## United States Court of Appeals for the Federal Circuit

05-7116

WILLIAM J. KELLY, Claimant-Appellant,

v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

Richard R. James , of Glen Allen, Virginia, argued for claimant-appellant. On the brief was Sandra E. Booth , of Columbus, Ohio. Marla T. Conneely , Trial Attorney, Commercial Liti gation Branch, Civil Division, United States Department of Ju stice, of Washingt on, DC, argued for re spondent-appellee. With her on the brief were Peter D. Keisler , Assistant Attorney General, David M. Cohen , Director, and Todd M. Hughes , Assistant Director. Of c ounsel on the brief were Michael J. Timinski , Deputy Assistant General Counsel, and Martin J. Sendek , Staff Attorney, United States Department of Veterans Affairs, of Washington, DC. Appealed from: United States Cour t of Appeals for Veterans Claims Judge Jonathan R. Steinberg (Retired)

## United States Court of Appeals for the Federal Circuit

05-7116

WILLIAM J. KELLY, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee.

__________ ________________ DE CIDED: September 13, 2006

__________________________ Before NEWMAN, MAYER, and RADER, Circuit Judges

. Opinion for the court filed by Circuit Judge MAYER. Dissenting opinion filed by Circuit Judge RADER. MAYER, Circuit Judge

. William J. Kelly appeals the judgment of the United States Court of Appeals for Veterans Claims denying his application for reimbursement of lega l fees and expenses under the Equal Access to Justice Ac t (“EAJA”), 28 U.S.C. § 2412(d). Kelly v. Principi , No. 99-191(E) (Ct. App. Ve t. Cl. Oct. 28, 2004). We reverse and remand.Background In May 1989, Kelly filed a claim that he had balanc e problems and had been exposed to Agent Orange dur ing his s e rvic e in Vietnam. The Department of Veterans Affairs (“VA”) Regional Office (“RO”) subs equently informed him that his submission was insufficient and t hat he was required to specify a disabilit y. Kelly responded that he suffered from “a developmental nerve problem” that required him to stop working. He said he was being treated but had not received a diagnosis from his doctors. VA made a progress note in July 1989 of “hypertens ion and ataxia, post Agent Orange,” and Kelly underwent a VA exam ination in November 1989, whic h dia gnosed him with dysthimia, secondary type and c e rebellar ataxia. He also underwent a VA n eurology examination in July 1990, which noted an impressi on of ataxia and a possibility of olivopontoc erebellar atrophy (“OPCA”). He was again examined in Augus t 1990 and was diagnosed with OPCA. He also s u bmi tted a July 1982 medical record from a private hos pital indic a ting that he suffered from chronic cer ebral at axia of undetermined etiology. See K e lly v. Princip i , No. 99-191 ( C t. App. Vet. Cl. Feb. 6, 2004) (providing a summary of medical evidence bef ore the VA). The RO issued a rating decision in Apr il 1994 denying Kelly ’s service connect i on claim. It stated that Kelly c l aimed se rvice connec tion for an unname d condition manifested by weakness in the legs, and the condition was s ubse quently diagnosed a s OPCA. Ke lly ap pea le d the RO’s decision to the Board of Ve terans’ Appeals, express i ng disagreem ent with the “denial of his claim [fo r service connection] [ ] exposur e to Agent Orange.” The board remanded the claim f o r additional dev elopment and directed the

05-7116 2RO to have Kelly examined by a neurologis t “ [i]f and only if [Kelly’s] claim is found to be well grounded.” On remand, the RO obtai ned additional medical docum entation. Kelly als o underwent a brain and spinal cord VA examination in Dece mber 1997. Th e RO again concluded that olivopontoc erebellar degeneration was an appropriate diagnosis and that it was a familial disor der with no known relation ship to Ag ent Orange exp o sure

