Veteranclaims’s Blog

April 5, 2009

EAJA, veterans can file for EAJA awards

Filed under: EAJA; March v. Brown; pro se; litigation expenses; — veteranclaims @ 12:33 am

The first instance we found of a veterans being able to apply and potentially receive EAJA award was this January 5, 1995 JUDICIAL REVIEW CONFERENCE CALL document, see below.

March v. Brown was also cited on January 16, 2007, in Apollo, Sr. v. Nicholson, MEMORANDUM DECISION by SCHOELEN, Judge. Judge Schoelen goes on to give an excellent discussion of what can be awarded to pro se veterans that prevail, see that case for full details.

Citation:
March v. Brown, 7 Vet.App. 163, 166-70 (1994) (holding that a pro se nonattorney litigant is eligible to reimbursement of litigation expenses pursuant to 28 U.S.C. 2412(d)(1)(A)).

March v. Brown, No. 91-1104 (U.S. Ct. Vet. App. Nov. 18, 1994) – In this case, it was held that attorney fees claimed under the Equal Access to Justice Act (EAJA) by a non-attorney claimant who represented himself or herself before the Court must be denied. However, the Court noted that the statute, 28 U.S.C. § 2412(d), does not prohibit the payment of expenses of litigation to a non-attorney practitioner. Therefore, an appellant who represented himself or herself before the Court may be awarded EAJA expenses.
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JUDICIAL REVIEW CONFERENCE CALL
January 5, 1995

Page Topic

1 Opening Remarks
ARMS Update
Electronic Bulletin Board

2 Gardner Update
Appellate Procedures

3 REPS Benefits
Decision Assessment Package

4 Jones v. Brown, No. 93-315
Martin v. Brown, No. 92-141

5 Hennessey v. Brown, No. 92-1233
McGraw v. Brown, No. 93-27
Reyes v. Brown, No. 93-996
Elcyzyn v. Brown, No. 91-1664
Aronson v. Brown, No. 92-561

6 March v. Brown, No. 91-1104
Olney v. Brown, No. 92-783
Jennings/Buckley v. Brown, Nos. 91-1474 and 92-866
Massey v. Brown, No. 93-135

7 Scott v. Brown, No. 93-288
O.G.C. Prec. 18-94
O.G.C. Advisory 29-94
Questions and Answers between various RO’s and CO.

8-12 Questions and Answers continued

13 ADDENDUM I (Retroactive Effect of Court Decisions)

14 ADDENDUM II (VBA Bulletin Board Instructions)

JUDICIAL REVIEW CONFERENCE CALL
January 5, 1995

Opening Remarks

Good morning. Right after the general COVA conference call this morning we will be conducting an attorney fee coordinators hotline. We ask that all interested parties remain in attendance, because we’ll immediately move from this call to that one. I’d like to mention that you may have noticed that our decision assessment document package contents have changed, in fact, this last DAD package was bigger than most. We now send DADs for every precedent decision issued by the Court of Veterans Appeals, even if we do not recommend a change to our policies or procedures. We’ll try to keep those DADs which recommend a change at the beginning of the package for easy reference.

ARMS Update

We’ve had some questions about what information will be available on CD ROM, through ARMS, regarding documents relating to the Veterans’ Court. The CD ROM disc will contain a directory heading entitled COVA. Included under COVA will be three subdirectories, which are: DADS (this subcategory contains decision assessment documents); Decisions (this subcategory contains COVA precedent decisions); and Index, (this subcategory contains an index of decisions by topic, for example, PTSD, well-grounded claims, or IU). The February disc will contain COVA decisions for 1990, 1991 and 1992; the March disc will contain decisions for 1993,1994 and 1995. Most DADS will be on the February disc. In fact, all DADS from 1993 and 1994 should be on the disc, and the balance will be on the March update.

