              UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


N O . 98-295

T HOMAS J. K UZMA,                                                            A PPELLANT ,

         V.


ANTHONY J. PRINCIPI,
S ECRETARY OF V ETERANS A FFAIRS,                                             A PPELLEE.


                      Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY,
                              IVERS, STEINBERG, and GREENE, Judges.

                                                        ORDER

      On January 31, 2002, the Court ordered that this matter would proceed before the full
Court. It is

       ORDERED that the Court's January 31, 2002, order is revoked. The matter will proceed
before a panel composed of Judges Holdaway, Ivers, and Steinberg.

DATED:             July 18, 2002                                    PER CURIAM.

        STEINBERG, Judge, dissenting: I cannot join in the Court's decision to remove this case
from en banc consideration because I believe that the motion filed by the appellant on June 21, 2002,
has raised issues that warrant full-Court consideration, both because they implicate the continued
viability of this Court's binding precedential opinions in two cases, Holliday and Karnas, both infra,
and because they raise matters of "exceptional importance".1

        The appellant's June 21, 2002, motion, which I believe that the full Court should grant, seeks
leave to file supplemental briefing on the following questions:

                   1. Whether . . . VA's duty[-]to[-]assist regulations issued on
                   August 29, 2001[, 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001)
                   (to be codified at 38 C.F.R. pt. 3)] have application under this Court's
                   holding in Karnas v. Derwinski, 1 Vet.App. 308 (1991), to an appeal
                   to this Court of a pre-[Veterans Claims Assistance Act of 2000, Pub.
                   L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA)]-enactment
                   BVA decision where neither the Agency of Original Jurisdiction nor


         1
            See U .S . V ET .A PP . R U LE 35(c) (providin g th at full-C ourt consideration is n ot "granted unless such action
is n ecessary to secure or m ain tain un iform ity of th e C ourt's decision s or to resolve a qu estion of exception al
im portan ce").
                   the BVA had issued a decision that had become final and non-
                   appealable before that date.

                   2. Whether, if the VCAA were construed not to authorize retroactive
                   application of its provisions (other than [in] § 7[, which expressly
                   provides for retroactivity as to § 4's amendments]), the Secretary
                   would, nevertheless, have had the authority to continue to apply the
                   August 29, 2001, regulations under pre-VCAA authority in effect on
                   the date of the issuance of the regulations.

                   3. Whether, if question (2) is answered in the affirmative, the
                   Secretary would also have the authority to apply those regulations
                   retroactively.

                   4. Whether the holdings in Dyment and Bernklau[, both infra,]
                   articulate a rule of finality regarding decisions of this Court which are
                   appealed to the Federal Circuit as compared to the non-finality of
                   decisions appealed to this Court, from the [BVA]. Specifically,
                   whether the decisions in Dyment and Bernklau can be read to have
                   implicitly overruled this Court's decision and equitable doctrine
                   created in Karnas [, supra].

                   5. Whether the principles of fundamental fairness require that the
                   Agency be estopped from evading the interpretation of the VCAA
                   made by its General Counsel in its precedential opinion of
                   November 27, 2000, VA Gen. Coun. Prec. 11-00 [(Nov. 27, 2000)
                   [hereinafter G.C. Prec. 11-00]]. Specifically, whether the Agency can
                   be now allowed to maintain a different position in litigation before
                   this Court [that] would directly conflict with [G.C. Prec.] 11-00 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." [Ibid.]

Motion at 2-3.

