount of $1,875. The appellant's application seeks fees for services provided, inter alia, before her attorney filed an appearance in this matter and after the Court granted his motion to withdraw as counsel. The Secretary argues that the appellant is not eligible to collect fees pursuant to EAJA for services performed by her attorney during the period that he was not the attorney of record in this proceeding. The appellant's application has been submitted to this panel for consideration of that limited issue. I. The appellant, appearing pro se, filed a Notice of Appeal from a June 4, 1998, Board of Veterans' Appeals (Board or BVA) decision that had denied her claim for service connection for a psychiatric disorder, including schizophrenia and post-traumatic stress disorder (PTSD). On December 4, 1998, attorney David L. Bourgoin entered an appearance and filed with the Court a copy of his fee agreement with the appellant. On October 20, 1999, Mr. Bourgoin filed a motion to withdraw as counsel, wherein he explained that he had insufficient argument to pursue the case properly. He further explained that he would assist the appellant with her "informal reply to the Court" and expressed an intent to file an application for EAJA fees for work helping the appellant with her case. On November 16, 1999, the Court issued an order granting counsel's motion to withdraw. In that order, the Court stated that "[t]he appellant is treated as self-represented unless and until a qualified representative enters an appearance." The appellant subsequently filed pro se an informal brief in which she argued that the Board failed to consider her original discharge papers, which, she contended, demonstrated that her military service aggravated a preexisting psychiatric condition and caused her PTSD. The Secretary filed a motion for summary affirmance. On June 6, 2000, the Court vacated the Board's decision, finding that the Board's conclusion that the appellant's service did not aggravate her condition beyond its normal progression was not supported by an adequate statement of its reasons or bases. Accordingly, the Court remanded the matter. On August 18, 2000, attorney David Bourgoin entered a second appearance in this matter and filed with the Court a copy of an attorney fee agreement dated August 11, 2000. That fee agreement states that the veteran "recognizes that [Bourgoin] represented [her] earlier in this case" and that the veteran "accepts and incorporates all prior billable hours as part of this current contract to represent [the veteran] before the Court." The agreement provides that the veteran will pay as fees only the amount awarded by the government pursuant to EAJA, if any. On September 5, 2000, the appellant filed an application for attorney fees and expenses pursuant to EAJA, seeking fees for work performed by attorney Bourgoin from July 16, 1998, through August 2000. The Secretary filed a response in which he argues that the appellant is not entitled to EAJA fees for any hours expended by her attorney during the period he was not the attorney of record in this proceeding. The Secretary contends more specifically that the appellant is not entitled to fees for the period prior to December 4, 1998, (the date the first fee agreement was filed with the Court) or from November 16, 1999, (the date the Court granted the appellant's counsel's motion to withdraw) to August 17, 2000, (the last date on which the appellant was self-represented prior to her counsel's entering a second appearance in order to file an application for EAJA fees). In reply, the 2 appellant, through counsel, argues that an attorney-client relationship existed before her attorney filed the first fee agreement and after the attorney resigned from the case. The appellant's counsel advises the Court that he withdrew from this case based on advice from other attorneys that the case could not be won. Counsel further advises that he continued to represent the appellant by drafting an informal brief, and that, although not lengthy, that informal brief had been revised several times before the appellant filed the final draft. Counsel seeks fees for an additional 15 hours spent defending the EAJA application. II. This Court has jurisdiction to award attorney fees and expenses pursuant to 28 U.S.C. § 2412(d)(2)(F). The appellant's submission meets the EAJA application requirements because it was filed within the 30-day EAJA application period and because it contains (1) a showing that the applicant is a prevailing party; (2) a showing that her net worth does not exceed $2 million; (3) an allegation that the Secretary's position was not substantially justified; and (4) an itemized statement of attorney fees sought. See 28 U.S.C. § 2412(d)(1)(B); Bazalo v. West, 150 F.3d 1380, 1383-84 (Fed. Cir. 1998). The Secretary does not contest that the appellant is a prevailing party or that the position of the government was not substantially justified, and the Court agrees. A. Time Billed for Work Done Prior to December 4, 1998 A formal fee agreement is not necessary for an attorney-client relationship to commence. Rozmus v. West, 13 Vet.App. 386, 387 (2000) (per curiam order). In Rozmus, the Court found that the evidence proffered by the appellants showed that they had sought and received advice and assistance from their attorneys in matters pertinent to their appeals to the Court before they signed formal fee agreements. 