THIS VERSION OF THE OPINION REF LECTS THE S EPTEMBER 10, 2013, ERRATA
UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 12-548(E)

M I C H A E L J

. G A R S O W , A P P E L L A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE R

A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls (De cided Aug ust 30, 2013)

Robert V. Chisholm , of Providence , Rhode I sland, was on the br ief for the appe llant.

W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant Gene ral Counsel; Carolyn F. W ashington , Deputy Assistant Gene ral Counsel; and Catherine A. Chase , all from Washington, D.C., were on the brief

for the a ppellee.

Be fore KASOL D, Chief Judge , and HAG ELand L ANCE, Judges

. KASOL D, Chief Judge , filed t he opini on of t h e C o u rt. L ANCE, Judge , filed a dissenting opinion.
KASOL D, Chief

Judge : Be fore the Court is Michae l J

. Gar sow' s May 16, 2012, application pursuant to the Equal Acc ess to J ustice Act (EAJA), 28 U.S.C. § 2412(d), for an awa rd of attorney fee s and expenses in the amount of $796.26 for 4.7 hours of attorney work. The May 9, 2012, Court order underly ing Mr. Gar sow' s EAJA application g rante d the parties' joint motion to vacate (JM V) a J anuar y 23, 2012, Boa

rd of Ve tera

ns' Appea ls (B oard) decision on the understanding that it was ultra vires, and dismiss ed the appea l. As to the EAJA application, the parties orig inally ag ree d that Mr. Gar sow was a preva iling party , b ut the Clerk of the Court perc eived that this circ umstance prese nted a novel issue and forwa rded it for judicial revie w. See Court's I nterna l Oper ating Procedur es § XI I (b)( 1); see also U.S. V E T

. A P P

. R. 45(g )(9) (stating that the Clerk of t he Court is permitted, but not require d, to "a ct on motions and applications, if joint, consente d to, or unopposed,that seek to

. . . ob t ai n at t o rn ey fees and expenses pursuant to 28 U.S.C. § 2412(d)" ). I n

supplemental briefing , the Secre tary reve rsed his position and ar gued that Mr. Gar sow is not a preva iling party

. For the rea sons stated below, we hold that, based on the unique fac ts prese nted here , Mr. Gar sow is not a preva iling party for EAJA purposes an d the Court will deny his EAJA application.

I. BACKG ROUND Be cause the proce dural history of this matter is unusual, we start with a brief backg round of the underly ing action for which this EAJA awa rd is soug ht. On November 1, 2011, the Boa rd issued

a decision that (1) denied Mr. Gar sow' s claim for disability compensa tion for bilatera l hear ing loss, (2) rema nded his claim for benef

its for an acquir ed psy chiatric disorder and tinnitus , and (3) g rante d his claim for bilatera l periphe ral neuropa thy of the left and rig ht lower extremiti es (neur opathy ). On J anuar y 9, 2012, under doc ket number 12- 0103, Mr. Gar sow timely submitt ed a N otice of A

ppeal (NOA ) from the November 2011 decision. By opera tion of law, howeve r, our jurisdiction over the
appea l was limit ed to the Boa rd' s 2011 denial of Mr. Gar sow' s claim for benef its for bilatera l hear ing loss. See Hibbard v. W

est , 13 Vet.App. 546, 548 (2000) (holding that t he Court's jurisdiction is limit ed to the appe al of fina l Boa rd dec isions that are adverse to the claimant). On J anuar

y 23, 2012, appar ently without knowledg e that Mr. Gar sow had appea led the November 2011 Boa

rd de ci s ion to the C ourt, the Board vacate d the entire November 2011 Boa rd decision and issued a new decision i n its stead. The Boar d explained that the re cord upon which 1 the November 2 0 1 1 decision had been based included documents perta ining to another veter an, which the J anuar

