See U .S. VET.APP. RULE 35(c) (providing that full-Court consideration is not "granted unless such action

1

is necessary to secure or maintain uniformity of the Court's decisions or to resolve a question of exceptional

importance"). 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-295

THOMAS J. KUZMA, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY, HOLDAWAY, 

IVERS, STEINBERG, and GREENE, Judges.

O R D E R

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
 See also VA Gen. Coun. Prec. 11-00, p. 4 (Nov. 27, 2000) [hereinafter G.C. Prec. 11-00] ("all of the . .

2

. provisions [of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000)

(VCAA),] apply to claims filed on or after November 9, 2000, as well as to claims filed before then but not finally

2

the BVA had issued a decision that had become final and nonappealable 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), it now appears that the VCAA no 2
decided as of that date").

 Curiously, the Bernklau opinion quoted a passage from Landgraf v. USI Film Products, 511 U.S. 244, 270

3

(1994) ("[s]ince the early days of this Court, we have declined to give retroactive effect to statutes burdening private

rights unless Congress had made clear its intent"), that would appear inapplicable to the situation presented by the

VCAA, in which the federal government imposed additional obligations on itself toward private parties and did

not burden the rights of private parties. Bernklau v. Principi, 291 F.3d 795, 804 (Fed. Cir. 2002). The Supreme

Court's opinion in Landgraf stresses repeatedly the concern that private rights not be retroactively burdened. See

Landgraf, 511 U .S. at 265 ("[e]lementary considerations of fairness dictate that in d ivid uals should have an

opportunity to know what the law is and to conform their conduct accordingly" (emphasis added)), 282 ("[t]he

introduction of a right to compensatory dam ages is also the type of legal change that would have an impact on

p rivate p arties' planning" (emphasis added)); see also id. at 266, 271, 272, 284.

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

3.156, 3.159, 3.326).

 Karnas v. Derwinski, 1 Vet.App. 308, 313 (1991) (holding that "where the law or regulation changes after

5

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

longer is retroactively applicable to a claim decided by theBoard 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, have application under Karnas v. 4

Derwinski , to an appeal in this Court of a pre-VCAA-enactment BVA decision where neither VA 5
 See 38 U .S.C. §§ 7104(b), 7105(c), 7266; 66 Fed. Reg. at 45,620 (providing, except as to three provisions

6

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").

 In this regard, the Court recently stated, in Teten II: "[A]t the time of [Mr. Teten's] death, the BVA decision

7

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). 

 See supra note 6. 8

 The briefing order in Matlock stated the issues as follows:

9

(1) Does section 3(a) of the VCAA apply to the

claims involved in this case? See Karnas[, supra note 5.]

(2) Do the revised VA adjudication regulations, see

66 Fed. Reg. 45,630-32 (Aug. 29, 2001) (to be codified at

38 C.F.R. pt. 3) ("Duty to Assist" regulations), apply to the

claims involved in this case and, if so, under what authority

were those regulations promulgated?

(3) If neither VCAA section 3(a) nor the revised VA

adjudication regulations apply to the claims involved in this

case, did VA have a duty to assist or to notify in regard to

those claims?

Matlock v. Principi, __ Vet.App. ___, ___, No. 01-688, 2002 W L 1357301 at *1 (June 19, 2002) (per curiam order).

4

nor the BVA had issued a decision that had become final and nonappealable before that date . (I 6

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. ) Furthermore, briefing should also be obtained on whether, if the VCAA were construed not 7

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 provide – under non-VCAA authority in 8

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. Additionally, in a case similar to the instant case insofar as it involves the appeal 9

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
 J.B. Stephens v. Principi, __ Vet.App. __, No. 00-1516, 2002 W L _____ (July 10, 2002) (Steinberg, J., 10

concurring in part and dissenting in part).

5

an appeal. It is true that the panel to which this case is being returned could – and, I hope, will –

10

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.