**UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS**

No. 96-619

[Paul W. Jackson, Appellant,]{.smallcaps}

[v.]{.smallcaps}

[Togo D. West, Jr.,]{.smallcaps}

[Secretary of Veterans Affairs, Appellee]{.smallcaps}.

On Appellant\'s Application for Attorney Fees and Expenses

(Decided June 14, 1999 )

*Frederick A. Provorny* was on the pleadings for the appellant.

*Leigh A. Bradley*, General Counsel; *Ron Garvin*, Assistant General
Counsel; *Joan E. Moriarty*, Deputy Assistant General Counsel; and
*Patricia Trujillo* were on the pleading for the appellee.

Before IVERS, STEINBERG, and GREENE, *Judges*.

STEINBERG, *Judge*: The appellant, World War II veteran Paul W. Jackson,
appealed through counsel a May 24, 1996, decision of the Board of
Veterans\' Appeals (BVA or Board) that denied an increased rating (above
10%) for a Department of Veterans Affairs (VA) service-connection claim
for bilateral varicose veins. Record (R.) at 7. On July 15, 1998, the
Court vacated that BVA decision and remanded the matter for
readjudication. The appellant has filed a timely application for
attorney fees and expenses under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412(d). The Secretary has filed an opposition to that
application, and the appellant has filed a reply to that opposition and
a request for additional fees and expenses. For the reasons that follow,
the Court will grant the EAJA application subject to recalculation
pursuant to *Mannino v. West*, 12 Vet.App. 242 (1999).

**I. Relevant Background**

On June 3, 1996, the appellant filed a Notice of Appeal in this Court.
The Secretary designated the record on August 9, 1996. The appellant
filed the counter designation of the record on March 25, 1997. The
appellant filed his brief on December 29, 1996, the Secretary filed his
response on March 31, 1998, and the appellant filed a reply on April 13,
1998.

The appellant argued in his brief that the Board had failed (1) to make
a finding of fact as to the varicose veins above his knees; (2) to carry
out its duty to assist pursuant to 38 U.S.C. § 5107(a) by not providing
a contemporaneous and adequate physical examination (including a
functional impairment analysis, in accordance with 38 C.F.R. § 4.104,
Diagnostic Code (DC) 7120 (1995), during an \"active phase\", by an
examiner with access to the appellant\'s claims file); (3) to provide
the appellant with reasonable notice of its intent to rely on specific
material and an opportunity to respond to that material as required by
*Thurber v. Brown*, 5 Vet.App. 119, 126 (1993); (4) to adjudicate his
claim pursuant to 38 C.F.R. § 3.303 (1998) (\"administer the law under a
broad and liberal interpretation consistent with the facts in each
individual case\"); (5) to provide an adequate statement of reasons or
bases pursuant to 38 U.S.C. § 7104(d)(1); and (6) to apply the
benefit-of-the-doubt rule pursuant to 38 U.S.C. § 5107(b). Brief at
10-24. In his brief, the Secretary, citing *Karnas v. Derwinski*,
1 Vet.App. 308 (1991), conceded that the Board decision should be
vacated and the matter remanded to the Board to consider a change in the
regulations on varicose veins that had occurred while the appeal was
pending. Brief at 6. He noted that the VA Schedule for Rating
Disabilities as to varicose veins had been substantially revised,
effective January 12, 1998. *See* 62 Fed. Reg. 65207-65224 (1997)
(codified at 38 C.F.R. §§ 4.100, 4.101, 4.102, and 4.104 (1998)). The
Secretary also noted that, in the revision of § 4.104, DC 7120 had been
changed to include broader rating criteria and expanded to include the
availability of a 100% schedular rating. Brief at 7. In requesting that
remand, the Secretary stated that the Board on remand must base its
subsequent decision on medical evidence that reflected the current level
of the appellant\'s disability and must include an adequate statement of
reasons or bases and \"discuss the applicability\" of the
benefit-of-the-doubt rule. *Ibid*. Finally, the Secretary argued that,
except for the intervening change in regulation, the BVA decision on
appeal should have been affirmed as not clearly erroneous; he briefly
rebutted the appellant\'s contentions, particularly the lack of an
adequate contemporaneous medical examination, the failure to apply the
benefit-of-the-doubt rule, and an inadequate statement of reasons or
bases. Brief at 8-10. In his reply, the appellant agreed that his appeal
should be remanded but urged the Court to instruct the Board not to
repeat on remand the errors that he asserted that the Board had
committed in its May 1996 decision. Reply at 1.