y 2012 Boa

rd deter mined had aff

ecte d part of the November 2011 decision. I n the

new J anuar

y 2012 decision, the Boa

rd' s deter mination with reg ard Mr. Gar sow' s claim for benef its for bilatera l hear ing loss, an acquir ed psy chiatric disorder, and t i n n i t u s rema ined the same. Howeve r, wher eas the November 2011 Boa rd g rante d service connec tion for Mr. Gar sow's
neuropa thy , the J anuar

y 2012 Boa

rd rema nded this issue for further development. Mr. Gar sow then

T o do so, the Bo ard acted on its ow n m otio n un der the auth or ity of 38 C.F.R. § 20 .90 4 (2 01 3) (" A n app ellate 1 decisio n m ay be vacated by the [B oar d] at any tim e upon req uest of the app ellant or his or her rep resentative, or on the Bo ard ' s ow

n m otio n." ).appea led the entire J anuar y 2012 Boa

rd decision under docket number 12-0548, and the parties filed

a joint motion to vaca

te that decision beca

use, they asser

ted, the Boa

rd lacke d jurisdiction to vacate the November 2011 decision while it was on appea l to this Court. See Garsow v. Shinseki , No. 12- 548 (Parties' Mar. 5, 2012, "Joint Motion to Vac ate the Boa rd

. . . Dec ision an d Di smiss the Appea l")

. On May 9, 2012, the Court, summarily and without qualifica tion, g rante d the parties' J MV and set aside the entire J anuar y 2012 Boa

rd decision. On May 16, 2012, Mr. Gar sow filed his EAJA application for

work on his appe al of the January 2012 Boa

rd dec ision. The parties' b ri efing in the EAJA matter, howeve r, raised questions as to the scope of the parties' underly ing J MV and the propriety of g ranting it in full. Specifica lly , in the J MV, the parties
reques t ed v ac at ur of the entire J anuar y 2012 Boa

rd decision for lack of jurisdiction, without

rec og nizi ng that the J anuar y 2012 Boa

rd' s decisions on Mr. Gar sow' s claims for benef its for acquir ed
psy chiatric disorder, tinnitus and neuropa thy wer e within its jurisdiction , beca use those matters

– which wer e either rema

nded or g rante d in the November 2011 Boa rd decision – wer e not befor e the Court in Mr. Gar sow' s appea l of the November 2011 Boa rd decision. See Hibbard , supra ; see also

2 Breede n v. Principi , 17 Vet.App. 475, 478 (2004) (stating that a Boa rd rema nd "doe s not repr esent

a final decision over which this Court has jurisdiction"). Be cause it appea red that the J MV and order
gra nting the J MV wer e overbr oad, the matter was returne d to the scre ening judge , who i s s u ed an order to show cause why mandate and judgme nt in the underly ing order should not be rec alled and the under ly ing or der w ithdrawn. I n response , the par

ties informed the Court that on Fe bruar y 28, 2013 – afte r Mr. Gar sow' s appea ls to t h e C o u rt h ad been resolved – the Boa rd again vaca

ted the November 2011 g rant of benef its for Mr. Gar sow' s neuropa thy , and again rema nded his claim for b en efits for an acquir ed
psy chiatric disorder and tinnitus

. Moreove r, Mr. Gar sow filed a Notice of Appea l from that portion 3

o f the Fe bruar

y 2013 Boa

rd decision that vacated the November 2011 g rant of benef its fo r neuropa thy , and it has been assig ned docket number 13 -1 2 5 9

. Be cause rec alling mandate and

Notab ly , the par ties ultim ately reco gn ized that only that par t of the Novem ber 20 11 Bo ard decisio n that denied 2 benefits for Mr. Garsow ' s bilater al hearing loss w as on app eal, and, on May 22 , 20 12 , the Court granted the par ties' j oint
m otio n f or reman d ( JM R) of that m atter

. Garsow v. Sh inseki , No . 1 2-01 03 (Ma y 22 , 2 01 2, Ord er)

