UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS 

No. 15-1884(E) 

ALBERT P. BLUE, APPELLANT, 

V. 

ROBERT L. WILKIE, 

ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE. 

On Appellant's Application for Attorney Fees and Expenses 

(Argued January 9, 2018 Decided May 16, 2018) 

Kenneth M. Carpenter, of Topeka, Kansas, with whom Robert B. Goss, of Houston, Texas, 

was on the pleading, for the appellant. 

Mark D. Vichich, Appellate Attorney, with whom James M. Byrne, General Counsel; Mary 

Ann Flynn, Chief Counsel; and Richard A. Daley, Deputy Chief Counsel, all of Washington, D.C., 

were on the pleading, for the appellee. 

Before PIETSCH, ALLEN, and MEREDITH, Judges. 

ALLEN, Judge: Before the Court is the appellant Albert P. Blue's July 28, 2017, 

application pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (EAJA), for an award 

of attorney fees and expenses in the amount of $9,314.17. The Secretary opposed the EAJA 

application asserting only that Mr. Blue is not a prevailing party because the Court's remand was 

not predicated on agency error. On October 10, 2017, this case was submitted to a panel of the 

Court to address whether the appellant is a prevailing party under 28 U.S.C. § 2412(d)(1)(A) in 

the context of an appeal in which the Court (1) specifically stated that it found no error in the 

underlying Board of Veterans' Appeals (Board) decision but (2) nonetheless vacated that decision 

and remanded the matter for further development based on factual information provided by the 

appellant in the first instance on appeal. For the following reasons, we hold that, under the 

circumstances of this case, the appellant is a prevailing party for EAJA purposes. Accordingly, the 

Court will grant in full the appellant's EAJA application. 

 
2 

I. RELEVANT BACKGROUND 

Mr. Blue's substantive appeal concerned an April 24, 2015, Board decision that denied 

service connection for a back disorder, a bilateral knee disorder, and a psychiatric disorder. As 

relevant to the EAJA question, the appellant argued that VA had not fulfilled its duty to assist him 

because it had not obtained VA medical treatment records from a facility in California. See 

Appellant's Brief (Br.) at 1. He requested that the Court vacate the Board's decision and remand 

the matter for "further development and adjudication." Id. at 18. 

On April 20, 2017, the Court issued a memorandum decision in which it vacated the 

Board's decision on appeal and remanded the matter for further development and readjudication. 

Blue v. Shulkin, No. 15-1884, 2017 WL 1407530, at *4 (Vet. App. April 20, 2017). In its decision, 

the Court addressed the appellant's challenge to the Board's determination that VA satisfied its 

duty to assist despite not obtaining the VA treatment records at issue. Id. at *3. The Court explained 

that the Board did not err in that regard as it was not VA's duty to "'sift through'" the appellant's 

claims file "to determine when and where he may have received VA treatment." Id. (quoting 

Secretary's Br. at 14). The Court recognized that the appellant maintained throughout the pendency 

of his administrative appeal that he was treated in a VA facility in Palm Springs, California; 

however, it was only on appeal to the Court that he provided accurate treatment dates. Specifically, 

the Court noted that before the agency the appellant had maintained that he was treated at the Palm 

Springs VA facility from 1970 to 1973, and while at the Court he stated that, in fact, his treatment 

began in 1975. Id. In a passage that takes on a featured role in this matter, the Court opined that, 

[a]lthough [it] can find no error in the Board's failure to discover the exact dates of 

the appellant's treatment in California or in VA's failure to request records dated at 

least 2 years later than the appellant's testimony revealed, the appellant has now 

identified evidence in the record that meets his burden of providing VA with the 

information necessary to assist him in obtaining potentially relevant VA records. 

Id. The Court then determined that it would vacate the Board's decision and remand the matter for 

the Board "to consider this evidence in the first instance and to direct VA to provide such additional 

assistance to the appellant it deems appropriate in light of this evidence." Id. Thus, the Court 

ordered essentially the same relief the appellant had requested. See, e.g., Appellant's Br. at 18 

(requesting remand for "further development and adjudication").

