             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 99-1788

MOSES RENTI HOLLIDAY ,                                       APPELLANT ,

        V.


HERSHEL W. GOBER,
ACTING SECRETARY OF VETERANS AFFAIRS,                        APPELLEE.


             Before KRAMER, Chief Judge, and STEINBERG and GREENE, Judges.

                                            ORDER

        On October 12, 2000, the Court, in a single-judge memorandum decision, affirmed a
September 30, 1999, Board of Veterans' Appeals (Board or BVA) decision that denied increased VA
disability compensation ratings for sensory impairment and hyperesthesia with trigeminal nerve
damage, for residuals of a fracture of the left orbital floor, for sinusitis, for diplopia, and for
laceration of the left upper eyelid. Record at 4, 19. On November 1, 2000, the appellant filed a
timely motion for reconsideration or, in the alternative, for a panel decision.

        The Court notes that, after its October 12, 2000, decision, Congress enacted several laws
regarding veterans benefits claims. First, on October 30, 2000, the Floyd D. Spence National
Defense Authorization Act for Fiscal Year 2001, Pub. L. No. 106-398, 114 Stat. 1654, app. § 1611
(Oct. 30, 2000) [hereinafter NDAA § 1611], amended 38 U.S.C. § 5107 to clarify the Secretary's
duty to assist claimants in developing claims for benefits under title 38, United States Code. Then,
on November 1, 2000, the Veterans Benefits and Health Care Improvement Act of 2000, Pub. L. No.
106-419, 114 Stat. 1822 (Nov. 1, 2000) [hereinafter VBHCIA], was enacted, with the following
coordination provision:

               If the Veterans Claims Assistance Act of 2000 is enacted before the
       provisions of the Floyd D. Spence National Defense Authorization Act for Fiscal
       Year 2001 are enacted into law, section 1611 of the Floyd D. Spence National
       Defense Authorization Act for Fiscal Year 2001, including the amendments made by
       that section, shall not take effect. If the Veterans Claims Assistance Act of 2000 is
       enacted after the provisions of the Floyd D. Spence National Defense Authorization
       Act for Fiscal Year 2001 are enacted into law, then as of the enactment of the
       Veterans Claims Assistance Act of 2000, the amendments made by section 1611 of
       the Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 shall
       be deemed for all purposes not to have taken effect and that section shall cease to be
       in effect.
Id. at § 104(c)(2), 114 Stat. at 1828. Finally, on November 9, 2000, the Veterans Claims Assistance
Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) [hereinafter VCAA], was enacted.
The VCAA, inter alia, amended 38 U.S.C. § 5107(a) to eliminate the well-grounded-claim
requirement (a requirement that had appeared in section 5107(a) prior to any amendment of that
section by the NDAA). VCAA § 4. Additionally, through the amendment of 38 U.S.C. §§ 5102
("Application forms furnished upon request; notice to claimants of incomplete applications") and
5103 ("Notice to claimants of required information and evidence") and the addition of 38 U.S.C.
§ 5103A ("Duty to assist claimants"), the VCAA reaffirmed and clarified the Secretary's duty to
assist claimants. VCAA § 3. Although the VCAA is silent as to whether new sections 5102, 5103,
and 5103A are to be applied retroactively, the VCAA specifically states that "the provisions of
section 5107 . . . as amended by section 4 of [the VCAA], apply to any claim . . . filed before the date
of the enactment of [the VCAA] and not final as of that date." VCAA § 7(a)(2).

       In view of these changes in law, the Court will grant the appellant's motion for a panel
decision and require supplemental briefing addressing the following questions:

               (1) Did the coordination provision of VBHCIA § 104(c)(2) nullify the NDAA
       § 1116 amendment from the date of the enactment of that amendment or was that
       NDAA § 1116 amendment in effect for any period of time between the date of the
       NDAA's enactment and the date of the VCAA's enactment (and is the answer to that
       question affected by the fact that the VBHCIA was enacted prior to the VCAA)? If
       the latter, is the NDAA § 1116 amendment intended to be applied retroactively to
       claims pending on the date of its enactment? See Karnas v. Derwinski, 1 Vet.App.
       308, 313 (1991) ("where the law or regulation changes after a claim has been filed
       or reopened but before the administrative or judicial appeal process has been
       concluded, the version most favorable to [the] appellant should and we so hold will
       apply unless Congress provided otherwise or permitted the Secretary of Veterans
       Affairs to do otherwise and the Secretary did so").

