             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 99-1001

JAMES T. BENJAMIN ,                                                         APPELLANT ,

    V.


ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,                                              APPELLEE.


                         Before HOLDAWAY, IVERS and STEINBERG, Judges.

                                                      ORDER

         On April 19, 2001, the Court, in a single-judge order, vacated an April 1, 1999, decision
of the Board of Veterans' Appeals and remanded the matter for readjudication in light of the
enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096
(Nov. 9, 2000). On May 10, 2001, the appellant, through counsel, filed a motion for reconsideration,
or, in the alternative, for a panel decision.

         Upon consideration of the foregoing, the parties' prior pleadings, and the record on appeal,
it is

         ORDERED, by the single judge, that the motion for reconsideration is denied. It is further

         ORDERED, by the panel, that the motion for a panel decision is denied.

DATED: September 6, 2001                                                             PER CURIAM.

        STEINBERG, Judge, dissenting: I agree that this case should be remanded for the Board of
Veterans' Appeals (Board or BVA) to consider the potentially applicable provisions of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA).1 I
voted in favor of a panel decision, however, because I believe that the Court should also address two
of the appellant's assertions of error that are not predicated on the potential applicability of the


         1
             See Holliday v. Principi, 14 Vet.App. 280, 290 (holding that, in view of "the absence of [Department of
Veterans Affairs (VA)] implementing regulations, and . . . [in view of] concerns of fundamental fairness and fair process,
the Court must avoid cutting off an appellant's rights under the [Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA),] by prematurely injecting itself into the VA adjudication process and
making determinations on issues that were not addressed by VA in the first instance" and that, therefore, "at least at this
time . . . this Court may not determine in the first instance the applicability of the VCAA" to an appellant's claims), 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).
VCAA and that are capable of repetition on remand.2

         On November 27, 2000, the appellant filed a brief that asserts several adjudication errors in
the Board's April 1, 1999, decision. The Secretary filed a brief in reply on March 9, 2001; he argues
that readjudication is necessary in light of the enactment of the VCAA and that such a remand would
render moot the consideration of any purported adjudicative errors in the BVA decision. Secretary's
Brief at 4. The appellant, in his May 10, 2001, motion for reconsideration or panel decision, asserts,
inter alia, that "to remand strictly under the VCAA would prejudice him . . . and shield the Secretary
from judicial review of those Board errors [that] are unrelated to the VCAA". Appellant's Motion
at 3.

        In a case where enactment of the VCAA necessitates remand, all other assertions of Board
error are not rendered moot. This Court has both the jurisdiction and the discretion to address all
assertions of Board adjudication error, including errors asserted as alternative grounds for remand.
See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) (Court has, but often refrains from
exercising either sua sponte or at appellant's request, discretion to address allegations of error by
Board when it is determined that VCAA necessitates remand); Mahl v. Principi, 15 Vet.App. 37, 47
(2001) (Steinberg, J., dissenting) ("in a case such as this one where a claim is remanded pursuant to
Karnas [v. Derwinski, 1 Vet.App. 308 (1991),] the issue whether the appellant could be entitled to
the benefit sought on appeal under the law as it existed prior to the enactment of the VCAA is still
very much in contention because Karnas requires consideration of both old and new law, with the
ultimate application of the law that is more favorable to the claimant").

        Indeed, this Court's jurisdiction and obligation to address asserted "old law" errors is
established as set forth in my dissent in Mahl, supra, and in two additional cases that have come to
my attention since that time. In Kingston v. West, this Court held that the appellant could not "waive
his right to readjudication pursuant to Karnas", Kingston, 11 Vet.App. 272, 273 (1998) (per curiam
order). The Court then went on to hold that the Board's decision under old law had failed to provide
an adequate statement of reasons or bases and to remand on that ground as well as under Karnas.
Id. at 273-74. Shortly before that case, the Court in Baker v. West, 11 Vet.App. 163 (1998), also
refused to accept a waiver of a remand under Karnas, id. at 168-69, and then held that "VA had
failed in its duty to assist the veteran by not [sic] obtaining his [Social Security Administration]
records", id. at 169. Explaining the necessity to consider allegations of BVA adjudicative error
notwithstanding the remand for readjudication pursuant to Karnas, the Court in Kingston stated:
"Because the Board will have to compare the appellant's benefits under both the original and the
amended rating schedule, the Court must consider his challenges to the BVA decision before us."




         2
          See Mahl v. Principi, 15 Vet.App. 37, 41 (2001) (Steinberg, J., dissenting) (if Court were to issue decision
holding that certain errors had occurred in Board adjudication, possibility that Board would, on remand, repeat those
same errors would be markedly reduced).