. The case was returned to t he board, which conc luded Ke lly ’s claim was not we ll grounded and thereby denied entit lement “to service connec tion for olivopontoc erebellar atrophy.” In re Kelly , No. 99-191 (Bd. Vet. App. De c. 31, 1998). Th e board reasoned that there was “no competent evidence that [his OPCA] was present in service, compensably disabling within one year afte r separation from service or otherwise related to service, including herbicide exposure.” Id. at 3. It also noted that his condition was not one that is presumed to result from Agent Orange expos ure. Id. at 9. Kelly appealed to the Veterans C ourt. While the appea l was pending, the Veterans Claims Ass i s t ance Act of 2000 (VCAA) , Pub. L. No. 106- 475, 114 Stat. 2096, was enacted. In light of this, on January 5, 2001, the c ourt vacated and remanded the board’s decision with respect to the “claim fo r . . . service connection for [OP CA].” Kelly also argued that the RO and board had failed to consider his diagnosis of cerebellar ataxia. The court, however, said that his notice of disagreement (“NOD”) wa s insufficient to confer it with ju risdiction over that claim. Kelly v. Gober , No. 99-191 (Ct. App. Vet. Cl. Jan. 5, 2001). Kelly then filed a motion for reconsideration and for panel review. The government opposed both r equests. The motion for recons ider ation was denied in a

05-7116 3single-judge order, w h ich again concluded that the NOD was inadequate to confer jurisdiction over Kelly ’s ataxia c l aim. Kelly v

. Principi , No. 99-191 (Ct. App. Vet. Cl. Oc t. 10, 2001). On February 28, 2002, the motion fo r panel review was granted. In light of Congress’ repeal of th e NOD jurisdiction requirement on Dec e mber 27, 2001, Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, § 603(a), 115 Stat. 976, 999, the panel reinst ated Kelly’s appeal with respect to his ataxia c l aim. The pane l said that although it rein stated the appeal on the at axia gr ound, it made “no determination as to (1) whether [ he] ever m ade any formal or informal claim for service connection for ataxia; (2) if [he] did make such a claim, whether that claim wa s reasonably raised to t he Board; and (3) if [ he] did not reasonably raise that claim to the Board, whether there is a final Board decis ion as to any such c l aim that is reviewable by this Court.” Kelly v. Principi , No. 99-191 (Ct. App. Vet. Cl. Feb. 28, 2002). The case was returned to the original j udge who noted that t he original remand with respect to what he termed the “OPC A service-connection claim” remained operative. With respect to the ataxia diagnosis, whic h t he panel had reins t ated, the court stated that Kelly “essentially argues that his sym ptomotolog y – balanc e problems and a development al nerve problem, for wh ich he received treatment at a V A hospital

. . . in October 1989, and for whic h he applied for service connec tion in May 1989 – is attributable to ataxia, as to which the record on appeal contains a VA diagnosis rendered on July 13, 1989 and again on November 14, 1989.” Kelly v. Princip i , No. 99-191, at 2 (Ct. App. Vet. Cl. Feb. 6, 2004) (“ Ataxia Remand Order ”) (citations omitted). In light of this discu ssion, it held that “[Kelly’s] pending claim for service connection for neurological problems related to Agent Orange exposure has

05-7116 4never been limited to a particular diagnos is in such a way as to preclude him from having VA develop his claim for a possible at axia diagnosis and c onsider whether such a condition should be aw arded service connection.” Id. at 3. The court, however , declined to address this issue in the first in stance and remanded it, stating: “If [he] raises to t he Board an argumen t that his ataxia resulted in his symptoms, the Board (and RO, after any appropriate remand thereto) must cons ider that argument. In addition, . . . the Board (and the RO) must fully develop the ataxia matter as well as [his] OPCA claim in accordance with 38 U.S.C. §§ 5103(a) and 5103A and 38 C.F.R. § 3.159 before readjudicating the case, and then must reach a conclus i on on that matter.” Id. Kelly filed an applicat ion fo r reimbursement of attorneys’ fees and e x penses under EAJ A for his ataxia c l aim. The Veterans Court deni ed the application, determining that he was not a “prevailing party.” Kelly v. Princip i , No. 99-191, at 2 (Ct. App. Vet. Cl. Memorandum Decision Oct. 28, 2004; Judgment Dec. 21, 2004) (“ EAJ A Order ”). K e lly appeals, and we exer cise jurisdiction pur suant to 38 U.S.C. § 7292(a). Discussion We review the Veterans Court’s interpretation of EAJA de novo

. Vaughn v. Princip i , 336 F.3d 1351, 1354 (F ed. Cir. 2003). Ou r review is limited by statute, under which we “shall decide all relev a nt questions of law, in cluding interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d). Howev e r, unless addressing a constitutional issue, we may not review fa ctual determinations or the applicat ion of la w to the facts