         Notwithstanding this Court's opinion in Holliday v. Principi, 14 Vet.App. 280, 285 (holding,
inter alia, that all provisions of VCAA were retroactively applicable to claims pending at time of
enactment of VCAA), 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),2 it now appears that the VCAA no


         2
               See also VA Gen. Coun. Prec. 11-00, p. 4 (Nov. 27, 2000) [h erein after G .C . Prec. 11-00] ("all of the . .
. provisions [of th e V eteran s C laim s A ssistance A ct of 2000, P u b . L. N o. 106-475, 114 Stat. 2096 (N ov. 9, 2000)
(V C A A ),] apply to claim s filed on or after N ovem ber 9, 2000, as w ell as to claim s filed before th en but n ot fin ally

                                                              2
longer is retroactively applicable to a claim decided by the Board before the VCAA's enactment date
(November 9, 2000) and on appeal in this Court at the time of that enactment. See Dyment v.
Principi, 287 F.3d 1377, 1385 (Fed. Cir. 2002), mot. for en banc review filed (May 3, 2002). In so
concluding, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) reasoned:

                    [T]he inference is nearly inescapable that section 3(a) of the VCAA,
                    unlike section 4[, which explicitly provides for retroactivity], was not
                    intended to be given retroactive effect. Certainly there is nothing in
                    the statutory language or context that would overcome the
                    presumption of non-retroactivity set forth by the Supreme Court [in
                    Landgraf v. USI Film Products, 511 U.S. 244, 272-73 (1994)].

Ibid; cf. ibid. (stating: "We therefore decline to adjudicate [the] claim in light of the standard set
forth in section 3(a) . . . , which was not enacted while [the] claim was under consideration by . . .
[VA].") In Bernklau v. Principi, the Federal Circuit concluded that Dyment "was plainly correct",
because the Supreme Court has "held repeatedly that federal legislation is to be construed to avoid
retroactivity unless we can discern clear congressional intent for that result", Bernklau, 291 F.3d
795, 804 (Fed. Cir. 2002) (citing Landgraf, 511 U.S. at 270).3

       However, in my view, any opinion applying and interpreting Dyment and Bernklau should
be preceded by full briefing on the effect of these two cases, particularly briefing as to whether the
VA "Duty to Assist" regulations issued on August 29, 2001,4 have application under Karnas v.
Derwinski5, to an appeal in this Court of a pre-VCAA-enactment BVA decision where neither VA




decided as of th at date").

          3
                C uriously, th e Bernklau opin ion qu oted a passage from Landgraf v. USI Film Products, 511 U .S. 244, 270
(1994) ("[s]in ce th e early d ays of th is C ourt, w e h ave declin ed to give retroactive effect to statutes b urden in g private
righ ts un less C on gress h ad m ade clear its in ten t"), th at w ould appear in applicable to th e situation presen ted by th e
V C A A , in w h ich th e fed eral govern m en t im posed ad dition al ob ligation s on its e lf tow ard private parties an d did
n ot b urden th e righ ts of p rivate parties. Bernklau v. Principi, 29 1 F .3d 79 5, 80 4 (Fed. C ir. 20 02 ). T h e Su prem e
C ou rt's opin ion in Landgraf stresses repeatedly th e con cern th at p rivate righ ts n ot be retroactively burden ed. See
Landgraf, 511 U .S . at 265 ("[e]lem en tary con sideration s of fairn ess dictate th at in d ivid u als sh ould h ave an
o p p o rtu n ity to kn ow w h at the law is an d to con form th eir con duct accordin gly" (em ph asis added)), 282 ("[t]h e
in troduction of a righ t to com pensatory dam ages is also th e type of legal ch ange th at w ould h ave an im pact on
p rivate p artie s ' plan n in g" (em ph asis added)); see also id. at 266, 271, 272, 284.


          4
           66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2002) ("Duty to Assist" regulations, amending 38 C.F.R. §§ 3.102,
3.156, 3.159, 3.326).

          5
            Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (holding that "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 mo[re] favorable to [the] appellant should . . . apply unless Congress provided otherwise or permitted the
[Secretary] to do otherwise and the Secretary did so" (emphasis added)).