. L ike the Ja nu ary

2012 Boar d decision, th e February 20 13 Bo ard decisio n rem anded Mr. Garsow ' s claim for 3 benefits f or hearing loss aft er vacating the g rant of that claim

.withdrawing the order g ranting the J MV would result in two appea ls of two Bo ar d decisions that

both vacate that portion of the November 2011 Boa rd decision that g rante d Mr. Gar sow' s claim for benef its for neuropa thy – i.e., (1) Mr. Gar sow' s appea l of the J anuar y 2012 Boa

rd decision that would be reinstated by withdrawa l of the o rd er g ranting the J MV, and (2) his curr ently pending
appea l o f t h e Fe bruar

y 2013 Boa

rd decision – the s ingle judge deter mined that such action would only cre ate confusi o n and there fore was not war rante d. See Garsow , No. 12-548 (June 19, 2013, Orde r at 3 (citing McNaron v. W est , 12 Vet.App. 334, 336 (1999) (" The power of this Court to rec all its mandate ' can be exercised only in extraordinary circ umstances

. . . . The sparing use of the power demonstrates it is one of last resor t, to be held in rese rve ag ainst g rave , unfore seen conting encie s.' " (quoting Calderon v. Thompson , 5 2 3 U. S

. 538, 550 (1998)) )). We turn now to the EAJA application.

II. DISCUSS ION Courts are char g ed with approving EAJA applications, and EAJA fee s may be awa rded only when the applicant is a preva iling party

. See 28 U.S.C. § 2412(d)( 1)(A) , (1)( B) , (2)( B) ; Comm'r, INS v. Je an , 496 U.S. 154, 160 (1990) ("I n EAJA cases, the court first must determine if the a pplicant is a ' prevai l i n g p arty ' by evalua ting the deg ree of succe ss obtained." (empha sis added) ); see also Scarborough v. Principi , 541 U.S. 401, 407-08 (2004); Owens v. Brown , 10 Vet.App. 65, 66 (1997) (" [I ]n order to attain preva iling-pa rty status, a party is require d to rec eive at least some relief on the merits of his c laim." (quoting Sumner v. Principi , 15 Vet.App. 256, 261 (2001) (en banc) (interna l quotation marks omitted))); e.g., Jason D.W

. by Douglas W

. v. Houston Indep. Sch. Dist. , 158 F.3d 205 (5th Cir. 1998) (making a finding on preva iling-pa rty status, even though both parties ag ree to pre v ail ing- party status); Swiney v. Gober , 14 Vet.App. 65, 68 (2000) (despite conce ssion by Secre tary of preva iling-pa rty status, the Court soug ht supplemental briefing and independe ntly deter mined that appellant had preva iling-pa rty status). Thus, despite the pa rties' initial ag ree ment

on preva iling-pa

rty status, and espec ially since the Secre tary reve rsed his initial position, the Court must determine pre vailing- party status as a thre shold determination. I n g ener al, to achie ve preva iling-pa rty status, a party must rec eive at least some relief on the merits of his claim rising to the level of an en fo rc ea ble judgme nt on the merits or court-or dere dconsent decr ee that materia lly alters the parties' leg al rela tionship. Vaughn v. Principi , 336 F. 3d

1351, 1356-57 (F ed. Cir. 2003) (citing Buck hannon Bd. & Care Home, Inc. v. W

. Va. Dep't of

Health & Human Res. , 532 U.S. 598 (2001))

. "Minimal relief rese mbling ' an i n t er l o cu tory ruling that

reve rses d i s m issal for failure to state a claim' or a ' reve rsal of direc ted verdic t' will not satisfy statutory require ments to achie ve preva iling party status." Id. at 1357 (quoting Buc k h a n n o n , 5 3 2 U