. Id. at § 7292(d)(2). “We have recogniz ed, however, that where adoption of a particular legal standard dictat es the ou tcome of a c a se bas ed on undispu t ed facts, we may address that iss ue as a question of law.” Halpern v. Principi , 384 F.3d 1297,

05-7116 51306 (Fed. Cir. 2004) (citing Brandenburg v. Principi , 371 F.3d 1362, 1363 (Fed. Cir. 2004); Bailey v. Principi , 351 F.3d 1381, 1384 (Fed. Cir. 2003)). Under EAJ A , a “prevailing party” in a c i vil ac tion is entitled to attorneys’ fees and expenses unless the government ’s positio n was substantially justified. 28 U.S.C. § 2412(d)(1)(A). * “The essential objective of the EAJ A [is] to ensure that persons will not be deterred from seeking review of, or defending against, unjust ified governmental action bec ause of the expense involved in t he vindic a tion of their rights . . . .” Johnson v. Gonzales , 416 F.3d 205, 208 (3d Cir. 2005) (quoting Clarke v. Immigration & Naturalization Serv. , 904 F.2d 172, 178 (3d Cir. 1990)); see also Sullivan v. Hudson , 490 U.S. 877, 883 (1989). Removing such dete rrents is imperative in the veterans benefits context, whic h is intended to be uni quely pro-claimant, Hodge v. West , 155 F.3d 1356, 1362-63 (Fed. Cir. 1998) (citations omitted); Collaro v. West , 136 F.3d 1304, 1309-10 ( F ed. Cir. 1998), and in which veterans generally are not represented by counsel before the RO and the board, see 38 U.S.C. § 5904(c)(1) (prohibiting attorneys’ fees prior to a final board dec ision). EAJA is a v i tal complement to th is system designed t o aid veter ans, because it helps to ensure t hat they will seek an appeal whe n

* 28 U.S.C. § 2412(d)(1)(A) provi des: Exc ept as otherwise s pecifica lly provided by statute, a court shall award to a prev ailing party other than the United States fees and other expenses , in addition to any costs awarded pursuant to subsection (a), incurred by that party in any c i vil action ( o ther than cases sounding in t o rt), including proceedings for judicial review of agency ac tion, brought by or against the United States in any court having jurisdiction o f that action, unless the court finds that the position of the United States was substa n t ially justified or that special circumstances make an award unjust.

05-7116 6the VA has failed in its duty to aid them or has otherwise erroneo usly denied them the benefits that they have earned. To be con s idered a “prevailin g party” entitled to fees under EAJA, one must secure “some relief on the merits.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res. , 532 U.S. 598, 603 (2001); Former Employees of Motorol a Ceramic Prods. v. United States , 336 F.3d 1360, 1364 (Fed. Cir. 2003) (“ Former Employees of Motorola ”). Securing a remand to an agen cy can constitute the requisit e success on the merits. “[W]here the plainti ff secures a remand requiring further agenc y proceedings because of alleged error by the agency, the plaint iff qualifies as a prevailing party . . . without regard to the outcome of the agency proceedings where there has been no retention of jurisd iction by the court . . . .” Former Employees of Motorola , 336 F.3d at 1366. Here, Kelly initially filed a claim for se rvice connection for his balance problem s and expos ure to Agent Orange, and he later clarified that he suffered from “a developmental nerve problem.” The m edical recor d s before the RO and board contained two diagnoses for his claim, OPCA and at axia. These diagnos es were not separate c l aims, merely two means of es tablishing the sam e end – t h e service connection claim – and, as the Veterans Court noted in denying his EAJ A claim, Kelly never limit ed his c l aim to a single theory, Ataxia Remand Order at 2. However, the RO only considered the OPCA diagnosis in den ying Kelly’s service connection claim. In light of this history, the Veter ans Court determined that its remand for consideration of the ataxia diagnosis was not based on agency error and denied Kelly’s motion for fees. This conclus i on stems fr om an erroneous int e rpretation of the pre05-7116 7VCAA statutes defining the VA’s duties, particula rly 38 U.S.C. § 5107(b). ** Subsection 5107(b) requires the VA to consider “all evi dence and material of record in a case” before deciding the “merits of an i ssue material to the determination of the ma tter.” This requirement applies not only to de cisions relating to the overall merits of a claim, but by its plain language it applies to all dec isions determining any material issue relating t o the claim. Thus, the VA was obligated to consider all evidence of record before deciding whether Ke lly’s claim was well grounded. Although our precedent holds that the duty to assist veterans under pre-VC AA law does not arise until the veteran establishes a well-grounded claim, Epps v. Gober , 126 F.3d 1464 (Fed. Cir. 1997), we