The appellant argues that he is a prevailing party because the relief the Court provided was 

predicated on error. He explains that, regardless of the language used in the underlying merits 

decision, for EAJA purposes the Court can–indeed, must–independently assess whether the 
3 

remedy provided in the underlying merits decision was one that was necessitated by error. Reply 

at 2-3. In other words, the appellant contends that the Court, as the EAJA decision-maker and 

without reevaluating the underlying merits decision, must determine whether the Court's remand 

here was the type of remedy that necessarily required a finding of agency error. 

The Secretary, however, argues that the appellant is not a prevailing party because the April 

2017 Court decision explicitly found no error in the underlying Board decision. During oral 

argument, the Secretary emphasized that, "in the instance that there is an explicit finding of no 

error on the merits, that should end the discussion for the purposes of [sic] prevailing party under 

EAJA." Oral Argument at 39:36-39:44. The Court must decide which of these competing theories 

is correct. 

II. ANALYSIS 

The Court has jurisdiction to approve EAJA applications and to award reasonable attorney 

fees and expenses. 28 U.S.C. § 2412(d)(1)(A), (2)(F). A party seeking EAJA fees must submit a 

timely application that includes: (1) a showing that the applicant is a prevailing party; (2) an 

assertion that the applicant is "eligible to receive an award"; (3) a statement of "the amount sought, 

including an itemized statement from any attorney . . . stating the actual time expended and the 

rate"; and (4) an allegation that the position of the United States was not substantially justified. 28 

U.S.C. § 2412(d)(1)(A), (1)(B), (2)(B); Scarborough v. Principi, 541 U.S. 401, 407-08 (2004). 

The only requirement at issue here is whether the appellant is a prevailing party.1

A. Legal Requirements for Prevailing-Party Status 

One might think that determining whether a litigant is a "prevailing party" for EAJA 

purposes would be straightforward. After all, it is usually fairly easy to figure out who is a winner 

and who is not. But defining the characteristics of a "prevailing party" under EAJA has proven to 

be challenging, especially in the context of the review of agency decisions. We begin by 

canvassing the development of the law in this area, ultimately leading us to the test that captures 

the elements that must be established to be a prevailing party under the EAJA. 

 1 The Secretary does not argue that the position he took in this case was substantially justified and he does 

not challenge the appellant's eligibility or the reasonableness of the award sought. He only disputes the appellant's 

assertion that he is a prevailing party. Secretary's Response (Resp.) at 1, n.1. Thus, if the appellant is a prevailing 

party, the application should be granted.
4 

Generally, to achieve prevailing party status, a litigant must receive at least some relief on 

the merits of the claim rising to the level of an enforceable judgment on the merits or court-ordered 

consent decree that materially alters the parties' legal relationship. Vaughn v. Principi, 336 F.3d 

1351, 1356-57 (Fed. Cir. 2003) (citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of 

Health & Human Res., 532 U.S. 598, 603 (2001)). While recognizing that normally a decision 

merely remanding a case would not qualify as "some relief on the merits," the U.S. Court of 

Appeals for the Federal Circuit (Federal Circuit) has explained that remands to administrative 

agencies are different than other remands and may constitute the requisite relief on the merits. 

Former Employees of Motorola Ceramic Products (Motorola) v. United States, 336 F.3d 1360, 

1366 (Fed. Cir. 2003). Specifically: 

[W]here the plaintiff secures a remand requiring further agency proceedings 

because of alleged error by the agency, the plaintiff qualifies as a prevailing party 

(1) without regard to the outcome of the agency proceedings where there has been 

no retention of jurisdiction by the court, or (2) when successful in the remand 

proceedings where there has been a retention of jurisdiction. 

Id.; see Kelly v. Nicholson, 463 F.3d 1349, 1354 (Fed. Cir. 2006) ("[T]he inquiry is whether [the 

party] was a prevailing party in his 'civil action,' not whether he ultimately prevails on his service 

connection claim."). 

