Veteranclaims’s Blog

April 15, 2009

Regulation changes and Karnas v. Derwinski, 1 Vet.App. 308, 313(1991)

Filed under: Regulation changes; Karnas; — veteranclaims @ 10:10 pm

The Veterans Court has held that “where the law or regulation changes after a claim has been filed but before the . . . judicial appeal process has been concluded, the version mo[re] favorable to the appellant should and we so hold will apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so.” Karnas v. Derwinski, 1 Vet.App. 308, 313(1991). The Veterans Court notes that Karnas was overruled by the United States Court of Appeals for the Federal Circuit in Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003), “to the extent [that it] conflict[s] with the Supreme Court’s and our binding authority.” However, the holding of Kuzma was directed at the retroactive application of statutes and left open the question of Karnas’ continuing validity as to regulation changes. However, the Court need not address the current validity of Karnas as applied to regulations, for the Secretary has explicitly limited application of the revised _ 3.156(a) to only those claims to reopen that were filed after August 29, 2001. 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001); see also Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 1334, 1349-53 (Fed.Cir. 2003)

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