** 38 U.S.C. § 5107(b) (1994) provided: When, after consideration of all evidence and material of record in a case before th e Department wit h respect to benefits under la ws administer ed by the Secretary there is an approx imate balanc e of positive and negative evidenc e regarding the merits of an issue material to the dete rmination of the matter, the benefit of the doubt in resolv ing each such issue shall be given t o the c l aim ant. Nothing in this subsection shall be construed as shifting from the claimant to the Secretary the burden specif ied in subsection (a) of this section. (emphasis added). At the time Kelly fi led his claim, this identical language was codified at 38 U. S.C. § 3007(b) . After enactment of the VCAA, the language of section 5107(b) was revised as follows: Benefit of the doubt. – The Sec r etary shall consider all information and lay and medic a l evidence of record in a case before the Secr etary with respect to benefits under laws administ e red by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) ( 2000) (emphasis added).

05-7116 8have never held that the VA does not have to consider all evidence of record before making that determination. *** Moreover, i t is wholly irrelevant to our analysis whether Kelly will prevail on his service-connection c l aim on remand. In aw arding attorneys’ f ees and expenses under EAJA, the inquiry is whether he was a prevaili ng party in his “civil action,” not whether he ultimately prevails on his serv ice connection c l aim. Former Employees of Motorola , 336 F.3d at 1366; see also Johns on v. Gonzales , 416 F

. 3d 205 (3d Cir. 2005); Muhar v. Ashcroft , 382 F.3d 653 (7th Cir. 2004). Kelly prev aile d in his c i vil action by securing a remand requiring consideration of his ataxia diagnos is. To impose a requirement that the veteran must succeed on his underlyi ng benef its claim to prevail before the Veterans Court would defy precedent and logi c. Indeed, where the VA has breached it s duty to assist the veteran and failed to devel op a c l aim, or as in this case failed t o consider all evidenc e s upporting a claim, the Veterans Court will necessarily re mand the case to the agency. Cf. Swiney v. Gober , 14 Vet. App. 65, 70 (2000) (noting that “outright reversal on the merits has been very rare” in the Veterans Court). If the veteran prevails on r e mand, the case will never return to the Veterans Court. Thus, if

*** The dissent misreads our opinion as ignoring Vaughn in favor of Former Employees of Motorola , observing that the latter is only applic able when the remand is premised on agency error. We fully recogni ze the “vital difference” between thes e cases, and we have c l early se t f o rth the agency error giving rise to the analysis under Former Employees of Motorol a , namely the VA’s failure to c onsider all evidence and material of record before deciding a material issue on the merits. The dissent fails to explain why this recognition of error is wrong, instead ma intaining that Kelly never presented his “ataxia claim” to the board. As we hav e explained, however, his ataxia diagnosis was not an independent claim; it was merely a diagnosis in support of his claim for service connection. Had the VA cons idered this ataxia evidence (as it was required to by statute), the appeal to the Ve terans Court may not have been required. As such, the remand was due to the agency’s error.

05-7116 9prevailing on the mer i ts of the benefits claim bef ore the Veterans Court were required, there would rarely be a prevailing party despite potentially widespread agenc y error and the purpos es of EAJ A would be evisc e rated. In such circumstances as here, the veteran has already prevailed in the civil action before the Veterans Court by obtaining a remand in light of the agency ’ s error. Former Emp l oyees of Motorola , 336 F.3d at
1365. With respect to the requirement that the remand must require further agency proceedings, Former Employees of Motorol a , 336 F.3d at 1366, there can be no doubt that it was satisfied here with respect to Kelly ’s ataxia diagnos is. The remand order stated: “If [he] raises to t he Board an argument that his atax ia res u lted in his symptoms, the Board (and RO, after any appropriate remand thereto) must consider that argument. In addition, . . . the Board (and the RO) must fully develop the ataxia matter as well as his OPCA claim in ac cordance with 38 U. S.C. §§ 5103(a) and 5103A and 38 C.F.R. § 3.159 before readjudicating th e case, and then m u st reac h a conc lusion on that matter.” Ataxia Rem and Order at 3 (citations omitted). Then, in deny ing attorneys’ fees, it stated that “the Co urt’s F ebruary 2004 order impos ed no requirement upon the Board on r e mand wit h respect to the ataxia matter unless the appellant first raised clearly an argument that his symptoms were attributable to ataxia.” EAJA Order at 6. First, as noted abov e, Kelly does not have an “at a xia claim,” only a s e rvice connection claim. This claim was present ed to the R O and the board, and Kelly als o presented medical ev idence of his ataxia di agnosis supporting it. Thus, t he remand could not have been c o rrectly premised on the ground that he had nev er presented an “ataxia claim” to the RO or board. Moreover, although the court construed its remand