We know then that remands to agencies may confer prevailing party status, but do not 

always do so. Over the years, this Court and the Federal Circuit have explored the dividing line 

between remands that confer such status and remands that do not. For example, a remand to 

consider the effect of intervening legislation does not confer prevailing party status, see Vaughn, 

336 F.3d at 1356-57, 1360, nor does a remand directing dismissal for lack of jurisdiction, see

Halpern v. Principi, 384 F.3d 1297, 1306 (Fed. Cir. 2004). Additionally, a remand for procedural 

purposes—e.g., to address the passage of a new law or issuance of a judicial decision offering new 

avenues of relief—does not confer prevailing party status. See Akers v. Nicholson, 409 F.3d 1356, 

1360 (Fed. Cir. 2005). Similarly, a remand for the Board to consider a legal issue raised for the 

first time on appeal pursuant to Maggitt v. West, 202 F.3d 1370 (Fed. Cir. 2000), does not, by 

itself, confer prevailing party status. See Gordon v. Shinseki, 17 Vet.App. 221, 224 (2003); see 

also Vahey v. Nicholson, 20 Vet.App. 208, 211 (2006) (rejecting appellant's contention that he was 

a prevailing party because the matter was remanded for readjudication in light of caselaw that was 

not yet considered by the agency in the first instance). 
5 

In Davis v. Nicholson, the Federal Circuit reaffirmed Motorola and further expounded on 

how to determine when a remand to an administrative agency occurs "'because of alleged error by 

the agency.'" 475 F.3d 1360, 1364 (Fed. Cir. 2007) (quoting Motorola, 336 F.3d at 1366). 

Significantly, the Federal Circuit held that agency error can be explicit or implicit in a court's 

decision (assuming the agency does not confess error). See id. The Federal Circuit held: 

Where there has been a remand to an administrative agency without a judicial 

finding of administrative error or a concession of such error by the agency, the 

default rule is that the remand is not based on administrative error for EAJA 

purposes under the Motorola test. This default rule places the burden on the EAJA 

applicant to prove, based on the record, that the remand had to have been predicated 

on administrative error even though the remand order does not say so. 

Id. at 1366. 

We pause at this point to underscore the importance of this passage from Davis for purposes 

of this case. The face of the underlying merits decision sets the stage for a subsequent EAJA 

determination. However, that decision (and the language it uses) is not the end of the matter. 

Rather, it sets a "default rule," essentially determining whether the onus will be on the EAJA 

applicant to demonstrate that a remand without an express finding of error was in fact predicated 

on administrative error to be deemed a prevailing party. Thus, as the Federal Circuit expressly 

noted, "remands based on our recognition of agency error from the record do confer prevailing 

party status." Id. at 1364 (citing Kelly, 463 F.3d at 1354 n.3); see Gurley v. Peake, 528 F.3d 1322, 

1327-28 (Fed. Cir. 2008) (quoting Davis and explaining that the Court must look to the "context 

of the remand," when assessing whether a remand order is predicated on agency error). 

The Federal Circuit also rejected Mr. Davis's argument that the remand order had to have 

been premised on administrative error simply because the Court remanded, explaining that agency 

errors are not the only reason that the Court can issue remands. Davis, 475 F.3d at 1364. "Instead, 

the Veterans Court has authority to remand cases to the Board for further proceedings for further 

consideration of legal issues or for clarification of facts underlying a legal issue." Id. Ultimately, 

the Federal Circuit concluded that Mr. Davis was not a prevailing party because he failed to 

demonstrate that, and the record was unclear whether, the remand order was predicated on agency 

error. Id. at 1365.2

 2

 There were other decisions on this topic as well. For example, remands for judicial economy were deemed 

procedural and not based on administrative error. Gurley, 528 F.3d at 1328. Also, a joint motion for remand granted 

by the Court based on the parties' understanding that it was for the Board to reevaluate a claim in light of new caselaw 
6 

The most recent Federal Circuit decision on point is Dover v. McDonald, 818 F.3d 1316 

(Fed. Cir. 2016). The parties in Dover agreed that the remand there was necessitated by agency 

error (the Board failing to dismiss a non-specific motion for revision based on clear and 

unmistakable error, id. at 1317) and the dispute turned on what was required to be done on remand. 

