UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

NO. 98-1375

JIMMIE HARVEY, JR., APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and FARLEY and IVERS, Judges.

O R D E R

On September 19, 2000, the Court issued an opinion affirming the June 15, 1998, Board of

Veterans' Appeals (Board) decision that denied the appellant's application for Service Disabled

Veterans' Insurance on the grounds that the veteran failed to meet the basic criteria for entitlement

to such benefits. Harvey v. Gober, 14 Vet.App. 137 (2000). On November 7, 2000, judgment was

entered.

On November 15, 2000, following the enactment of the Veterans Claims Assistance Act of

2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (hereinafter VCAA), the Court

automatically recalled judgment as to the September 19, 2000, decision pursuant to In Re: Veterans

Claims Assistance Act of 2000, Misc. No. 4-00, 15 Vet.App. 27 (2000) (en banc order). On April

30, 2001, the Court ordered the parties to submit supplemental briefs addressing the effect, if any,

of the VCAA upon this case. Both the veteran and the Secretary have done so. The Court finds that

the VCAA may be applicable to the veteran's claim. 

The VCAA affects sections of chapter 51 of title 38 of the United States Code, which provide

the general administrative procedures for VA to follow in processing claims for veterans benefits.

In particular, 38 U.S.C. § 5103(a), as amended by § 3 of the VCAA, obligates VA to give notice to

claimants of the required information and evidence that must be submitted to substantiate a claim.

The veteran's claim, as noted above, may be affected by the amended provisions, and it is not the

function of this Court to determine in the first instance which version of the law is most favorable

to the claimant. See Baker v. West, 11 Vet.App. 163, 169 (1998). Accordingly, a remand is required

in order to provide the Board with an opportunity to readjudicate the veteran's claim. See generally

Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991) (when law or regulation changes after claim

has been submitted, but before administrative or judicial appeal process has been concluded, version

that is most favorable to claimant must be applied unless Congress provided otherwise).

On remand, the veteran is free to submit additional evidence and argument necessary to the

resolution of his claim. See Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
2

order). The Board shall proceed expeditiously in accordance with section 302 of the Veterans'

Benefits Improvement Act, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994) (found at

38 U.S.C. § 5101 note) (requiring Secretary to provide for "expeditious treatment" of claims

remanded by Board or Court). See Drosky v. Brown, 10 Vet.App. 251, 257 (1997). If circumstances

warrant, the Board is authorized and obligated to remand the claim to the VA regional office for

further development. See 38 C.F.R. § 19.9(a) (2001); Littke v. Derwinski, 1 Vet.App. 90, 93 (1990).

Upon consideration of the foregoing, it is

ORDERED that the Court's September 19, 2000, opinion is withdrawn. It is further

ORDERED that the Board's June 15, 1998, decision is VACATED and the matter is

REMANDED for further adjudication.

DATED: December 4, 2001 PER CURIAM.