. S.
at 605); Ake rs v. Nicholson , 409 F.3d 1356, 1360 (F ed. Cir. 2005) (holding that a rema nd due to an interven i n g Court decision did not rende r the appellant a preva iling party for EAJA purposes); Halpern v. Principi , 384 F.3d 1297, 1306 (F ed. Cir. 2004) (finding no preva iling-pa rty status when
appea l resulted in a r emand with dire ctions to dismi ss for lac k of jurisdiction). I n asser ting preva iling-pa

rty status, Mr. Gar sow re l i es i n part on Former Employe es of Motorola Ceramic Products v. United States ( Former Employe es ), 336 F.3d 1360 (F ed. Cir. 2003), for the proposition that, althoug h a rema nd order g ener ally does not confe r preva iling-pa rty status,

a "r em an d to an administrative ag ency is differ ent" beca use a "c ourt proce eding is trea ted as a separ ate proce eding from the administrative proce eding ." See Appellant 's Supplemental Memorandum at 5 (quoting Former Emps. , 336 F.3d at 1364-65). Mr. Gar sow' s relianc e, howeve r, is misplaced. Former Employe es held that rema nds to adm i n i strative ag encie s are differ ent from traditional rema

nds and may constitute relief on the merits if the plaintiff secur es a rema nd requiring further agency procee dings "( 1 ) wi thout reg ard to the outcome of the ag ency proce eding s wher e there has been no rete ntion of jurisdiction by the court, or (2) wh en succe ssful in the rema nd
proce eding s wher e there has been a rete ntion of jurisdiction." Former Emps. , 336 F.3d at 1365. One
g laring differ ence in Mr. Gar sow' s case is that his appea l did not result in a rema nd to the Boa

rd (the lower administrative ag ency ); it resulted only in the (1) vacation of the J anuar y 2012 Boa

rd decision and (2) termination of the appea l. See Garsow , No. 12-548 (M ay 9, 2012, Orde r at 1-2 (" [I ]t is ORDERED that the parties' joint motion to vacate the J anuar y 23, 2012, Boa

rd decision is g rante d.") and Parties' Mar. 5, 2012, "Joint Motion to Vac ate the Boa rd

. . . Dec ision and Dismiss the Appea l")

. The Court' s g rant of the parties' J MV requir ed no further Ag ency action and the ref

ore no r elief on the merits under Former Employ ees
. We also find Halpern to be the more instructive and analog ous case . I n Halpern , the U.S. Court of Appea ls for the Fe dera l Circuit (F eder al Circuit) held that the vacatur of a Boa rd decisionfo r l ac k of orig inal jurisdiction and rema nd for the Boa

rd to dismiss the action did not rise t o t h e level of some relief on the merits of the claim sufficie nt to c onstitut e pre vailing- party status under EAJA. 384 F.3d at 1306. As the Fe dera l Circuit noted, there was no judgme nt on the merits of the claim; the case was mere ly rema nded for the Boa

rd to dismiss the action for lack of jurisdiction. Id

. Simi larly here , the parties' J MV, and the Court's order g ranting the J MV, did not addre ss the merits of any part of Mr. Gar sow' s claim for benef its ; i t mere ly prese nted an ag ree ment that the parties believed the J anuar

y 2012 Boa

rd decision was ultra vires and should be vacated – and vaca ting the Boa rd decision is all that was g rante d. We see no prac tical differ ence betwee n the vaca tur of a Boa

rd decision and rema

nd instructing the Boa

rd to dismiss an action for lack of jurisdiction in Halpern , and the Court's vaca tur of Mr. Gar sow' s J anuar y 2012 Boa

rd decision for lack o f j u ri s d iction – in both case s the Boa

rd decision at issue was nullified by the Court's actions. Succinctly stated, as there

was no judgme nt on the merits of the claim or claims at issue in Halpern , t h er e was simil arly no judgme nt on the merits of Mr. Ga rsow' s claims here

