JUDICIAL REVIEW CONFERENCE CALL INDEX

December 1, 1994

[Page]{.underline} [Topic]{.underline}

1 Opening Remarks

Clear and Unmistakable Error

2 [Wick v. Brown]{.underline}

[Caffrey v. Brown]{.underline}

Oseo/DeLandicho Dismissals

3 Attorney Fee Coordinators

Decision Assessment Package

4 Decision Assessment Package (Cont.)

[Johnson v. Brown]{.underline}

[O.G.C. Precedent 19-94]{.underline}

[O.G.C. Precedent 18-94]{.underline}

5 Other Precedent Opinions

[Brillo v. Brown]{.underline}

[Grovhoug v. Brown]{.underline}

[Parker v. Brown]{.underline}

[Webb v. Brown]{.underline}

6 Other Precedent Opinions (Cont.)

[Gregory v. Brown]{.underline}

Closing Remarks

7 Addendum I

SUBCHAPTER XII. BVA Remands

8 Addendum II (decision assessment documents not included

in DAD package)

**JUDICIAL REVIEW CONFERENCE CALL**

December 1, 1994

Good morning everyone. I wanted to offer a couple of the initial
comments before we go ahead with the normal monthly call. I wanted to
bring two issues to your attention that are part of Public Law 103-446,
the Veterans Benefits Improvements Act of 1994.

The First requires that the Secretary take such actions as may be
necessary to provide for the expeditious treatment of any claim that has
been remanded by the Board of Veterans Appeals or the Court of Veterans
Appeals. The second provision has to do with the authority provided to
the Board to prescreen appeals out of docket order.

You know of our commitment to process remands in an expeditious fashion.
We emphasized the importance of this in a hotline call last May. These
cases represent some of the oldest claims that we have pending. We
amended M21-1, Part IV, paragraph 8.45b as part of change 64 to reflect
the importance of this. The paper copy of this change is not yet
available in the field, but this should be in ARMS, as part of the
January 1 update. We will include the exact language of the paragraph as
an attachment to the notes of this call.

Now that the Board has authority to prescreen appeals to ensure that the
record is adequate for decisional purposes, we can expect a higher rate
of remands in the next several months as the Board conducts case reviews
for the purpose of determining the adequacy of the record before it. We
in the Service are conducting a remand case review which began on
Monday. The cases BVA is remanding are based on decisions issued in
1992. Due to the age of these cases, I urge your careful and timely
review of each case. Thank you.

**Clear and Unmistakable Error**

Good morning. We\'ve been getting questions on what to do with the cases
which allege clear and unmistakable error in a prior regional office
decision which has been affirmed by a BVA decision. In August 1994, in
the [Smith]{.underline} case the Federal Circuit held that CUE review
authority in section 3.105(a) relates only to review of regional office
decisions and not to those of the BVA. In an all-station letter sent out
in September (VACO letter 4-93), we asked you to continue the stay on
these types of cases, because of the possibility that litigation could
continue. We\'ll be sending out an instruction letter within the next
two weeks advising how to handle these types of cases. In the meantime
if you have questions, please contact me or any of my staff for
guidance.

**[Wick v. Brown]{.underline}**

This next case, which was decided by the Federal Circuit, will be of
particular interest to you if your office is one which paid out 100% of
past due benefits to a claimant despite the fact that there was a fee
agreement of record which appeared to request that a portion of the past
due benefits be paid directly to an attorney. On November 7, 1994, the
Federal Circuit reversed a decision of the CVA ordering the Secretary to
pay attorney fees. The CVA case resulted from a petition filed by
attorney Bruce Tyler Wick with the CVA requesting that the CVA order the
Secretary to pay his attorney fees. Mr. Wick filed this petition after a
VA regional office failed to withhold attorney fees from past-due
benefits and Mr. Wick was unable to collect fees from his client. The
Federal Circuit found that the CVA had no jurisdiction or authority to
review Mr. Wick\'s petition. If your office has one or more cases which
are affected by the [Wick]{.underline} decision, you will be receiving
an instruction letter from us with suggested language to send the
attorneys involved. This suggested language advises the attorneys about
the [Wick]{.underline} decision.