On July 15, 1998, the Court vacated the May 1996 BVA decision and
remanded the rating-increase matter. The Court held:

> In accordance with *Karnas*\[, 1 Vet.App. at 313\], when a law or
> regulation changes after a claim has been filed or reopened, but
> before the administrative or judicial appeal has been concluded, the
> version more favorable to the claimant must be applied. *See also*
> *DeSousa v. Gober*, 10 Vet.App. 461, 467 (1997). Accordingly, the
> Board decision will be vacated and the matter remanded for
> readjudication. The record on remand should include copies of all
> pleadings and motions relating to the merits filed here by the parties
> that pertain to the subject of the remand and of all orders,
> decisions, and opinions issued by this Court or any other in
> connection with the remanded matter. Any decision on remand must be
> based on medical evidence that reflects the current level of the
> appellant\'s disability (including the conduct of a thorough and
> contemporaneous medical examination, in which the examiner has
> available for review the appellant\'s full medical record regarding
> this claim and renders an opinion on the current state of the
> appellant\'s varicose veins during their active phase, where they are,
> and how they limit activity in the context of the applicable DC, *see*
> 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.104 (1997); *Ardison v. Brown*,
> 6 Vet.App. 405, 407‑08 (1994); *Suttmann v. Brown*, 5 Vet.App. 127,
> 138 (1993); *Green (Victor) v. Derwinski*, 1 Vet.App. 121, 124
> (1991))\[,\] and must apply the rating criteria most favorable to the
> appellant. *See DeSousa* and *Karnas*, both *supra*. On remand, the
> Board must (1) include an adequate statement of the reasons or bases
> for its findings and conclusions; (2) account for all the evidence of
> record; (3) analyze the credibility and probative value of all
> material evidence; and (4) fully explain why it finds persuasive or
> unpersuasive each piece of material evidence, especially that in
> support of the claim. Additionally, the Board should discuss the
> applicability of the \"benefit of the doubt\" doctrine in 38 U.S.C.
> § 5107(b). *See Williams (Willie) v. Brown*, 4 Vet.App. 270, 273‑74
> (1993); *Gilbert v. Derwinski*, 1 Vet.App. 49, 53-56, 58 (1990).

*Jackson v. West*, No. 96-619, 1998 WL 557325, at \*1 (Vet. App.
July 15, 1998).

On October 8, 1998, the appellant filed through counsel an application
for \$12,871.21 in attorney fees and expenses under the EAJA, using the
U.S. City Average, Consumer Price Index for All Urban Consumers (CPI-U).
Application at 8-11, Exhibit A. On November 10, 1998, the Secretary
filed a response in opposition, urging that the Court deny the
application solely on the ground that his position was \"substantially
justified\" because the catalyst for the remand was the change in law
and VA had not unduly delayed in moving for a remand on that basis.
Response at 3-4. The appellant argued in his December 7, 1998, reply
that the Secretary\'s position, at both the administrative and
litigation stages, was not \"substantially justified\". Reply at 2. On
that same date, the appellant also filed a supplemental application for
an additional \$1,989.21 in attorney fees and expenses for the work done
in preparation and support of the EAJA application. The Secretary has
not opposed either the initial or that additional amount \-- totaling
\$14,860.42 in fees and expenses.