. We also note gene rally that "' an int erloc utory ruling that reve rses a dismiss al for failure to
state a claim' or a ' reve rsal of a direc ted verdic t' will not satisfy the statutory require ments to achie ve preva iling party status" beca use eac h provides only minimal relief and no enfor cea ble judgme nt on the merits of a claim. Vaughn, supra. As with reve rsal of a dismiss al for failure to state a claim or

reve rsal of a direc ted verdic t, the vaca tur of the J anuar

y 2012 Boa

rd decision provided only minimal relief with no perma

nent effec t on the m erits of the underly ing claim. Otherw ise stated, the or der
g ranting the J MV contained no holding preve nting the Boa rd from re- enac ting the same merits deter minations as those rende red in the J anuar y 2012 Boa

rd decision. I ndeed, this is demonstrably shown by issuance of t h e Bo ar d 's Fe bruar y 2013 decision t hat again vacated i ts previous gra nt of benef its for neuropa

thy

. Mr. Gar sow also arg ues that the Court's vacatur of the J anuar y 2012 Boa

rd decision de fac to reinstated the November

2011 Boa

rd decision and its a

war d of ser

vice c onnection for

neuropa thy

. This arg ument is not p er s u as i v e. Although the Court's vacatur of the entire J anuar y 2012 Boa

rd decision left in place the November 2011 Boa rd decision awa

rding him benef

its for neuropa thy , the Court did not reinstate his awa rd of benef

its for his claims; rathe r, the Court – without comment on the merits of a

ny claim – simply

vacated the January

2012 Boa

rd decision for lack of jurisdiction,the prec ise and only reme dy soug ht by the parties. I n other words, the Court did not alter the parties'

lega l re l ationship as t o whether benef its ultimately wer e to be awarde d for neuropathy

. Thus, the Boa rd retained it s ability to vacate t he award of benef its for neuropathy and rem an d t h e cl aim for further adjudication, and, onc e the Court re ndere d a dec ision on the a ppeal of the November 2011 Boa rd dec ision, that is ex actly what the B oard did whe n it issued the Febr uary 2013 decision. I n light of the fore g oing, the Court conclude s that Mr. Gar sow is no t a p re v ailing party beca use there was no material altera tion in the parties' leg al rela tionship, and there was no enfor cea ble j u d gm en t on the m erits t hat resulted from the Court's order gr anting the parties' J MV based on a

lack of jurisdiction. See V

aughn , supra
.

III. CONCLUSION Acc ording ly , we hold that Mr. Ga rsow is not a pre vailing pa rty , and his EAJA application is DENI ED.

L ANCE, Judge , dissenting : Wit h due respe ct for my colleag ues, as I would ho l d t h at t he appellant is a preva iling party , I must dissent. To be a preva iling party , and to be broug ht acr oss the threshold so as to be entitled to "r easona ble" attorney fee s and expenses, the appellant need only
preva il "on any signific ant issue in litigation which achie ves some of the benef it the parties soug ht in bring ing suit." Hensley v. Eck erhart , 461 U.S. 424, 433 (1983) (stating that preva iling-pa rty status is a "g ener ous formulation that bring s the plaintiff only acr oss the statutory threshold" ). This Court has stated that "in order to attain preva iling-pa rty status, a party is require d to rec eive at least some relief on the merits of his cla i m ." Sumner v. Principi , 15 Vet.App. 256, 261 (2001) (en banc) (interna l quota tion mar

ks omitted). This Court has also emphasized that whether an appe llant is a preva iling party depends on whe t h er the relief obtained from the Court repr esents a materia l al t er at i o n in the relationship betwee n the parties on the m erits. Zuberi v. N icholson , 19 Vet.App. 5 4 1 , 547 (2006). Zuberi further descr ibed this require ment as one that require s the appellant t o

rec eive either "( 1) the ultimate rec eipt of a benef its that was soug ht in bring ing the litigation, i.e., the

awa rd of a benef it, or (2) a court re mand pre dicated upon a dminist rative e rror ." Id. at 544. This case can be viewed throug h two distinct lenses, either of which result in a holding thatthe appellant is a preva iling party