Id. at 1319. Given that fact, it might appear that Dover is not particularly relevant here. However, 

it is highly significant because the Federal Circuit set out a three-part test for determining 

prevailing party status under the EAJA in the context of agency remands. We believe this test 

harmonizes the caselaw that had developed over a number of years in this area. An appellant who 

secures a remand to an administrative agency is a prevailing party under the EAJA if (1) the 

remand was necessitated by or predicated upon administrative error, (2) the remanding court did 

not retain jurisdiction, and (3) the language in the remand order clearly called for further agency 

proceedings, which leaves the possibility of attaining a favorable merits determination. Id.3 

Here, there is no dispute about two of the three Dover elements. The Court did not retain 

jurisdiction in this matter and the remand order expressly called for further agency proceedings 

when it instructed the Board "to consider this evidence in the first instance and to direct VA to 

provide such additional assistance to the appellant it deems appropriate in light of this evidence." 

Blue, 2017 WL 1407530, at *3-4. Thus, the only question that must be resolved is whether the 

remand was necessitated by or predicated on agency error. We turn to that question next. 

B. Agency Error 

 As discussed above, the Federal Circuit has made clear that error can be either explicit or 

implicit and can be either found by the Court or conceded by the Secretary. See Davis, 475 F.3d at 

1364. The Secretary does not concede error. See Secretary's Resp. at 3. The Court did not explicitly 

find error either. In fact, the opposite is true. The remand order reflects that the Court could "find 

no error" on the part of the Board or VA. Blue, 2017 WL 1407530, at *3. Thus, per Davis, the 

 

was not based on any "actual or perceived administrative error." Thompson v. Shinseki, 682 F.3d 1377, 1382 (Fed. 

Cir. 2012). 

3

 There had been claims that the Federal Circuit's caselaw about what was necessary to qualify as a prevailing 

party was inconsistent. See Halpern, 384 F.3d at 1306 ("The parties would have us choose between Former Employees 

of Motorola and Vaughn and decide which case lays down the proper rule. Implicit in that proposition is the notion 

that the rules . . . are somehow in conflict. We need not and do not address that notion [here]."). To the extent that was 

the case, we believe Dover resolves the inconsistency. To be clear, we understand that the three-part test recited above 

is the definitive one to be used in determining prevailing party status under the EAJA in the context of remands to 

administrative agencies. 
7 

default rule is in effect here, which requires that the Court presume that there is no administrative 

error and for the appellant to prevail he must demonstrate that the remand order was, despite its 

language, actually predicated on such error. 475 F.3d at 1364. 

We acknowledge that there is no case on all fours with this one, or at least not one the 

parties have cited or the Court could find. There are cases in which a merits decision says, 

essentially, "there is administrative error" and there are merits decisions that say nothing at all on 

that subject. But it is unique, or at least exceedingly rare, to have a merits decision award the relief 

a litigant seeks but expressly state that there was no agency error. As unusual as that may be, that 

is what we have. To rule on this matter, the Court must first determine how, under these unique 

circumstances, we, as an EAJA decision-maker, should interpret the merits decision. To begin, we 

examine what embodies implicit error in such a situation. 

 A merits determination and a decision concerning the award of fees under the EAJA are 

different matters. This reality can often be obscured by the fact that the decision-makers for the 

merits and for the EAJA are often the same. Here that is not the case, which may make the 

distinction more noticeable. Regardless, however, decisions on the merits and on an EAJA 

application are distinct from one another. A merits decision-maker does not decide if a litigant is 

a prevailing party under the EAJA. And an EAJA decision-maker cannot relitigate the merits 

determination. We have recognized this latter point before when we held that an EAJA decisionmaker "need not, and in fact should not, investigate at the EAJA prevailing-party stage the validity, 

type, or nature of the administrative error. Nor should the Court revisit at the EAJA stage the logic 

of the merits decision." McCormick v. Principi, 16 Vet.App. 407, 411 (2002). As the Supreme 

Court recognized, "'[a] request for attorney's fees should not result in a second major litigation.'" 

