UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 02-1127

STEVEN W. HOMAN, APPELLANT,

AND

NO. 02-1128

JAIMEE M. HOMAN, APPELLANT,

V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before FARLEY, IVERS, and GREENE, Judges.

O R D E R

The appellants are the son and daughter of the veteran, Steven C. Homan. On May 31, 2002,

the Board of Veterans' Appeals (Board orBVA) issued two separate decisions regarding their claims

for benefits. In the decision regarding the son, the BVA dismissed a claim for entitlement to

education assistance benefits under chapter 35, title 38, U. S. Code, for periods of enrollment during

the period before April 7, 1998. In the decision regarding the daughter, the BVA dismissed a claim

for entitlement to education assistance for periods of enrollment from August 28, 1995, to March

30, 1997. Through the same counsel, the appellants filed separate appeals from their respective BVA

decisions. In an order issued on September 12, 2002, the Court granted an unopposed motion filed

by the appellants to consolidate their appeals.

On October 15, 2002, the Secretary filed the designation of the record on appeal (ROA). On

December 18, 2002, the appellants filed a motion to compel the Secretary to transmit, as the ROA,

a complete copy of the appellants' claims files ("C" files). In their motion, the appellants argue that

a December 6, 2002, amendment to 38 U.S.C. § 7261 "effectively negate[s]" the need for the

designation and counterdesignation of the ROA and requires the submission of each of the

appellants' complete "C" files as the ROA. Appellants' Motion (Mot.) at 1-2. Further, the appellants

assert that the Court should remove Rule 10 and amend Rules 11 and 33 of the Court's Rules of

Practice and Procedure. Id. Because the counsel for the appellants has filed similar motions in more

than 40 other appeals pending before the Court, the motion was referred to a panel for disposition.

On January 2, 2003, the Secretary filed his response in opposition to the appellants' motion.

The Secretary argues that the amendment to 38 U.S.C. § 7261 does not require that a complete copy
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of the "C" file be transmitted. Rather, the Secretary argues, the amendment "is in harmony with

long-standing law and is merely a restatement of the language already contained in § 7252(b)."

Secretary's Response at 4.

The amendment referenced by the appellants and the Secretary is found in title IV of the

Veterans Benefits Act of 2002, Pub. L. No. 107-330, 116 Stat. 2820 (Dec. 6, 2002). The act

amended section 7261(b) to read as follows:

(b) In making the determinations under subsection (a), the Court shall review

the record of proceedings before the Secretary and the Board of Veterans' Appeals

pursuant to section 7252(b) of this title and shall– 

(1) take due account of the Secretary's application of section 5107(b)

of this title; and

(2) take due account of the rule of prejudicial error. 

See Pub. L. No. 107-330, tit. IV, § 401(b), 116 Stat. 2832 (to be codified as amended at 38 U.S.C.

§ 7261(b)). As the Secretary points out in his opposition to the appellants' motion, 38 U.S.C.

§ 7252(b) has always provided that "[r]eview in the Court shall be on the record of proceedings

before the Secretary and the Board."

The Court is not persuaded that the amendment to section 7261 deprives counsel of his

opportunity or relieves him of his obligation to participate in the process of preparing the ROA. To

the contrary, the Court agrees with the Secretary that the amendment merely restates language

currently found in 38 U.S.C. § 7252(b). The inclusion of the "record of proceedings" language of

section 7252 into section 7261 did not effect the sea change advocated by these appellants. 

Nor is there anything in the legislative history to support the appellants' assertion that the

amendment requires the Court to make a "searching review" of a veteran's entire "C" file.

Appellants' Mot. at 2. Indeed, as the Joint Explanatory Statement of the compromise agreement

passed by the Congress makes clear regarding the amendment to 38 U.S.C. § 7261(b), the focus of

the "searching review" was upon BVA decisions, not "C" files: 

New subsection (b) would maintain language from the Senate bill that would

require the Court to examine the record of proceedings before the Secretary and the

BVA and the special emphasis during the judicial process on the benefit of the doubt

provisions of section 5107(b) as it makes findings of fact in reviewing BVA

decisions. . . . The combination of these changes is intended to provide a more

searching appellate review of BVA decisions, and thus give full force to the "benefit

of the doubt" provision.
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148 CONG. REC. H9006 (daily ed. Nov. 14, 2002) (Explanatory Statement on House Amendment

to Senate Bill, S. 2237) (emphasis added).