. The most applicable test for this unusual situation is whe ther

nullify ing the J anuar

y 2012 Boa

rd decision repres en t s a m ater ial altera tion in the rela tionship betwee n the par

ties on the merits. Id. at 547. First, with r espec t to the appellant' s claim for disability compensa tion be nefits for bilatera l hear ing loss, it is true that the January 2012 Boa

rd dec ision again denied the a ppellant' ' s claim, as h ad the Boa

rd previously in November 2011. Howeve r, I believe the majority understate s t h e importance of the Court's vaca tu r. Vac ating the J anuar y 2012 Boa

rd decision in this case was

nece ssary for the underly ing appea l of the No v em b er 2 011 Boa rd decision to be rema

nded in

acc ordanc e with the parties' joint motion for partial rema nd (JM PR). Henc e, the nullification of the

4 J anuar y 2012 Boa

rd decision was nece ssary to the ultimate relief recei v ed o n t h e merits of the orig inal appea l. See Zuberi , 19 Vet.App. a t 547. Second, as to that aspec t of t he J anuar y 2012 Boa rd decision, which in no uncer tain terms "va cate d" the November 2 0 1 1 B o a r d d e c is io n " g

r a n ti n g s e r v ic e c o nn e c tion for periphe ral neuropa thy of the rig ht a

nd left lower extremiti es," Michae l J

. Garsow , BV A 08-07-573, at 11 (Jan. 23, 2012) (empha sis a dded), the parties ag ree d that the Boa rd' s decision was issued without jurisdiction and should be vac ated a ccor dingly

. See Marc h 5, 2012, J oint Motion to V aca te. I would hold that the Court's vaca

tur of a Boa

rd decision that vacates a prior grant of benef its, ag ree d upon by the parties to be issued ultra v ires, is suf ficient for the appellant to be broug ht acr oss the threshold so as to be entitled to "r easona

ble" attorney fee s and expenses. See Hensley , 461 U.S. at 433. Whil e the majority appea

rs to question corr ectne ss of the parties—a nd the Court—in the underly ing litigation,

see ante at 3, that horse has left the barn, and the Court's order g ranting the parties' joint motion to

vacate is the mandate of the Court. See Hensley , 461 U.S. at 437 (" A re q u es t fo r attorney ' s fee s should not result in a second major litigation." ). I also disag ree with the majority ' s relianc e on Halpern v. Principi , 384 F.3d 1297 (F ed. Cir.

Indeed , do cketed un der nu m ber 12 -103 , the un der ly ing app eal inv olving the Novem ber 20 11 Bo ard decisio n 4 reflects that the par ties' JM P R, filed on Marc h 5, 20 12 , w as or igin ally granted by the Court on Marc h 9, 20 12

. How ever, three da y s later, the Court issu ed an ord er r ecalling m andate and holding that the Marc h 9, 20 12 , o rd er w as " issu ed in
err or and w ill be revoked. " Garsow v. Sh inseki , U.S. Vet. A pp . No. 12-01 03 (Mar. 12, 2012 ) (un published orde r). It
w as then not un til after the Co urt issu ed its M ay 9, 20 12 , or der vacating the B oar d's d ecision on a p p e al in the ins tant c a se , t ha t the Court ultim ately issu ed the or der grantin g the par ties' JM P R in the un der ly ing app eal. See Garsow v. Sh inseki , U.S. Vet.App. No. 12 -010 3 ( May 22 , 2 01 2) (unpublished or der ).2005), here , as that case is inapposite. Unlike Halpern, the Court here did not "me rely rema nd[] this

case for the Boa

rd to dismiss this action for lack of juri s d i ct i o n
. " Id

. at 1306. Rather, the Court
vacate d the Boa

rd' s J anuar

y 2012 decision, which ef fectively sever ed the Boa rd' s previous November 2011 awa

rd of service connec tion. I n light of this, I cannot endorse the majority ' s view. The majority provides no explanation for how its conclusion—that "the Court's vaca tur of the entire J anuar y 2012 Boa