                                                                3
nor the BVA had issued a decision that had become final and nonappealable before that date6. (I
note that this also raises the questions whether Karnas remains good law after Landgraf, Dyment,
and Bernklau, and whether a claim is "finally decided" by the BVA when it has been appealed to this
Court.7) Furthermore, briefing should also be obtained on whether, if the VCAA were construed not
to authorize retroactive application of its provisions (other than in section 7, which expressly
provides for retroactivity as to section 4), the Secretary, nevertheless, would have the authority to
continue to apply the August 29, 2001, regulations – and, if so, whether the Secretary would have
the authority to do so retroactively as those regulations provide8 – under non-VCAA authority in
effect on the date of issuance. See, e.g., 38 U.S.C. §§ 501, 5103(a), 7722(d) (1994 & Supp. V 1999).

        In Matlock v. Principi, a panel of this Court very recently issued a briefing order regarding
these Dyment, Bernklau, Karnas, and Landgraf issues, which arose in a case where the BVA
decision postdated the enactment of the VCAA and preceded the promulgation of the August 29,
2001, regulations.9 Additionally, in a case similar to the instant case insofar as it involves the appeal
of a pre-VCAA BVA decision, I recently dissented from a panel decision to declare the VCAA
inapplicable, and to reject briefing on the application of the August 29, 2001, regulations, to such


         6
             See 38 U .S .C . §§ 7104(b ), 7 105(c), 7 266; 66 Fed. Reg. at 45,620 (providing, except as to three provisions
relating to reopening of claims, that "the provisions of this final rule apply to any claim for benefits received by VA on
or after November 9, 2000, as well as to any claim filed before that date but not yet decided by VA as of that date"); G.C.
Prec. 11-00, supra note 2 (holding VCAA generally applicable to "claims filed before [November 9, 2000,] but not
finally decided as of that date").

         7
            In this regard, the Court recently stated, in Teten II: "[A]t the time of [Mr. Teten's] death, the BVA decision
had not become final, because the time for him to file a timely appeal to this Court under 38 U.S.C. § 7266(a) and Rosler
[v. Derwinski, 1 Vet.App. 241, 249 (1991),] had not expired. From that date of death in July 1991 to the Court's January
1995 order vacating that BVA decision, the denial of the appellant's claim remained in a state of nonfinality." Teten v.
Principi, 16 Vet.App. 112, 116 (2002).

         8
             See supra n ote 6.
         9
             T h e b riefin g ord er in Matlock stated th e issues as follow s:

                                        (1) D oes section 3(a) of th e V C A A apply to th e
                              claim s involved in th is case? See Karnas[, supra n ote 5.]

                                         (2) D o th e revised V A adjud ication regulation s, see
                              66 F ed . R eg. 45,6 30-32 (A u g. 29, 2001) (to b e codified at
                              38 C .F.R . pt. 3 ) ("D uty to A ssist" regulation s), apply to th e
                              claim s involved in th is case an d, if so, un der w h at auth ority
                              w ere th o se regu lations p rom u lgated?

                                        (3) If n e ithe r V C A A section 3(a) nor the revised V A
                              ad judication regulation s apply to th e claim s involved in th is
                              case, did V A h ave a duty to assist or to n otify in regard to
                              th ose claim s?

Matlock v. Principi, _ _ V et.A pp. _ _ _ , _ _ _ , N o. 01-688, 2002 W L 1357301 at *1 (Jun e 19, 2002) (per curiam order).

                                                                4
an appeal.10 It is true that the panel to which this case is being returned could – and, I hope, will –
decide to grant the appellant's June 21, 2002, motion to provide supplemental briefing. However,
because I believe that the questions raised by the appellant and by my statement here are most
appropriately decided by the full Court, I voted to keep this case at the en banc level so that the full
Court would receive briefing by the parties to this case as to the applicability of the VCAA and the
effect of the issuance of the August 29, 2001, regulations in view of the Federal Circuit's opinions
in Bernklau and Dyment, both supra, and of this Court's opinions in Holliday and/or Karnas, both
supra, on a case appealing a pre-VCAA-enactment BVA decision.




         10
              J.B. Stephens v. Principi, _ _ V et.A pp. __, N o. 00-1516, 2002 W L _____ (July 10, 2002) (S tein berg, J.,
con currin g in part an d dissen tin g in part).

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