05-7116 10order as merely offering Kelly the option of pursuing his claim on remand in light of his ataxia diagnosis, suc h a distinction is trivia l. Of course Kelly would pursue his ata x ia argument on remand, as he ha s been for over fifteen year s. Howev e r, whether he would pursue his ataxia argument on remand is irrelev ant becaus e a party securing a remand always has the option of pursuing or abando ning the c a se. Such an option does not m ean that a remand order does not require further agency action. It would be incongruous to allow courts to make an end run around the purpos es under l ying EAJA by making such trivial distinctions and m a sking its actions in artfully worded orders

. Here, the court erred by doing just that. Finally, we conclude that the government’s position was not substantially justified so as to prohibit the award of fees. 28 U. S.C. § 2412(d)(1)(A). In considering whether its position was substantially justified, we c onsider not only “the position taken by the United States in the civil acti on, [but also] the action or fa ilure to act by the agency upon which the c i vil action is based. ” 28 U.S.C. § 2412(d)(2)(D). Kelly presented evidenc e of his ataxia diagnosis in support of his se rvice connection claim, and this evidence was ignored by the agency in denying it. Such a failure to consider evidenc e of record cannot be substantially justified. In light of the foregoing, we reverse t he Veterans Court’s denial of fees and expenses. On remand, the fees and expenses awar ded will inc l ude those incurred in pursuing the EAJA action. Former Employees of Mo toro la , 336 F.3d at 1368 n.3.

05-7116 11Conclusion Accordingly, the judgment of the United States Court of Appeals for Veterans Claims is reversed and the case is remanded for further proc eedings in accor d ance with this opinion.

REV E RS E D AND RE MANDE D

05-7116 12

## United States Court of Appeals for the Federal Circuit

05-7116 WILLIAM J. KELLY, Claimant-Appellant,

v. R. JAMES NICHOLSON, Secretary of Veterans Affairs, Respondent-Appellee. RADER, Circuit Judge , dissenting. This court’s decision defies both t he United States Supreme Court’s, Buckhannon Board & Care Home , Inc. v. West Virginia Department of Health and Human Resources , 532 U.S. 598 (2001), and this court’s own precedent, Vaughn v. Principi , 336 F.3d 1351 (Fed. Cir. 2003), on the “p revailing party” rule of EAJA. The United States Court of Appeals for Veter ans Claims (Veterans Court) correctly determined that Mr. Kelly wa s not a prevailing party bec ause his case was simply remanded after a change in the statute. Mr. Ke lly did not obtain any relief on the merits of his claim. Because the Veterans Court properly applied the law and this court has departed from that law without justification, I must respectfully dissent. Mr. Kelly’s original claim for OPCA was dismissed as not well-grounded. Later, the Veterans Claims Assistance Act of 2000, Pub.L.No. 106- 475, 114 Stat. 2096 (VCAA) eliminated the well-grounded claim r equirement. Thus, the Veterans Court reconsidered and then remanded the claim to t he Board for adjudication under the new law. At this time, the Veterans Court al so noted that it lacked jurisdiction over Mr. Kelly’s cerebellar ataxia claim because Mr. Kelly had not filed a valid Notice ofDisagreem ent (NOD). In other words, he had never presented the clai m to the Board at all. Several months later, the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, §60 3(a), 115 Stat. 976, 999, r epealed section 402 of the Veterans Judicial Rev i ew Act, which requir ed a NOD for Veterans Court jurisdiction. This change in law permitted Mr. Kelly t o reinstate his appeal fo r cerebellar ataxia service connection without a NOD. After th is statutory change br ought a remand, Mr. Kelly seeks attorney fees as a prevailing party. A mere remand based on a change in law, however, does not c o nstitute a victory on the mer i ts entitling him to any relief on his claim or to attorney fees. This remand, like the similar actio n s in Buc k hannon and Vaughn , does not mean that Mr. Kelly prevailed in any sense, let alone on the meri ts of his cerebellar ataxia claim.
In Buckhannon , the Supreme Court stated that a party only prevails upon receipt of “a judgment” which provides “some relief on the meri ts of their underlying claim.” 532 U.S. at 603. Mr. Kelly has not received eit her a judgment or relief on any merits of his cerebellar ataxia claim. In Buc k hannon , as in this case, the Court dismissed a case because the state legislatur e changed the law and thus rendered the claim moot. Id. Buckhannon argued t hat litigatio n had serv ed as a catalyst for the change in law and this dismis sal. Id. at 601-02. To the contrary, the Supreme Court foun d the catalyst theory insufficient because “[i]t allows an awar d where there is no judicially s anctioned change in the legal relations hip of the parties.” Id. at 605. In Vaughn , 336 F.3d at 1355, citing Brick w ood Contractors, Inc. v. United States , 288 F.3d 1371 (Fed Cir. 2002), this court applied Buc k hannon to EAJA. Vaughn then