rd decision left in place the November 2011 Boa rd dec i s ion awa

rding [t he appellan t ] b enef

its for neuropa thy ," ante at 6—does not repr esent a materia l altera tion in the rela tionship betwee n th e p ar t i es o n the merits. Zuberi , 19 Vet.App. at 547. Contrary to the majority ' s tortured e x planation, the Court' s vaca tur of the J anuar

y 2012 Boa

rd decision resulted in

a re storation of the g rant of se rvice connec tion awar ded in the Nove mber 2011 B oard de cision. The majority put much stock in the Boa rd' s ability to replica t e t h e fi ndings of the J anuar y 2012 Boa rd decision in a subsequently issued Boa rd decision that is not befor e the Court in this case
. Ante at 6-7. Assuming that the Court could consider such subsequent Ag ency action in this case , but

see 38 U.S.C. § 7252(b), the Boa rd' s issuance of a new decision (exercising its independe nt authority
to vaca te a prior Boa

rd decision under 38 C.F.R. § 20.904 ), which rea ches the same result, has no 5 bearing on whether

the appe llant is a preva iling par ty in the instant appea l. Despite the majority ' s view that "the vacatur of t he J anuar y 2012 Boa

rd decision provided only minimal relief with no permane nt effect on the merits of the underly i n g cl ai m , " ante at 6 (empha sis added) , as the majority plainly rec og nizes: "w here as the November 2011 Boa rd granted service connec tion for [t he appellant' ]s neuropa thy , the J anuar y 2012 Boa

rd remande d this issue for further development," id. at 2 (empha sis added)

. These statements by the majority are irrec oncilable, and the r elief he re w as per manent until the Boa

rd issued a new

decision pursua

nt to § 20.904. Finally , I note t hat t he majority ' s h o l ding appea rs at odds with this Court's casela w, which has held that a rea sons-or-ba ses rema nd repr esents "a materia l altera tion in the rela tionship betwee n the parties on the merits," reg ardle ss of the fac t that such a rema nd may not result in any "pe rmane nt" relief

. See Zuberi , 19 Vet.App. at 546-57 (a rema nd based on proce dural err or—such as a rea sonsSection 20 .90 4 of title 38 , Code of Feder al Regu lations pr ovides t ha t , under certain circum stances, " [a] n 5 app ellate decisio n m ay be vacated by the Bo ard

. . . at any tim e upon req uest of the app ellant or his or her rep resentatives , or on the B oar d's ow

n m otio n."or-ba ses defic iency —is more than just an opportunity for furt h er ad j u d i cation; it is a materia l altera tion of the leg al rela tionship betwe en the par ties that confe rs pre vailing- party status). Given that the C ourt has held that a rea sons-or-ba ses re mand satisfies the test for preva iling party status, complete nullifica tion of a B oard de cision must dictate the same r esult. Ultimately , it is clea

r that the EAJA was meant to allow claimants to challeng e unlawful Gover nment actions without being deter red by the costs associate d with litigation. See Scarborough

v. Principi , 541 U.S. 401, 406 (2004) (citing note following 5 U.S.C. § 504 (" I t is the purpose of this title

. . . to diminis h the deter rent eff ect of seeking revie w of, or defe nding ag ainst, g overnme ntal action

. . . .") ). There is no questi o n t h at the parties ag ree d that the Boa rd' s decision here was unlawfully issued. There fore , this is exac tly the ty pe of situation wher e an awa rd is appropr iate, as veter ans should not be deter red f rom seeking to nullify

such dec isions. Parenthe tically , I note that the Secre tary initially ag ree d to pa y $796.26 in a

ttorney s fee s to the appellant and the parties wer e "at peac e" with one another

. Secre tary ' s May 18, 2012, Response. On l y afte r extensive delay in this Court, over matters not raised by either of the parties, has t h i s matter re ache d resolution. I would awa

rd the $796.26 in fee s to the appellant as reque sted, a mere fra ction of the costs incurre d in the "ove r proc essing " of this appeal thru no f

ault of either

party

.