Electronic Bulletin Board

Our DADs and hotline transcripts are now available on the VBA Bulletin Board. COVA information is available by selecting the file entitled Veterans’ Court Documents. I have been adding documents to the bulletin board as they are approved by C&P Service so that they are available to regional offices and service organizations quickly, this next month they should be available on the bulletin board before or at the same time as the DAD package goes out to you by E-mail. You may be familiar with the bulletin board, as it is currently used to retrieve financial data from VBA’s Office of Resource Management. The phone number for this bulletin board is (202) 275-5286 and it is maintained by the Office of Resource Management. They are available for help with all technical questions. I will attach basic instructions for using the bulletin board as an addendum to this hotline.

Gardner Update

The General Counsel issued a memorandum dated December 27, 1994, to the Under Secretary for Benefits which provides guidance under which we may begin awarding compensation under section 1151. We are currently developing procedural instructions which will be contained in a circular and sent out to you shortly. In the memorandum the General Counsel noted that “compensation is payable if an injury resulting from VA treatment causes additional disability or death and the injury is not a risk of which the veteran was informed before consenting to undergo treatment. For example:

A veteran is informed of three of the known risks of a certain surgical procedure before consenting to it. As a result of the surgery, the veteran suffers a fourth and different type of complication which he had not been informed was a risk of the procedure. Compensation would be payable for resulting disability or death.

A medical procedure is performed on a veteran without his or her consent. Compensation would be payable for resulting disability or death.”

The procedures being developed will provide that if a claim cannot be allowed it will be stayed pending the issuance of an opinion by the Attorney General, which has been requested by the Secretary, and revision of the invalidated portion of the regulation.

We have been asked if the cases you have listed on the Gardner logs should be reported on the weekly workload report (RCS 20-0207). The answer is: Not yet. When we send out the processing guidelines, then these cases should be shown as rating cases pending to be worked.

Appellate Procedures

We received a question from the field concerning a BVA remand which we would like to share with you. On appeal, the Board determined that additional evidence was needed. The Board also determined that the issue of clear and unmistakable error (CUE) in a rating decision had been reasonably raised by the record, although it had not been certified for appellate review. The Board remanded the appeal to obtain additional information and to consider the issue of CUE in the rating decision. The regional office prepared a rating decision which failed to find CUE in the prior decision. The veteran was notified of the decision through a Supplemental Statement of the Case, which added the issue of CUE to the appeal, and returned the records to the BVA for further review. The Board again remanded the appeal after having determined that the RO did not inform the veteran of his appellate rights with regard to the CUE determination. Basically, the Board does not have jurisdiction over an issue unless the RO has made a decision, informed the claimant of the decision, and receives a Notice of Disagreement with the decision. Therefore, you may not add an unrelated issue to an issue, or issues, previously on appeal unless these procedures are followed. For further information concerning this, please see O.G.C. Precedent 16-92 (7/24/92). And now I’ll turn this over to Procedures.

Procedures Staff:
REPS Benefits

In Skinner v. Brown, the United States Court of Appeals for the Federal Circuit affirmed the Court’s decision, holding that the REPS statute imposes no time restrictions on filing claims and that it mandates that a REPS claimant receive benefits for each month that he or she is eligible, regardless of when application is made. Recently, VA Form 21-0536, REPS Benefits Fact Sheet, was released to the field with time limit information which is not consistent with Skinner. Form 21-0536 will be revised in the near future to reflect this decision. Thank you.

C&P Service:

Next we will talk about the decision assessment package.

Decision Assessment Package

In this month’s assessment package, we have included all assessment documents approved since the last package. The assessment package E-mailed December 30, 1994, contained thirteen Court cases and two General Counsel precedent opinions. These cases are:

Wick v. Brown, No. 7017 (Fed. Cir. November 7, 1994) – This decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) addressed the question of the jurisdiction of the Court of Veterans Appeals (CVA) to issue decisions on matters not addressed in a BVA decision. The Federal Circuit held that a Board of Veterans’ Appeals decision is a statutory prerequisite before the Court of Veterans Appeals has jurisdiction to consider an appeal. Because no BVA decision had been issued concerning the payment of attorney fees from past-due benefits, the Wick decision by CVA was reversed. We will discuss the implications of this decision with the attorney fee coordinators during the hotline call that will be held later this morning.