**[Caffrey v. Brown]{.underline}**

Our assessment of the Court\'s decision in **[Caffrey v.
Brown]{.underline}**, 6 Vet. App. 377 (1994), was included in the May
DAD package and was discussed during the June hotline.
**[Caffrey]{.underline}** concerned allegations of clear and
unmistakable error. Among other things, the Court held that a duty to
assist deficiency could not form a basis for a clear and unmistakable
error claim, since such a breach creates only an incomplete record
rather than an incorrect record. Appellant subsequently filed a motion
for review by the full Court. In an order dated October 25, 1994, the
Court denied the motion without comment, thus permitting to stand its
conclusion that a failure in the duty to assist cannot form the basis
for a clear and unmistakable error claim.

**Oseo/DeLandicho Dismissals**

During our last two conference calls, we discussed the Court\'s decision
in **[De Landicho (90-1150) and Oseo (92-90) v. Brown]{.underline}.**
These were the two cases the Court dismissed because the veterans died
while their appeals were pending at the Court. Since that decision, the
Court has been issuing orders dismissing cases in which the appellant
has died. The Court is very concerned about any survivors\' potential
claims for accrued benefits. To preserve such claims, given the one-year
limitation in the accrued-benefits statute and the often lengthy delays
in litigation, the Court is fixing upon any communication to it,
requesting substitution of a party, as constituting an \"informal
claim\" for accrued benefits. It is extremely important for regional
offices to follow through on any such dismissal by the Court.

When the Appellate Litigation Staff returns the claims folder for one of
these cases to your office, a copy of the Court\'s order dismissing the
case will be in the file. Please have your office review VA records to
determine if an accrued benefits claim has already been filed. If not,
regional offices must furnish the appropriate forms to potential
accrued-benefits claimants. If you note that a party has been
substituted for a deceased appellant, please see that the substituted
party is sent an application for accrued benefits. Cover letters must
clearly indicate that the one-year time limit for the filing of a formal
application for such benefits runs from the date of that letter.

**Attorney Fee Coordinators**

On last month\'s conference call, I announced that each regional office
would be asked to appoint one employee and an alternate who will be
responsible for all attorney fee cases within that office. Offices will
also have the option of appointing one unit as responsible for attorney
fee cases. An interim instruction letter which details the
responsibilities for the attorney fee coordinators is currently in
concurrence. We anticipate release of that letter within the next few
days. It is very important that regional offices notify us of the names
of the coordinators as quickly as possible after receipt of the letter.
I also want to announce at this time that we are planning a conference
call for all attorney fee coordinators on January 5, 1995. This
conference call will follow our regular call which begins at 11:00 a.m.
(Eastern Standard Time). We request that all Adjudication Officers, any
of his or her staff involved with attorney fees issues and all attorney
coordinators including all members of a designated unit attend that
call. Please be prepared to discuss any questions you or your employees
may have regarding the contents of the attorney fee circular as well as
all other instructions that have been disseminated through interim
instruction letters and our Judicial Review Conference calls. If there
is a specific area you want to be sure we address during that conference
call, please E-mail me your questions before the 23rd of this month.

**Decision Assessment Package**

The Decision Assessment Package contained one decision made by the Court
last month.

**[Johnson v. Brown]{.underline}**, U.S. Vet. App. 93-89 (9/28/94). The
**[Johnson]{.underline}** appeal involved entitlement to a total rating
for service-connected psychiatric disorder and entitlement to a total
rating based on individual unemployability.

An increase had been denied under 38 C.F.R. § 4.132 Diagnostic Code 9411
because the evidence did not show totally incapacitating symptoms
bordering on gross repudiation of reality. On appeal to the Court,
however, the Department clarified that there are three separate ways to
establish entitlement under the diagnostic code, and that a total rating
would be warranted if any one of them were met. For example, a total
rating would be warranted if there is demonstrable inability to obtain
or retain employment due to a psychiatric disorder even if symptoms do
not result in social isolation or border on gross repudiation of
reality. The Court endorsed this interpretation and remanded the appeal
for readjudication under each of the schedular standards.

In addition, the Department had explained that Section 4.16(c) simply
refers rating personnel to the diagnostic code and is not considered to
be a limiting provision. Sometimes special monthly compensation may be
warranted if a total rating is assigned for psychiatric disability under
the Diagnostic code rather than Section 4.16(a), and subsection (c) does
not preclude such a rating when there are compensable medical disorders.