**II. Analysis**

***A. Jurisdiction***

This Court has jurisdiction to award reasonable attorney fees and
expenses pursuant to 28 U.S.C. § 2412(d)(2)(F) as amended by section 506
of the Federal Courts Administration Act of 1992, Pub. L. No. 102-572,
§ 506, 106 Stat. 4506, 4513 (1992). The appellant\'s October 8, 1998,
EAJA application was filed within the 30-day EAJA application period set
forth in 28 U.S.C. § 2412(d)(1)(B) and has satisfied any jurisdictional
content requirements that apply because the application contained the
following: (1) A showing that, by virtue of the Court\'s remand, he is a
prevailing party within the meaning of the EAJA; (2) a showing that he
is a party eligible for an award under the EAJA because his net worth
does not exceed two million dollars; (3) an assertion that the position
of the Secretary was not substantially justified; and (4) an itemized
statement of the fees sought supported by an affidavit from the
appellant\'s counsel. *See* 28 U.S.C. § 2412(d)(1)(A) and (B), (2)(B);
*Chesser v. West*, 11 Vet.App. 497, 499 (1998); *Bazalo v. Brown*,
9 Vet.App. 304, 308 (1996), *rev\'d on other grounds sub nom. Bazalo
v. West*, 150 F.3d 1380, 1384 (Fed. Cir. 1998) (concluding that showing
of net worth not jurisdictional requirement).

***B. Substantial Justification***

This Court will award attorney fees \"unless the \[C\]ourt finds that
the position of the United States was substantially justified\".
28 U.S.C. § 2412(d)(1)(A); *Stillwell v. Brown*, 6 Vet.App. 291, 301
(1994). Because the appellant here has alleged, pursuant to 28 U.S.C.
§ 2412(d)(1)(B), that the Secretary\'s position was not substantially
justified (Application at 8-11; Reply at 2), the Secretary \"has the
burden of proving that \[his\] position was substantially justified in
order to defeat the appellant\'s EAJA application\", *Stillwell*,
*supra*. In order to avoid the payment of attorney fees and expenses,
the Secretary must demonstrate that his position was substantially
justified at both the administrative (BVA) and litigation (in this
Court) stages. *See Locher v. Brown*, 9 Vet.App. 535, 537 (1996); *ZP
v. Brown*, 8 Vet.App. 303, 304 (1995).

This Court generally applies the following standard for determining
whether the Secretary\'s position was substantially justified:

> VA must demonstrate the reasonableness, in law and fact, of the
> position of the VA in a matter before the Court, and of the action or
> failure to act by the VA in a matter before the VA, based upon the
> totality of the circumstances, including merits, conduct, reasons
> given, and consistency with judicial precedent and VA policy with
> respect to such position, and action or failure to act, as reflected
> in the record on appeal and the filings of the parties before the
> Court. . . .

*Stillwell*, 6 Vet.App. at 302-03.

To determine whether the Secretary has demonstrated that his position
was \'\'reasonable\" during the administrative and litigation stages,
the Court looks, respectively, to the \"\'relevant, determinative
circumstances\'\" and to the \"circumstances surrounding the resolution
of the dispute\". *Stephens v. West*, 12 Vet.App. 115, 118 (1999)
(quoting and citing *Dillon* *v. Brown*, 8 Vet.App. 165, 167-68 (1995),
*Bowyer v. Brown*, 7 Vet.App. 549, 552-53 (1995), and *Carpenito v.
Brown*, 7 Vet.App. 534, 536-37 (1995)). The Secretary contends that,
because the intervening change in regulation was the catalyst for the
remand and because his primary litigation position was a request for a
remand, his position at both the administrative and litigation stages
was reasonable. Response (Resp.) at 3-4. Citing *Pierce v. Underwood*,
487 U.S. 552, 563 (1998), he argues that the \"substantial justification
inquiry should not lead to a retrying of the merits of the case.\"
Resp. at 8. The appellant asserts that the Board committed numerous
errors at the administrative stage and that at the litigation stage the
Secretary expressly opposed any remand related to those errors but that
the Court, nonetheless, specifically directed the Board to correct those
errors as well as to apply the amended regulation. Application at 9-11;
Reply at 2.