Jones v. Brown, No. 93-315 (U.S. Ct. Vet. App. Nov. 14, 1994) – In this case, the veteran claimed service connection for glaucoma as secondary to his service-connected blepharoconjunctivitis. In support of the claim, he submitted statements from two doctors diagnosing him with glaucoma, but not relating the glaucoma to his service-connected disability. The claim was denied as not well grounded. He then submitted a claim for increase. In support of this claim, he submitted a medical report indicating that he suffered from glaucoma. It did not indicate that he continued to suffer from blepharoconjunctivitis or that the glaucoma was in any way related to the service-connected disability. The Court, citing its decision in Proscelle v. Derwinski, 2 Vet. App. 629 (1992) which held that the well-groundedness requirement is met when a claimant indicates that there has been an increase in disability, held that the situation in this case is different than that in Proscelle. Here an increase was claimed on the basis that the veteran’s service-connected disability had caused a new disease. The Court held that where entitlement to an increase is based on a claimed cause and effect relationship between two different disease entities, a claimant, even though service-connected for one of the disease entities, must provide medical evidence of such relationship.

Martin v. Brown, No. 92-141 (U.S. Ct. Vet. App. Nov. 29, 1994) – On 3/3/94, the Court affirmed a decision by the Board of Veterans Appeals (BVA) that accrued benefits were countable income in determining entitlement to death pension benefits. Appellant filed a motion for reconsideration which was granted. Action was stayed pending the en banc decision of the Court in Zevalkink v. Brown, 6 Vet. App. 483 (1994) (en banc). That case was decided 6/2/94, and the Court has now vacated its 3/3/94, opinion and issued this opinion in its stead. In Zevalkink, the Court held that “the substance of the survivor’s claim for accrued benefits is purely derivative from any benefit to which the veteran might have been ‘entitled’ at his death.” Zevalkink, 6 Vet. App. at 489-90. In this case, the lump-sum payment to the appellant in accrued benefits represented one year’s worth of the improved pension benefits to which the veteran was entitled at death. The appellant argued that since an accrued benefit is derivative in nature the accrued-benefit payment in this case was no more than payment of the pension that VA owed to the veteran under 38 U.S.C. § 1521 at his death. Thus, the benefit was paid under chapter 15, which excludes pension payments as countable income, and should be excluded as countable annual income for death pension purposes. The Court agreed and reversed the decision of the BVA. 38 C.F.R. § 3.272(c) and M21-1, Part IV, Ch. 16 will be amended to reflect this decision.

Hennessey v. Brown, No. 92-1233 (U.S. Ct. Vet. App. Nov. 15, 1994) – The Court remanded this case for the BVA to make factual findings concerning the meanings of two phrases – “in the near future” and “lengthy waiting period” as they pertain to a claim for payment or reimbursement of the costs of medical services provided at a private hospital under the provisions of 38 U.S.C. § 1728(a)(2)(C) and 38 C.F.R. § 17.80(a)(3). Both phrases were noted in the veteran’s VA treatment records and the Court held that their meanings impacted on his eligibility for reimbursement of those medical costs.

McGraw v. Brown, No. 93-27 (U.S. Ct. Vet. App. Nov. 15, 1994) – Contrary to the finding of the BVA, the Court held that the veteran had submitted new and material evidence sufficient to reopen his claim for service-connection for a neurological condition. However, the Court concluded that the BVA actually denied the appeal on its merits and then affirmed the BVA decision. The Court also found that the BVA’s denial of service-connection for arthritis was plausible based on the evidence of records.

Reyes v. Brown, No. 93-996 (U.S. Ct. Vet. App. Oct. 21, 1994) – The appellant’s right to VA benefits had previously been forfeited under the provisions of 38 U.S.C. § 6103(a). The Court held that the appellant would have had to produce new and material evidence bearing directly on whether she had acted in a false or fraudulent manner in her efforts to restore her DIC benefits. Since she had not produced such evidence, the Court affirmed BVA’s denial.

Elcyzyn v. Brown, No. 91-1664 (U.S. Ct. Vet. App. Nov. 21, 1994) – This case dealt with the issue of whether or not EAJA fees should be paid. Once the Court determined that such fees were payable, the balance of the decision covered the calculation of the allowable fees.