Once a determination is made that a veteran is able to obtain or retain
employment despite a service-connected psychiatric disorder, there would
be no basis for a contrary finding under Section 4.16(c), but a total
rating may be warranted under subsections (a) or (b) based on the impact
of other service-connected disabilities.

**[O.G.C. PRECEDENT 19-94 (10/12/94)]{.underline}** - This opinion
addressed the question of payment of attorney fees in cases where the
attorney is hired by a claimant within one year of a BVA decision and
the attorney assisted the claimant in filing a \"repeat claim\" at the
regional office level. A \"repeat claim\" is a different claim based, at
least in part, upon different facts. The General Counsel has held that
an attorney would have potential entitlement to attorney fees from
past-due benefits. For example, the BVA upholds the denial of pension
and the claimant hires an attorney nine months after that decision.
Since it was too late to file an appeal with the Court, the attorney
assisted the claimant in obtaining and submitting additional medical
evidence to the regional office as a \"new\" or \"repeat claim\". If the
regional office or BVA or the Court should grant pension benefits, the
attorney may be paid attorney fees from the past-due benefits.

**[O.G.C. PRECEDENT 18-94 (10/3/94)]{.underline}**. In this opinion, 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 an individual who attends the USAFAPS as a reservist called
to active duty for the sole purpose of attending the USAFAPS constitutes
\"active duty for training\" and thus is not within the definition of
\"active duty\" under 38 U.S.C. § 101(21)(A). 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.\"

**Other Precedent Decisions**

There were other Precedent decisions issued by the Court during the past
month which were not contained in the Decision Assessments Document
Package. One of these cases is:

**[Brillo v. Brown]{.underline}**, U.S. Vet. App. 93-462 (10/7/94). The
Court affirmed VA disallowance of additional benefits for a new spouse
because of a prior undissolved marriage. While the veteran claimed that
a presumption of death should apply, the Court observed that both
Federal and Phillipine law contemplate that it is the absentee who may
be presumed dead. Since he had left his first wife rather than
vice-versa, he could not presume that she was dead under either law.

**[Grovhoug v. Brown]{.underline}**, No 93-547 (U.S. Ct. Vet. App. Oct.
14, 1994) - In this case, the Court held that the BVA failed to discuss
whether or not the veteran was entitled to a compensable evaluation for
his service connected periodontal disease. Further the Court held that
the Veterans Health Administration (VHA) may have failed to give
procedural due process before terminating the veteran\'s entitlement to
dental treatment.

**[Parker v. Brown]{.underline}**, No. 93-201 (U.S. Ct. Vet. App. Oct.
21, 1994) - There were two separate appeals in this case. In the first
appeal, the Court affirmed the denial of a claim for an increased
evaluation for a back condition. In the second appeal, the Court
determined that the appellant had not filed a well-grounded claim for
payment or reimbursement of medical expenses under 38 U.S.C. § 1728(a).

**[Webb v. Brown]{.underline}**, U.S. Ct. Vet. App. No. 93-698 (Oct. 25,
1994). In **[Webb]{.underline}**, the veteran was notified by VHA
Medical Administrative Service that his outpatient fee-basis status had
been cancelled. He appealed on the basis of geographical hardship. BVA
dismissed the for lack of jurisdiction. The Court remanded the appeal
faulting BVA for its failure to provide an adequate statement of reasons
or bases for its determination that eligibility for fee-basis outpatient
services is not within its jurisdiction.

**[Gregory v. Brown]{.underline}**, No 91-912 (U.S. Ct. Vet. App. Oct..
31, 1994) - The Court held that fees under the provisions of the Equal
Access to Justice Act (EAJA) were not payable. In this decision, the
Court found that the VA\'s reliance upon section 3.53(a) in continuous
cohabitation decisions, both prior to and during the litigation process,
was substantially justified.

Are there any questions about any of these decisions?

We\'ll be sending out the decision assessment documents for these last
five cases as an addendum to this hotline transcript. That\'s what we
did last month and we\'ll be continuing that practice. Are there any
questions about anything else said on this hotline? If not, the next
hotline will be on Thursday, January 5, 1995, at 11:00 am EST. Have a
good holiday and I\'ll see you then.