We will first consider the question whether the Secretary was
substantially justified during the administrative stage. That question
depends initially on a determination of what were the relevant,
determinative circumstances governing the Court\'s disposition of the
appeal. *See Stephens* and *Dillon*, both *supra*.

***1. Relevant, Determinative Circumstances at Administrative Stage.***
In determining the relevant, determinative circumstances at the
administrative stage, we focus on what the Board was required to do
under the terms of the remand ordered by the Court. *See Stephens*,
12 Vet.App. at 118-19 (focusing on language of Court\'s order). When the
appeal involves a remand order following a joint motion for remand, \"it
is the Court\'s order remanding the claim, and consequently the language
of the joint motion, upon which an evaluation of the basis for the
remand must focus.\" *Id.* at 118; *Olney v. Brown*, 7 Vet.App. 160,
162-63 (1994). In a case such as the instant case, where there was a
Court remand but no joint remand motion, the Court, in order to
determine \"reasonableness\" under the \"totality of the
circumstances\", must focus on the Court\'s remand order and the
language of the underlying pleadings, including any remand motions or
requests submitted. *Cf. Stephens*, *supra*. When the Court\'s remand
order provides only one basis for remand and does \"not address any
other allegations of error\", the appellant\'s additional allegations of
BVA error cannot be considered to be \"\'relevant determinative
circumstances\' that would shed light on the reasonableness of the
Secretary\'s . . . position\", *Dillon*, 8 Vet.App. at 168, but, rather,
constitute an impermissible attempt to conduct a \"second major
litigation\" of the merits. *Dillon*, *supra* (quoting *Hensley v.
Eckerhart*, 461 U.S. 424, 437 (1983)).

In the somewhat similar context of joint remand motions, this Court has
previously considered remand orders both that did not and that did
include language about what the Board should do on remand. In *Dillon*,
the Court, in declining \"the appellant\'s invitation to conduct such a
\'second major litigation\'\", concluded as follows: \"The fact that the
Court\'s remand order cited ***only*** the \[changed caselaw\] error and
did not address any other allegations of error establishes that the
\[changed caselaw\] error ***alone*** served as \'the catalyst for the
remand.\'\" *Dillon*, 8 Vet.App. at 168 (emphasis added) (quoting
*Olney*, 7 Vet.App. at 162). That was clearly not the case here, as the
discussion below will illustrate. Most recently, in deciding, in a
joint-remand-motion case, not to \"\'reach back and, in essence,
readjudicate the appeal de novo\'\", the Court held in *Stephens* \"that
the only basis for remand was to permit the BVA to consider the effect
of the regulation change on the veteran\'s claim\" because \"the joint
motion \[had only\] conditionally state\[d\] that even if the changed
regulation is not more favorable to the veteran, the BVA \'should also
***consider*** whether another VA examination should be performed.\'\"
*Stephens*, 12 Vet.App. at 119 (emphasis added).

In the instant case, however, the remand order contained unconditional
language that expressly directed the Board to carry out specified
further development and to address certain specified issues on remand,
not merely to \"consider\" whether or not to do so. Specifically, the
Court ordered:

> Any decision on remand ***must*** be based on medical evidence that
> reflects the current level of the appellant\'s disability (including
> the conduct of a thorough and contemporaneous medical examination,
> ***in which the examiner has available for review the appellant\'s
> full medical record regarding this claim and renders an opinion on the
> current state of the appellant\'s varicose veins during their active
> phase, where they are, and how they limit activity in the context of
> the applicable DC***, *see* 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.104
> (1997); *Ardison v. Brown*, 6 Vet.App. 405, 407-08 (1994);
> *Suttmann*\[, 5 Vet.App. at 138\]; *Green* \[*(Victor)*, 1 Vet.App. at
> 124,\] and ***must*** apply the rating criteria most favorable to the
> appellant.