Aronson v. Brown, No. 92-561 (U.S. Ct. Vet. App. Nov. 16, 1994) – In this case, appellant filed a motion for extraordinary relief based on VA’s failure to provide him with an examination. Judge Ivers denied the motion. Appellant then requested that Judge Ivers, as VA’s former General Counsel, disqualify himself from consideration of the case. Judge Ivers denied the request and a three judge panel determined that the Court did not have jurisdiction to review the denial. On appeal to the Court of Appeals for the Federal Circuit, the Federal Circuit determined that when a judge’s qualification has been challenged, the Court “has not only the authority but also the responsibility to undertake such review.” On remand, the Court determined that a VA examination had been conducted prior to Judge Ivers’ decision not to disqualify himself, therefore, there remained nothing to act on within the jurisdiction of the Court.

March v. Brown, No. 91-1104 (U.S. Ct. Vet. App. Nov. 18, 1994) – In this case, it was held that attorney fees claimed under the Equal Access to Justice Act (EAJA) by a non-attorney claimant who represented himself or herself before the Court must be denied. However, the Court noted that the statute, 28 U.S.C. § 2412(d), does not prohibit the payment of expenses of litigation to a non-attorney practitioner. Therefore, an appellant who represented himself or herself before the Court may be awarded EAJA expenses.

Olney v. Brown, No. 92-783 (U.S. Ct. Vet. App. Nov. 17, 1994) – Service connection for carcinoma of the bladder was denied by the regional office and by the Board of Veterans Appeals (BVA). On appeal to the Court, a joint motion for remand to require the BVA to comply with the reasonable notice requirements contained in Thurber v. Brown, 5 Vet. App. 119 (1993) was granted. A claim for attorney fees under the Equal Access to Justice Act (EAJA) was filed. The Court determined that the Thurber decision brought about the remand, and that, prior to Thurber, it was VA policy, endorsed by certain decisions of the Court, to rely on medical treatises in BVA decisions without notifying the claimant in advance of its intention to do so. The Court thus concluded that the position of the government was substantially justified and denied the EAJA application for attorney fees and expenses.

Jennings/Buckley v. Brown, Nos. 91-1474 and 92-866 (U.S. Ct. Vet. App. Dec. 5, 1994) – The Court consolidated the Jennings and Buckley appeals which involved entitlement to Equal Access to Justice (EAJA) fees. Since EAJA applications had not been filed within 30 days of judgment in either case, the Court’s timeliness standard was not met and EAJA fees were denied.

Massey v. Brown, No. 93-135 (U.S. Ct. Vet. App. Dec. 6, 1994) – The Massey case was remanded due to inadequate reasons or bases as various normal mental status findings had been cited without explaining why specific schedular criteria for a 30% rating were not met. The Court also reversed one inaccurate finding and required review of historical records and symptoms by the VA examiner if a new examination is ordered.

Scott v. Brown, No. 93-288 (U.S. Ct. Vet. App. Nov. 21, 1994) – The Court held that there is no legal entitlement to an extension of the one-year time limit for the filing of a Notice of Disagreement (NOD). Further, once VA had furnished notification of a decision along with information concerning the time frame for, and instructions on how, to file an NOD, the VA had fulfilled its obligations. Therefore, there is no further duty to assist the veteran in the preparation and presentation of his claim.

O.G.C. Prec. 18-94. We discussed this opinion during last month’s hotline. Basically, the General Counsel held that characterization of an individual’s service at the United States Air Force Academy Preparatory School (USAFAPS) for purposes of entitlement to veterans’ benefits depends upon the status in which the individual enters the USAFAPS. Service by a reservist called to active duty for the sole purpose of attending the USAFAPS constitutes “active duty for training” and thus does not meet the definition of “active duty.” This includes persons who are enlisted directly from civilian life or from the Air National Guard for the sole purpose of attending the USAFAPS, as well as members of reserve components who are called to active duty for this purpose. Service by an enlisted active duty servicemember who is reassigned to the USAFAPS without a release from active duty constitutes a continuation of the servicemember’s “active duty.” We have requested a separate General Counsel opinion concerning the applicability of this opinion to the other services’ preparatory schools.