Addendum

**SUBCHAPTER XII. BVA REMANDS**

**8.45 REMANDS**

a\. **General.** In remanded cases, an 8-month suspense is established
by the BVA. The BVA will follow up on remanded cases at the end of the
suspense period unless the case has been returned to the Board within
that time or the Board has been advised that the appeal has been
satisfied by the allowance of each appealed issue. The Adjudication
Officer is responsible for notifying the BVA when:

\(1\) A remanded appeal is withdrawn by reason of allowance of all the
benefits sought. In those cases, FAX a copy of the rating or
authorization award document, as appropriate, to the Director, BVA
Administrative Service (014), FAX number 202-233-6364. Also FAX a cover
note indicating that this represents a complete grant of all benefits
involved in the BVA remand.

\(2\) Remand action is not or cannot be completed within the 8-month
suspense period.

b\. **Priority Processing of Remanded Appeals.** The ATS coordinator
(part II, chapter 7) and Adjudication management are responsible for
close control and timely processing of BVA remanded appeals. Remands are
among the oldest cases and must be worked on a priority basis. Upon
receipt of the claims folder, immediately refer the case to the rating
or authorization activity, as appropriate for necessary development or
other action required. Unless otherwise indicated by the remand
decision, all development actions must be immediately taken upon receipt
of the claims folder in the regional office. See part II, chapter 7.

c\. **Appeal Withdrawn.** If the substantive appeal is subsequently
withdrawn (see subchapter IX), notify BVA, and update the ATS (part II,
chapter 7).

d\. **Review by Service Organization.** Prior to recertification of a
remanded case, give the representative of a service organization holding
power of attorney an opportunity to review the case. Follow the
procedure provided in paragraph 8.31 except that readiness for appellate
review may be shown by annotation on the previously executed VA Form 646
or by memorandum or letter for file in lieu of executing a new form.

e\. **Transfer of Records for Independent Medical Expert Requests.** If
records are received from the BVA for delivery to a medical school for
review by a specialist, maintain a control. A representative of the VA
facility will personally deliver and pick up the records from the
institution.

f\. **Recertification - Evidence Received.** When the additional
evidence requested by the remand has been received, carefully review the
entire record. If the benefit sought cannot be granted, send an SSOC to
the claimant and representative allowing a period of 60 days for
response before recertification. At the expiration of that period, note
in the \"Remarks\" block of the certification of appeal form, VA Form 8,
filed in the folder

**Addendum II**

Judicial Review Conference Call Transcript

Additional Assessment Documents

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 93-462 [ACTIVITY:]{.underline} Authorization

[NAME:]{.underline} Brillo v. Brown

[ISSUE(S)]{.underline}: Validity of remarriage, presumption of death

[ACTION BY COURT]{.underline}: Affirmance [DECISION DATE]{.underline}:
10/7/94

[BEFORE JUDGES]{.underline}: [Nebeker]{.underline}, Kramer (dissenting),
Mankin

[Facts]{.underline}: Mr. Brillo married C. Fernandez in March 1944 in
the Phillipines. They separated in 1945 and he later obtained an ex
parte divorce in Nevada in March 1949 after moving to the United States.
He returned to the Phillipines subsequently and apparently resumed
living with C. Fernandez for awhile in the 1960\'s. In May 1983 he
married N. Palma in the Phillipines. His initial claim for benefits
based on this marriage was denied as his 1949 divorce was considered
invalid under Phillipine law. He requested reconsideration based on the
fact that the local registrar had been unable to find a record of his
1944 marriage following a diligent search in 1983. Benefits were again
denied because the certificate was of record in the claims folder.
Finally he asserted that he had not seen his first spouse for 40 years
and that she should be presumed dead. However, a field examination
showed she was still alive. Her testimony was that the veteran had
abandoned her in 1945, they lived together briefly in the 1960\'s, and
she last saw him in 1972. A Hearing Officer ultimately concluded that
the preponderance of the evidence showed that Mr. Brillo had abandoned
his first wife rather than vice-versa. On remand from the Board of
Veterans\' Appeals (BVA), a District Counsel opinion was obtained
indicating that the 1949 divorce was invalid under Phillipine law as
mutual separation was not a basis for divorce in the Phillipines at that
time. The regional office continued the denial and the veteran appealed
to BVA on the grounds that he was entitled to presume C. Fernandez dead
when he married N. Palma. During 1992, he returned to the United States
to pursue U.S. citizenship. BVA later determined that his claim was not
well grounded, and CVA affirmed the finding in a split decision.