In his statement to the Senate urging passage of the compromise agreement, Senator

Rockefeller, Chairman of the Senate Committee on Veterans' Affairs, stated:

Section 401 of the Compromise Agreement would maintain the current

"clearly erroneous" standard of review, but modify the requirements of the review the

court must perform when making determinations under section 7261(a) of Title 38.

[The court] would be specifically required to examine the record of proceedings–that

is, the record on appeal–before the Secretary and the BVA. Section 401 would also

provide special emphasis during the judicial process to the "benefit of the doubt"

provisions of section 5107(b) as [the court] makes findings of fact in reviewing BVA

decisions. The combination of these changes is intended to provide for more

searching appellate review of BVA decisions, and thus give full force to the "benefit

of doubt" provisions.

148 CONG.REC. S11334 (daily ed. Nov. 18, 2002)(statement of Sen. Rockefeller) (emphasis added).

A "searching appellate review of BVA decisions" would hardly be accomplished by requiring

this Court to wade through a morass of pages from a claimant's "C" file irrelevant to the issues on

appeal. The Court finds nothing in the plain language of the amendment or the legislative history

to suggest that Congress intended such a waste of both the public fisc by requiring the Secretary to

copy mounds of extraneous paper from entire "C" files and this Court's judicial resources by

requiring the Court to examine heaps of irrelevant documents needlessly amassed in ROAs. Nor is

there anything in the language of the statute or the Joint Explanatory Statement which lends even a

modicum of support to the appellants' suggestion that Congress somehow relieved their counsel of

his professional obligation to assist, on their behalf, in the preparation of the ROA. 

Rather, when counsel who is familiar with the "C" file and material the BVA has considered,

and who is schooled in the concepts of relevancy and materiality, provides an informed designation

(and, if necessary, a counterdesignation) of relevant documents, the Court, the appellants, and the

process of judicial review itself are far better served. This process, which is consistent with the

practice followed by all other Federal courts of appeal responsible for performing judicial review of

agency actions (see, e.g., FED. R. APP. P. 10), provides counsel with the opportunity to ensure that

issues important to his client are not clouded by superfluous matter crowding the ROA. 

 In King v. Brown, 5 Vet.App. 19 (1993), we explained why Rule 10 of this Court's Rules

of Practice and Procedure specifically states that "the record on appeal may not include materials not

relevant to the issues on appeal": 

[I]t is imperative that a distinction be drawn between the record on appeal and a

veteran's claims or "C" file; the larger "C" file can contain a plethora of documents
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having nothing to do with the claim or claims on review. Those documents, being

irrelevant, are not necessary to a resolution of the claim on appeal and are not proper

for designation for inclusion in the record on appeal. An increasing number of

records on appeal have contained irrelevant, duplicative, unintelligible, and, in at

least one case, extraneous privacy-sensitive material. 

. . . . 

. . . The designation process must not be viewed as an undisciplined dumping

of documents from the "C" file as if the record on appeal were a bin into which the

Secretary [or the appellant] pours documents which he guesses have been, or believes

should have been, considered by the Board. The integrity of judicial review in this

Court depends on the quality and completeness of the record on appeal. Quality and

completeness, in turn, depend on the identification of all of the material of record

which was "before the Secretary and the Board" and which is relevant to the issue(s)

on appeal. 

King, 5 Vet.App. at 22-23. The Court's reasoning in King as to why the ROA should not consist of

the entire "C" file remains sound and, if anything, it is strengthened in force by the recent amendment

to section 7261(b) and Senator Rockefeller's emphasis on the "record on appeal." Having found

nothing to support the appellants' arguments that the Court depart from its longstanding practice of

requiring that only relevant material be included in the ROA, we will deny the appellants' motion

and decline, as well, their invitation that we remove Rule 10 and amend Rules 11 and 33. 

Accordingly, it is

ORDERED that the appellants' motion to compel is denied. It is further

ORDERED that, within 30 days after the date of this order, the appellants file with the Clerk

and serve on the Secretary a counterdesignation of the record or a statement that the appellants accept

the content of the record as designated by the Secretary. It is further

ORDERED that these appeals are returned to the single judge for further proceedings.

DATED: February 11, 2003 PER CURIAM.