*Jackson*, *supra* (emphasis added). That language was not merely \"an
exhortation to the Board to ensure that its possible new determination
is predicated on a different and complete medical record\", as was the
case in *Stephens* and *Olney*, but was \"a directive awarding the
performance of a new evaluation on remand.\" *Stephens*, *supra*. Also,
the Court provided that \"the Board should discuss the applicability of
the \'benefit of the doubt\' doctrine\". *Ibid*. The mandatory,
unconditional language of the Court\'s remand order here is analogous to
that in *Perry v. West*, in which the Secretary did not contest the
substantial-justification issue; there the Court held \"that the remand
proposed by the Secretary and the remand ordered by the Court were not
equivalent . . . \[; in fact,\] the Court . . . expressly required
significantly greater relief than was contemplated by the Secretary\'s
proposed remand.\" *Perry*, 11 Vet.App. 319, 326 (1998).

Accordingly, the Court concludes that the Board\'s failure, as asserted
by the appellant, to provide a thorough and contemporaneous medical
examination, with the examiner clearly having had the appellant\'s claim
file in advance and then focussing on the appellant\'s upper leg as well
as lower leg and doing so during an active phase of the condition, did
in fact play a significant role in the Court\'s decision to remand.
*Cf.* *Stephens*, *Dillon*, and *Olney*, all *supra*. Thus, the Court
holds that the very specific, mandatory language in this remand order
imposing the additional requirements constituted an additional ground
for remand based on an implicit determination by the Court that the
Board had erred in its adjudication of the case on the basis of the
examination that had been afforded, c*f. Stephens*, *supra*, and thus
further constituted \"relevant, determinative circumstances\", over and
above the *Karnas* grounds, governing the Court\'s remand of the case.
*Stephens*, *supra*.

We therefore must reach the question, left open in *Stephens*, *Dillon*,
and *Olney*, of the appellant\'s \"entitlement to EAJA fees where two
\[or more\] equal bases serve as the catalyst for remand, one being an
intervening change in law.\" *Ibid*.; *Dillon*, and *Olney*, both
*supra*.

***2. Reasonableness at the Administrative Stage.*** Hence, we will now
consider whether the Board\'s failure to provide an adequate medical
examination was reasonable under the statutory and regulatory provisions
applicable at the time of the BVA decision in May 1996. *See Moore
(Craig) v. Gober*, 10 Vet.App. 436, 440 (1997). We hold that it was not,
for the following reasons. The Board found that the rating-increase
claim was well grounded (R. at 3), and the Court\'s order, although not
citing directly to 38 U.S.C. § 5107(a), indicated agreement with the
Board by citing to *Suttmann* and *Green (Victor)*, both of which had
found claims to be well grounded and then, after finding that the Board
had breached its duty to assist by failing to provide for thorough and
contemporaneous medical examinations, had remanded for such
examinations. *See Jackson*, *supra*; *see also Suttmann*, 5 Vet.App. at
138; *Green (Victor)*, 1 Vet.App. at 123-24. The law at the time of the
Board\'s May 1996 decision was clearly established (and still is) as
follows: A well-grounded rating-increase claim requires only that the
veteran assert that the disability has increased in severity. *See
Proscelle v. Derwinski*, 2 Vet.App. 629, 631-32 (1992); R. at 216,
244-45 (veteran asserts that he has pain and cannot walk without
difficulty due to vein deterioration); *see also* *Falzone v. Brown*,
8 Vet.App. 398, 406 (1995). When faced with a well-grounded
rating-increase claim, the Board is required to assist a claimant in
developing the facts pertinent to the claim. *See* 38 U.S.C. § 5107(a);
38 C.F.R. § 3.159 (1995); *Littke v. Derwinski*, 1 Vet.App. 90, 91-92
(1990). \"If a diagnosis is not supported by the findings on the
examination report or if the report does not contain sufficient detail,
it is incumbent upon the rating board to return the report as inadequate
for evaluation purposes.\" 38 C.F.R. § 4.2 (1995); *see also* 38 C.F.R.
§ 19.9 (1995) (\"\[i\]f further evidence . . . is essential for proper
appellate decision, \[the BVA\] shall remand the case to the \[RO\]\").
In addition, the Court had established in *Ardison*, *supra*, that,
where a VA examination had not been conducted during the active stage of
a veteran\'s cyclical tinea pedis (athlete\'s foot) condition, a remand
was necessary for an adequate medical examination during the active
stage of that condition. Finally, the regulation in force at the time of
the BVA decision, 38 C.F.R. § 4.104, DC 7120 (1995), distinguished
between problems of the legs above the knees and those below the knee;
under that DC 7120 version, the appellant could not have received a
rating higher than 30% without problems above the knee.