[Analysis]{.underline}: The majority concludes that appellant could not
have presumed his first wife was dead under U.S. or Phillipine law
because VA had found that he, not she, was the absentee. Even though 38
U.S.C. 108 may not apply and Phillipine law had not been proved
(appellant provided a paperback edition of the 1993 Phillipine law),
both contemplate that it is the absentee who may be presumed dead under
prescribed circumstances. The dissenting judge argued that the District
Counsel opinion was deficient and that **[Sanders v.
Brown]{.underline}**,

6 Vet. App. 17, 19 (1993), required remand of **[Brillo]{.underline}**
for further analysis.

[RECOMMENDED VBA ACTION(S)]{.underline}: None. The Court affirmed the
outcome based on the Hearing Officer\'s findings.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [11/7/94]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 93-547 [ACTIVITY:]{.underline} OTHER

[NAME:]{.underline} Grovhoug v. Brown

[ISSUE(S)]{.underline}: Entitlement to dental treatment

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
10/14/94

[BEFORE JUDGES]{.underline}: [Kramer]{.underline}, Holdaway, and Ivers

[FACTS]{.underline}: In December 1988, the Board of Veterans Appeals
(BVA) granted service connection for periodontal disease, subsequently
evaluated at 0% disabling. The veteran received outpatient dental
treatment from August 1989 until August 1991. His treatment was
terminated by the Veterans Health Administration (VHA) in August 1991.
On appeal, the BVA upheld the termination of dental treatment because
the veteran did not meet the requirements for Class I, II, II(a), or III
eligibility under 38 C.F.R. § 17.123..

[ANALYSIS]{.underline}: The Court noted that the BVA did not discuss the
schedular criteria for a compensable rating under 38 C.F.R. § 4.150 nor
did it provide reasons or bases for why the appellant did not meet the
criteria. This requirement had previously been discussed by the Court in
**[Mays v. Brown]{.underline}**, 5 Vet. App. 302.

The Court also looked at whether the veteran had been given procedural
due process to include a predetermination notice of the termination of
dental treatment. Although there are in existence many provisions in the
C.F.R\'s which require procedural due process, none seem to be
applicable on their face to the termination of outpatient dental
treatment. Because the Court could not find any VHA citations on this
issue, it held that the provisions of M21-1, Part IV, Chapter 9 are
applicable to decisions by the VHA Dental Clinics. This specific issue
has been discussed with The Appellate Litigation Staff (027). A motion
for reconsideration or clarification will be filed asking that the Court
amend its decision to clearly indicate that the M21-1 is only binding on
the adjudication of claims for monetary benefits.

[RECOMMENDED VBA ACTION(S)]{.underline}: None

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [11/8/94]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 93-201 [ACTIVITY:]{.underline} RATING/OTHER

[NAME:]{.underline} Parker v. Brown

[ISSUE(S)]{.underline}: Inextricably intertwined issues; well-grounded
claims

[ACTION BY COURT]{.underline}: Affirmance [DECISION DATE]{.underline}:
10/21/94

[BEFORE JUDGES]{.underline}: Kramer (dissenting), Farley, and
[Holdaway]{.underline}

[FACTS]{.underline}: The two separate issues in this case involved an
evaluation of service connected residuals of a low back injury and
entitlement to payment for nonemergency medical care. BVA upheld the
denial of an increased evaluation for the low back condition and
remanded an issue of entitlement to Individual Unemployability (IU) to
the regional office. BVA held that the claim for reimbursement for
medical expenses was not well grounded.

[ANALYSIS]{.underline}: Having examined the record, the majority of the
panel was satisfied that there was a plausible basis for the findings of
the BVA and that adequate reasons or bases were given for the denial of
an increased evaluation for the low back condition. The majority also
found that the IU claim was not inextricably intertwined with the claim
for an increased evaluation because the IU claim was still at the
administrative level within VA. In the dissenting opinion, Judge Kramer
stated that the issue of entitlement to IU was inextricably intertwined
with the evaluation of the low back condition and that review by the
Court was premature. This decision does not reflect any changes to
previous Court decisions involving inextricably intertwined issues.

What constitutes a well-grounded claim for payment or reimbursement of
medical expenses under 38 U.S.C. § 1728(a) is solely a Veterans Health
Administration (VHA) issue. In this case, the Court has not
expanded/modified its previous holdings on well-grounded claims. (NOTE:
A copy of the Court\'s decision has been furnished to VHA.)