05-7116 2concluded, in c i rcumstances in distinguishable from this ca se, that a remand because of a change in statute d oes not mean that a party has pr evailed. Vaughn v. Principi , 336 F.3d at 1355. Vaughn’s c l aim involv ed an appeal from a denia l of s e rvice con nection benefits. Id. at 1353. After enactment of the VCAA , Vaughn received a remand. These facts mirror the pertinent facts in Mr. Kelly ’s s i t uation. Although Vaughn’s remand “achieve d a desired result,” id. at 1355-56, this court denied attorneys fees: This court agrees wit h the Veteran’s C ourt’s conclus i ons that appellant’s remands are not judgments on the merits or consent decrees or similar results that qualify as pr evailing under EAJ A [Equal Access to Justice Act] This court further holds that the c a tal yst theory is an improper basis for an award of attorney fees as a “prevailing party” under EAJA. Id. at 1357. By the same token, Mr., Kelly has not received a judgment on the merits or any similar result. This court today ignor es Vaughn , which is directly on point, and cites to Former Employees of Motorola Cera mic Products v. United States , 336 F.3d 1360, 1 3 64 (Fed. Cir. 2003). These two cases, decided on the same day, contain a vital difference. In Former Employees of Motorola , this court indeed conferred pr evailing party status on a litigant after a remand. Id. at 1366. The litigant in Former Employees of Motorola , however, had overturned an alleged agency erro r to obtain the remand. 336 F.3d at 1367-68. Mr. Kelly, however, like Vaughn , obtained a remand based on a change in law, not based on any proof of agency error. The Veterans Court specifically found no Board error on Kelly’s ataxia claim. Majority Opinion, 4. In fact, the Board could not have erred. Mr. Kelly had never presented a claim to t he Board. The issue Mr. Ke lly appealed to the Veterans

05-7116 3Court was not a Boar d denial of his cerebellar ataxia claim. He appea led t he Board’s denial of his original c l aim for OPCA and ra ised the c e rebellar ataxia claim for the first time on appeal. The Veteran’s Court explained: [B]ecause the appellant never pr esented an ataxia c l aim argument to the [regional office] or the Bo ar d the Co urt will n o t entertain this argument in the first instance . . . if the appellant raises to the Board an argument that his ataxia res u lted in his symptoms, the Board (and the [regional office], after an appropriate remand thereto) must consider the argument. Kelly v. Principi , No. 99-191 (Ct. App. Vet. Cl. Feb. 6, 2004). Thus, becaus e Mr. Kelly never presented the Board with any argument on cerebellar ataxia, the Board could not have made a mistake with respect to an argument not presented. Here, the Veterans Court remanded to pr ovide Mr. Kelly a chance to raise his cerebellar ataxia claim in the first instance. As a result of change in law, Mr. Kelly may now proceed without a pr oper NOD. At no point, howev er, had the Board erred or had Mr. Kelly overturned a legal error. Rather, the law changed, as in Buckhannon and Vaughn . As a result of this change in the la w, the Veterans Court reinstated his appeal without deciding any merits or conferring a judgment on the merits. I can see n o alternative other t han that the law of Buckhannon and Vaughn gover n this case.

05-7116 4