O.G.C. Advisory 29-94 (07/01/94) – The question addressed by the General Counsel was whether or not the Court’s decision in Van Dee v. Derwinski, No. 90-253 (U.S. Ct. Vet. App. Jul 26, 1991) impacted on O.G.C. Precedent 13-92. Because the cited case was a single-judge decision, it has no precedential weight and is not binding on VA with regard to any other case. Therefore, O.G.C. Prec. 13-92 remains in effect.

Are there any questions concerning any of these assessments?

Little Rock:

I have a question on the Martin v. Brown case. The effective date of this decision is November 29, 1994, so that means that any decision made regarding accrued benefits for income purposes will only be effective from that date. Is that correct?

C&P Service:

You need to be consistent with what General Counsel held in their Precedent Opinions 9 and 10-94, I believe.

General Counsel:

Essentially, what we said in the opinions is that if a case is still open on review when a precedent decision is issued, that is, if a claim is still pending and has not been finally denied, then you apply the Court precedent which in this case is Martin. If a case was denied, for example in 1974, and a veteran comes in now, you wouldn’t disturb that earlier decision based on Martin.

Little Rock RO:

We’re also talking about any final decision that was made on November 28, 1994, involving counting accrued benefits as income. Correct?

C&P Service:

Right. If the decision was made on the 28th you wouldn’t disturb that decision. They can file a new claim now.

Little Rock RO:

Thank you.

General Counsel:

If you made a decision the day before Martin came down, and that individual appeals it to the Board of Veterans Appeals, the Board could then apply Martin because that case is still open on review. If they can come back to you for reconsideration, you can apply Martin as well, and in this case grant the benefit.

Little Rock RO:

Does it have to go that far? Why don’t you just stop it at the first level?

General Counsel:

I am not sure I understand the question. If you are aware of such a case that you have denied, I don’t think there’s anything to prohibit your reopening it on your own motion and conferring the benefit. You don’t have to sit back and wait. What I am saying is if the decision had become final, either because it was not appealed to the Board within the year or if the Board had entered a final decision, we don’t disturb those and we don’t re-open those based on Martin. But, if a case is still pending, that is, if the appeal has not been exhausted in that claim or if there is not any failure to appeal in a timely manner, then we can and should apply Martin.

Little Rock RO:

This is Little Rock again. The way I understand you to say that if the decision is not final, meaning that we can go back to a year of applying the liberalizing regulation, we can go back earlier up to November 29, 1993, on any case where we counted accrued benefits as income.

General Counsel:

All we’re talking about here is whether this Court precedent in Martin affects previously decided claims. If the claim had been previously decided and that decision is final, that is, it was not appealed within a year or the Board of Veterans Appeals affirmed that claim decision, then you don’t apply Martin to that individual situation. If the claim is still open, that is, either you’ve not yet decided it or you’ve decided it but the appeal period has not run, then it is proper to apply the more liberal Court precedent to that claim.

C&P Service:

We can either attach an addendum to this for some clarification, maybe give references to that GC opinion that the General Counsel representative was talking about. That would probably be helpful.

Little Rock RO:

We’ve already got Service Representatives coming to us wanting to apply this retroactively so we do need to make sure that we know the exact effective date and how far we can go back with this issue.

Columbia RO:

If there is not a finally adjudicated claim, are you saying that we can go back from the effective date of the claim not withstanding the fact it might be prior to a 11/29/94?

General Counsel:

That’s correct.

Columbia RO:

We can go back two years if the claim is still running, right?

General Counsel:

That’s correct; exactly right.

C&P Service:

Those are GC opinions that we’ve already discussed on the hotine, so we’ll reference them so that you can go back and look them up for reference. Any other questions about any other cases or anything said on the hotline?

Manchester RO:

I have a question on the Martin v. Brown case, too. The question is: does this decision mean that all accrued benefits are not countable income or just those accrued benefits which were payable under pension rules?