               (2) Do the VCAA amendments to sections 5102, 5103, and 5106 and new
       section 5103A as added by the VCAA, apply retroactively to claims pending on the
       date of the enactment of the VCAA? See Karnas, supra. In this regard, did
       Congress, by explicitly making new section 5107 applicable to claims pending on the
       date of the VCAA's enactment and remaining silent as to the retroactivity of the
       VCAA amendments regarding sections 5102, 5103, 5103A, and 5106 provide, within
       the meaning of Karnas, supra ("unless Congress provided otherwise"), that those
       latter amendments are not to be applied to claims pending on that date? Compare
       Karnas, 1 Vet.App. at 311-13 (discussing Thorpe v. Housing Authority of Durham,
       393 U.S. 268 (1969), Bradley v. School Bd., 416 U.S. 696 (1974), Bennett v. New
       Jersey, 470 U.S. 632 (1985), and Bowen v. Georgetown University Hospital,
       488 U.S. 204 (1988)), with Landgraf v. USI Film Products, 511 U.S. 244 (1994).

               (3) Assuming that the NDAA § 1116 amendment and the VCAA amendments


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regarding sections 5102, 5103, and 5106 and new section 5103A as added by the
VCAA [hereinafter new NDAA/VCAA provisions] may be applied to claims
pending on the respective dates of enactment of those laws (issues regarding the
VCAA amendment to section 5107 have been addressed in Luyster v. Gober,
__ Vet.App. __, No. 99-1271 (Nov. 20, 2000) and, therefore, for purposes of this
order that amendment is not included as a new provision):

              (i) Who--VA or the Court--should decide in the first instance
       whether the appellant's claim may fall within the scope of any of the
       new provisions?

                  (ii) As to section 5103A, in view of the requirement that the
       Secretary prescribe regulations to carry out that section (38 U.S.C.
       § 5103A(e) (as added by VCAA § 3)) and in view of the express
       grant of authority to the Secretary to provide "such other assistance
       . . . as the Secretary considers appropriate" (38 U.S.C. § 5103A(g) (as
       added by VCAA § 3)), can it be decided--by either VA or the Court--
       prior to the prescribing of such regulations that the appellant's claim
       does not fall within the scope of section 5103A?

                (iii) Assuming that it is the Court that ought to decide in the
       first instance that the appellant's claim may fall within the scope of
       one or more of the new NDAA/VCAA provisions, should the Court
       further determine which law (the old law or the new NDAA/VCAA
       provisions) is most favorable to the appellant's claim and thus must
       be applied under Karnas, supra? Compare Baker v. West,
       11 Vet.App. 163, 168 (1998) (where law changed as to portion of
       rating schedule pertaining to mental disorders after appellant filed
       appeal with Court, Court remanded for BVA to apply Karnas in first
       instance by making factual determination as to which law was more
       favorable to appellant), with Henderson v. West, 12 Vet.App. 11, 18
       (1998) (holding Karnas inapplicable because change in law was
       neutral). In this regard, could the law prior to the enactment of the
       new NDAA/VCAA provisions be found on any basis to be more
       favorable to the appellant's claim than the law as amended by these
       provisions?

                (iv) Assuming that it is the Court that ought to decide in the
       first instance whether the appellant's claim may fall within the scope
       of any of the new NDAA/VCAA provisions, would application of
       one or more of those provisions have a potentially beneficial effect,
       within the meaning of Karnas, supra, on this appellant's claim and,
       if so, what is it?


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          Upon consideration of the foregoing, it is

          ORDERED that the Court's October 12, 2000, memorandum decision is withdrawn. It is
further

          ORDERED that the appellant's motion for a panel decision is granted. It is further

        ORDERED that, not later than January 5, 2001, each party file with the Court, and serve on
the other party, a supplemental brief addressing the questions enumerated above.

        Interested amicus curiae are invited to submit within the time allowed to the parties
memoranda on the questions enumerated above. The Court will schedule oral argument at the
earliest convenience of the parties after briefs are filed.

       The parties and any interested amici are cautioned that the Court does not intend to grant
extensions of time with respect to any response to this order.

DATED:           December 1, 2000                      PER CURIAM.




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