                                                          2
Kingston, 11 Vet.App. at 273 (citing Baker, supra).3 Hence, rather than the statement in Mahl,
15 Vet.App. at 38, echoed in Best, 15 Vet.App. at 19, that "[i]t has been the practice of this Court
that when a remand is ordered because of an undoubted error that requires such a remedy, the Court
will not, as a general rule, address other putative errors raised by the appellant", the law at the time
of Mahl and Best seems to have been exactly the opposite. See also Mahl, 15 Vet.App. at 44-45
(Steinberg, J., dissenting). Finally, the conflict between the Court's action today in refusing to
review the asserted BVA errors and the Court's actions in Kingston and Baker is all the more
puzzling because one of my colleagues in the majority today was part of the panels in each of those
cases and authored the Court's opinion in Baker.

         The appellant contends that the Department of Veterans Affairs (VA) medical examiner
failed to review the appellant's claims file, including any of his service medical records (SMRs),
prior to his examination in March 1997. Dr. John A. Crowe, a VA medical examiner, stated in his
April 1997 report that the claims file was not available for his review prior to, or at the time of, his
March 1997 medical examination of the appellant. Record (R.) at 112. The Board decision noted
the appellant's contention regarding the inadequacy of the March 1997 examination, but concluded
that "there is nothing about the examination that appears inadequate on its face". R. at 3. Contrary
to this conclusion, a medical examiner must consider the records of prior medical examinations and
treatment in order to ensure a fully informed opinion. See Hampton v. Gober, 10 Vet.App. 481, 483
(1997); Schroeder v. Brown, 6 Vet.App. 220, 225 (1994); Green (Victor) v. Derwinski, 1 Vet.App.
121, 123 (1991). The failure to make the appellant's claims file, including his SMRs, available to
Dr. Crowe prior to the March 1997 examination, calls into question the thoroughness of the
examination – an examination that the Board relied on in its decision. See Green, 1 Vet.App. at 124
(1991) ("thorough and contemporaneous medical examination" is one that "takes into account the
records of the prior medical treatment, so that the evaluation of the claimed disability will be a fully
informed one"). The Board thus erred in concluding that Dr. Crow's examination was not inadequate
on its face.

        The appellant also asserts that the Board's finding that he experienced no functional disability
as a result of his heel injury was made without any supporting medical evidence in violation of the
reasons-or-bases requirement in 38 U.S.C. § 7104(d). Appellant's Motion at 2. I agree. A disability
of the musculoskeletal system requires a determination as to whether the parts of the system affected
by the claimed disability can perform the normal working movements of the body with normal
excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2000). "When complete
examinations are not conducted covering all systems of the body affected by disease or injury, it is
impossible to visualize the nature and extent of the service-connected disability." 38 C.F.R. § 4.42
(2000). The Board may consider only medical evidence independent of its own medical opinions
in order to support its findings. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991); see also

         3
            This is exactly the point I made in my dissent in Mahl – that a VCAA remand does not render moot the
appellant's allegations of BVA adjudication error, because "the issue whether the appellant could be entitled to the benefit
sought on appeal under the law as it existed prior to the enactment of the VCAA is still very much in contention because
Karnas requires consideration of both old and new law, with the ultimate application of the law that is more favorable
to the claimant". Mahl, 15 Vet.App. at 47.

                                                             3
Colayong v. West, 12 Vet.App. 524 (1999) (finding expert medical opinion deficient and ordering
Board to obtain new expert opinion on remand). The report of Dr. Crowe (R. at 111-12), contains
a summary of function as "[w]ithin the limits of normal" for the claimed heel disorder, but does not
include a description of the tests used to make that determination, and offers no opinion as to the
specific considerations listed under 38 C.F.R. § 4.40, including endurance, coordination, strength,
and speed. See Allday v. Brown, 7 Vet.App. 517, 527 (1995) (under 38 U.S.C. § 7104(d)(1), Board
must include in its decision written statement of reasons or bases for its findings and conclusions on
all material issues of fact and law presented on record; statement must be adequate to enable
appellant to understand precise basis for Board's decision, as well as to facilitate review in Court).

        Because I believe that these BVA errors are capable of repetition on remand, they should be
addressed by the Court in the context of its remand to the Board for readjudication of this appeal.
See Kingston and Baker, both supra. Accordingly, I voted for a panel decision, in order for the Court
to do so, and I therefore respectfully dissent.




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