In the Court\'s July 1998 remand order, the Court\'s specific direction
that the Board provide for a new medical examination (with the examiner
having \"available for review the appellant\'s full medical record
regarding his claim\") that would report on the current state of the
appellant\'s varicose veins \"during their active phase, where they are,
and how they limit activity in the context of the applicable DC\"
constituted an implicit finding by the Court that the Board had failed
to meet its by then clearly established section 5107(a) duty to assist
the appellant in regard to that claim. *Jackson*, *supra*. For example,
the Court\'s use of the words \"active phase\" coupled with its citation
to *Ardison*, *supra*, in response to the appellant\'s specific
contention (Brief at 15 n.8), appears to have \"expressly required
significantly greater relief than was contemplated by the Secretary\'s
proposed remand\". *Perry*, *supra*. Moreover, a medical examination of
just the legs below the knee would have been insufficient to rate the
appellant\'s claim under the applicable DC.

Because the only way to adjudicate a well-grounded claim fairly is to
gather all of the evidence that is essential to the proper evaluation of
that claim, *see* 38 C.F.R. § 3.159, 4.2, 19.9 (1995), the Court holds
that the Secretary\'s position at the administrative stage of this case
was unreasonable and thus not substantially justified. *See* *Moore
(Craig)*, *supra* (granting EAJA application where Board breached duty
to assist by failing to obtain pertinent records). This conclusion is
buttressed by the Court\'s having directed that the Board \"discuss the
applicability of the \'benefit of the doubt\' doctrine in 38 U.S.C.
§ 5107(b)\" and its citation to *Williams (Willie)*, where the Court
held that \"the Board must provide a satisfactory explanation as to why
the evidence is not in equipoise\" in any case where there is
\"significant evidence in support of an appellant\'s claim\". *Williams
(Willie)*, 4 Vet.App. at 273-74.

***3. Litigation Stage.*** Having concluded that the Secretary was not
substantially justified in his position at the administrative stage, the
Court need not address whether the government\'s litigation position
before this Court was substantially justified. *See* *Locher* and *ZP*,
both *supra*.

**III. Conclusion**

Accordingly, having concluded that the Court\'s remand to the Board was
based in part on a determination that the Board had committed an error
of adjudication that was not substantially justified and that would
itself constitute sufficient grounds for a remand, the Court grants the
October 8, 1998, EAJA application and the December 7, 1998, supplemental
EAJA application subject to a recalculation pursuant to *Mannino*,
12 Vet.App. at 244 (holding, inter alia, that appellant must use local
CPI-U where available). The appellant may file and serve on the
Secretary, not later than 20 days after the date of this opinion, a
revised accounting. Thereafter, the Secretary may file, not later than
20 days after service on him of the appellant\'s revised accounting, any
objections to that accounting. If, within that 20-day period, the
Secretary files no objections or indicates that he will not do so, the
Clerk of the Court is directed to enter an order awarding the amount
requested in the appellant\'s revised accounting. If the Secretary files
objections, a conference pursuant to Rule 33 of the Court\'s Rules of
Practice and Procedure would be available to assist in resolving any
differences. *See Mannino*, *supra*; *Shaw v. Gober*, 10 Vet.App. 498,
506 (1997); *Adair v. Brown*, 7 Vet.App. 415, 420 (1995).

APPLICATION GRANTED SUBJECT TO RECALCULATION.