13 Vet.App. at 387. As was the case in Rozmus, the Secretary here does not contest the validity of the evidence provided to establish that an attorney-client relationship existed before the appellant and attorney Bourgoin signed their first formal fee agreement in this matter. Therefore, because such attorney-client relationship existed, the Court holds that the appellant is eligible to collect fees pursuant to EAJA for attorney services provided prior to the signing of the first fee agreement. 3 B. Time Billed for Work Done from November 16, 1999, to August 17, 2000 The appellant's EAJA application presents this Court with a question of first impression: Is work performed by an attorney after he has formally withdrawn from a case compensable under EAJA? We have found no other case in which an EAJA applicant sought to collect attorney fees for work performed by an attorney after withdrawing from a case. In any event, we are guided by the basic principle that "in litigation, an attorney's actions are relevant only insofar as they are on behalf of a client represented by that attorney." Similes v. West, 11 Vet.App. 115, 118 (1998). "[W]ork done by an attorney is compensable under the EAJA only if the attorney has been empowered by an agreement – which creates an attorney-client relationship – to do work on behalf of the appellant." Id. at 120. In this matter, the appellant and her attorney entered into a formal fee agreement, which provided that the attorney would receive a percentage of any past-due benefits eventually awarded to the appellant as a result of her appeal. Counsel informed the Court that he wished to withdraw from representing the appellant because he did not believe the appeal could be successful. On November 16, 1999, the Court issued an order granting counsel's motion to withdraw and stating that the "appellant is treated as self-represented unless and until a qualified representative enters an appearance." Although counsel informed the Court that he would continue to "assist" the appellant, such assistance cannot be considered work requiring the assistance of an attorney because the appellant was, at that point, appearing pro se. When the appellant's attorney filed his second notice of appearance in order to file the instant EAJA application, he also filed a second fee agreement, which specifically noted that counsel would neither represent the appellant before the BVA nor collect any percentage of past-due benefits if awarded. This second fee agreement further supports the conclusion that counsel's withdrawal terminated his original agreement with the appellant. Any work the attorney performed after he declared the case unwinnable and withdrew as counsel of record cannot be considered work that is typically performed by an attorney or that is consistent with the zealous advocacy EAJA is intended to compensate. See Chesser v. West, 11 Vet.App. 497, 504 (1998). Pursuant to Rozmus, supra, an appellant generally may be eligible for fees pursuant to EAJA for work performed prior to entering into a formal fee agreement with his or her attorney and prior 4 to that attorney's filing a notice of appearance with the Court. However, once an attorney, with the permission of the Court, withdraws from a case, any subsequent services performed in the context of that case are not compensable under EAJA unless they are performed after a new notice of appearance is filed with the Court. Therefore, the appellant is not eligible to collect fees pursuant to EAJA for services performed following her attorney's withdrawal on November 16, 1999, until counsel filed his second appearance on August 18, 2000. III. The Court having determined that EAJA fees are to be awarded, the matter of determining what constitutes a reasonable fee in this matter is returned to Judge Farley for single-judge disposition. See 28 U.S.C. § 2412(d)(2)(A); Perry v. West, 11 Vet.App. 319, 327 (1998); Frankel v. Derwinski, 1 Vet.App. 23 (1990). 5 --- ## Smith v. Principi, 16 Vet. App. 417 (2002) {#816898} *16 Vet. App. 417* Official source: _Smith v. Principi, 16 Vet. App. 417, decided 2002-10-18._ UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO . 02-8003 IN RE DARRYL SMITH, ATTORNEY AT LAW Before KRAMER, Chief Judge, and IVERS and GREENE, Judges ORDER On April 22, 2002, the Court of Appeals of Maryland issued an order disbarring on consent attorney Darryl J. Smith, the respondent, from the practice of law in the State of Maryland for commingling and misappropriation of client funds. On July 9, 2002, the Court ordered the respondent to show cause, within 30 days thereafter, why he should not be disbarred from practice before this Court as reciprocal discipline, pursuant to Rule 7(d) of the Court's Rules of Admission and Practice. The respondent was advised that a failure to respond to the order would be deemed to be consent to such disbarment. The respondent has not responded to the order. Accordingly, pursuant to Rule 7(d)(3), it is ORDERED that Darryl J. Smith is disbarred from practice before this Court. DATED: October 18, 2002 PER CURIAM. CERTIFIED MAIL - RETURN RECEIPT REQUESTED