[RECOMMENDED VBA ACTION(S)]{.underline}: None

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [11/17/94]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 93-698 [ACTIVITY:]{.underline} OTHER

[NAME:]{.underline} Webb v. Brown

[ISSUE(S)]{.underline}: Fee-basis determinations; reasons or bases

[ACTION BY COURT]{.underline}: Remand [DECISION DATE]{.underline}:
10/25/94

[BEFORE JUDGES]{.underline}: [Kramer]{.underline}, Mankin, Holdaway
(dissenting)

[FACTS]{.underline}: The veteran is service-connected for right eye
uveitis with secondary cataract. In January 1973, he was approved for
outpatient fee-basis status. This was apparently given for \"geographic
hardship.\" In July 1991, he was notified by the Medical Administration
Service that his fee-basis status had been cancelled on the basis that
the services he required could be provided by a VA medical center in
Northport, New York. The veteran appealed, stating that travel to the
medical center constituted geographical hardship due to the
approximately 81 mile roundtrip involved, and the need to be driven by
his wife. The BVA dismissed the appeal for lack of jurisdiction on the
basis that the issue of whether to continue private fee-basis care did
not involve a \"substantive benefit\" for veterans.

[ANALYSIS]{.underline}: The Court faulted the BVA for its failure to
provide an adequate statement of reasons or bases for its determination
that eligibility for fee-basis outpatient services is not within its
jurisdiction under the provisions of 38 C.F.R § 20.101(b). That
regulation states that the Board\'s jurisdiction extends to questions of
eligibility for outpatient treatment, among other determinations of the
Veterans Health Administration (VHA). However, that regulation makes a
clear distinction between \"eligibility for outpatient treatment\" and
\"determinations of the need for and appropriateness of specific types
of medical care and treatment for an individual,\" a distinction the
Court apparently overlooked. The Court also questioned the regulation
itself, in that the regulatory definition of a \"benefit\" is \"any
payment, service, commodity, function, or status, entitlement to which
is determined under laws administered by the VA . . . pertaining to
veterans.\" 38 C.F.R. § 20.3(e).

The dissent focused on fee-basis services as not being a \"right\"
accruing to a veteran and, therefore, a well-grounded claim had not been
presented.

[RECOMMENDED VBA ACTION(S)]{.underline}: None. This case involves
questions pertaining solely to BVA jurisdiction and the Veterans Health
Administration (VHA). A copy of this decision has been forwarded to VHA.

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [11/21/94]{.underline}

Yes No J. Gary Hickman Date

[DECISION ASSESSMENT DOCUMENT]{.underline}

[DOCKET NO.]{.underline}: 91-912 [ACTIVITY:]{.underline} OTHER

[NAME:]{.underline} Gregory v. Brown

[ISSUE(S)]{.underline}: Equal Access to Justice Act (EAJA)

[ACTION BY COURT]{.underline}: Denial [DECISION DATE]{.underline}:
10/31/94

[BEFORE JUDGES]{.underline}: Nebeker, [Kramer]{.underline}, and
Steinberg (dissenting)

[FACTS]{.underline}: VA opposed the application of William G. Smith,
attorney, for EAJA fees based on the premise that the VA\'s denial of
death benefits due to lack of continuous cohabitation was substantially
justified within the meaning of 28 U.S.C. §2412(d)(1)(A), (d)(2)(D).

[ANALYSIS]{.underline}: In **Gregory v. Brown**, 5 Vet. App. 108 (1993,
the Court held that a continuous cohabitation decision must be
determined by the events that occurred at the time of the separation and
not by the reasons for the continuation of the separation. In this
decision, the Court found that the VA\'s reliance upon section 3.53(a),
both prior to and during the litigation process, was substantially
justified. Although the VA\'s arguments before the Court were ultimately
rejected, they were nevertheless advanced with substantial
justification. The Court denied the EAJA application.

The issue of payment of EAJA fees is solely for General Counsel. This
decision does not impact on policies or procedures at the regional
office level.

[RECOMMENDED VBA ACTION(S)]{.underline}: None

[ACTION BY DIRECTOR, C&P SERVICE]{.underline}:

[Approved]{.underline}?

[X]{.underline} [/s/]{.underline} [11/17/94]{.underline}

Yes No J. Gary Hickman Date