C&P Service:

Yes. It is just accrued benefits that have been paid as pension under Chapter 15.

Manchester:

Thank you.

Providence RO:

I have a question about your remarks on appellate procedures. We have a remand from BVA on a clear and unmistakable error issue. The basis for the remand was that the issue was inextricably intertwined with the appeal and yet they told us to go ahead and issue a statement of the case and so forth rather than a supplemental. This would not seem to be the same kind of thing which you were talking about and that we couldn’t add an unrelated issue to the appeal. If there saying it is inextricability intertwined why can’t that be added to the appeal?.

C&P Service:

You never had developed it at all? I mean, it was considered a brand new claim by the BVA?

Providence RO:

Actually, they said we should make a decision on the issue of clear and unmistakable error and communicate it to the veteran and then await a notice of disagreement.

C&P Service:

Right. That is exactly what I was talking about. That when you get them back from the BVA, and it is saying this is a claim that you haven’t considered prior to now, then you have to issue a decision; wait for a NOD; and the whole appellate process has to proceed. You can’t just deal with it in the statement of the case and send it forward like that.

Providence RO:

Doesn’t this seem sort of cumbersome because if we don’t get a notice of disagreement on that issue we’re still supposed to send the appeal back to the BVA on the other issue, and then the veteran will probably eventually file an NOD.

C&P Service:

That’s the way you have to handle it. Until you get that NOD you can’t proceed with the appellate process.

Providence RO:

Okay, thank you.

Buffalo RO:

We’ve seen cases from the BVA where the issue was well groundedness of an issue, and we were told in the remand that if we found it well grounded and continued to deny it on another basis, that we should issue a supplemental statement of the case, which seems to be counter to what you are saying.

C&P Service:

I think I have the answer to that. What the difference here is, is that the well groundedness issue is really a sub-issue. Veterans come in and claim benefits rather than well groundedness or stages of the claims process. So for the purposes of applying the guidance Jean gave you, you should define an issue as a benefit issue rather than a stage of claims processing.

Is that clear?

Buffalo RO:

Yes. Thanks.

C&P Service:

Any other questions. Okay please don’t hang up. Put your phones on mute and then those folks that would like to leave at this time can leave, but all the attorney-fee coordinators, or anybody interested in attorney fees, please stay and the next COVA Conference Call will be February 2, 1995, at 11:00 EST. So I will give you all a couple of minutes to shift around and we’ll do that here too.
Addendum I

RETROACTIVE EFFECT OF COURT DECISIONS

The General Counsel has issued two precedent opinions concerning the retroactive effect of decisions of the United States Court of Veterans Appeals (the Court). In O.G.C. Prec. 9-94 (3/25/94), the General Counsel held that decisions of the Court which have invalidated VA regulations or statutory or regulatory interpretations do not have retroactive effect in relation to prior “final” adjudications of claims, but should be given retroactive effect as they relate to claims still “pending.” The term “pending” includes decisions which have not become final because the appellate period has not expired. The assessment of this opinion was sent to regional offices in the DAD package dated April 4, 1994, and was discussed during the April 7, 1994, Judicial Review hotline.

On 4/25/94, the General Counsel issued O.G.C. Prec. 10-94. In this opinion, the General Counsel held that an effective date may generally be no earlier than dates of claims, however, if an award is predicated upon an administrative issue, such as an amendment to a regulation prompted by a judicial precedent, the provisions of 38 U.S.C. § 5110(g), as promulgated in 38 C.F.R. § 3.114(a), may be applied. The General Counsel concluded that section 3.114(a) does not apply to awards of benefits based solely upon precedential decisions of courts of law. The assessment of this decision was included in the DAD package furnished regional offices on July 5, 1994, and was discussed during the Judicial Review hotline on July 7, 1994.

Please refer to the transcript of the July 7, 1994, hotline for examples of effective dates concerning the application or nonapplication of section 3.114(a). These examples are equally applicable to the Martin case, as well other decisions of the Court. If there are questions concerning the appropriate effective date in a specific case, please call any member of the Judicial Review Staff at 202-273-7230.
Addendum II

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