Commissioner, I.N.S. v. Jean, 496 U.S. 154, 163 (1990) (quoting Hensley v. Eckerhart, 461 U.S. 

424, 437 (1983)).4

 

 The Federal Circuit's cases provide guidance about how to accommodate an EAJA 

decision-maker's distinct role in the process while guarding against inappropriate relitigation of 

the merits. An EAJA decision-maker takes what the merits decision-maker did–the relief–and 

compares that to whether that relief was necessitated by or predicated on error at the agency. In a 

similar way, in EAJA matters where the underlying merits decision is silent on the issue of agency 

 4

 The parties do not dispute this principle and the appellant made it clear that he is not attempting to relitigate 

the merits of the underlying decision. Oral Argument at 24:44-24:55. 
8 

error, the Federal Circuit has instructed EAJA decision-makers to review the context and nature 

surrounding the remand to determine whether there was administrative error. See Thompson, 

682 F.3d at 1382; Davis, 475 F.3d at 1364; Kelly, 463 F.3d at 1349. The EAJA decision-maker is 

to assess the relief provided in the context of the merits decision's reasoning. See Gurley, 528 F.3d 

at 1327; Davis, 475 F.3d at 1365. We see no reason why that same analytical approach should be 

any different in this case. 

How does one go about shouldering such a burden? As we have explained, there are no 

cases directly on point. Nevertheless, we can draw some general principles from cases in which 

the merits decision is silent on the question of agency error. First, it is clear that an EAJA decisionmaker is required to examine the context of the remand order itself to determine whether the 

remand was implicitly predicated on agency error. See Gurley, 528 F.3d at 1327; Davis, 

475 F.3d at 1365. When looking at such context, the Federal Circuit examines not only the critical 

language of the remand order but also the nature of the remand, the record, and the actions of both 

parties and the merits decision-maker. 

In Kelly, for example, the Federal Circuit evaluated the Court's underlying remand order 

and emphasized the importance of looking at the context surrounding the remand, explaining that 

"[i]t would be incongruous to allow courts to make an end run around the purposes underlying 

EAJA by making such trivial distinctions and masking its actions in artfully worded orders." 

463 F.3d at 1355. In that case, this Court had denied the request for EAJA fees and explained that 

the remand was not based on agency error because it imposed no requirement on the Board on 

remand unless the argument was raised by the appellant below. Id. at 1355. The Federal Circuit 

reversed that determination and explained that Mr. Kelly "prevailed in his civil action." Id. at 1354. 

Then, after a review of the record, the court determined that VA failed to consider all the evidence 

of record before making its determination, requiring remand. Id. at 1355. That was error regardless 

of how the merits decision-maker characterized it. In Davis, the Federal Circuit cited to Kelly and 

upheld the proposition that an EAJA decision-maker's determination of whether a remand was 

predicated on agency error is not limited to the four corners of the remand order and found that 

Mr. Davis "failed to prove that the remand was based on administrative agency error."5 Davis, 475 

F.3d at 1366. 

 5

 In 2010, the U.S. Court of Federal Claims in Martinez v. United States relied on Davis, explaining that it 

must look to the entirety of the record to determine whether the remand at issue was predicated on agency error. That 
9 

In Thompson, the Federal Circuit examined the parties' perceptions to determine if the 

remand order was predicated on agency error. In that case, because the parties believed that new 

caselaw had changed the legal landscape, it determined that the Court granted the joint motion for 

remand on that basis as well and, thus, the context of the remand did not support a finding that the 

remand was predicated on any "actual or perceived" agency error. 682 F.3d at 1382. 

Moreover, the U.S. Court of Federal Claims' decision in Hughett v. United States, 110 Fed. 

Cl. 680 (Fed. Cl. 2013), is instructive. In Hughett, the Court of Federal Claims examined the 

language of the remand order at issue and explained that the court's purpose behind issuing the 

remand was to promote judicial economy, not to address administrative error. Id. at 687. Therefore, 

prevailing party status was not warranted because the remand was merely a "technical victory" 

that would allow the court to more efficiently rule on the matter. Id. at 687-88.6

 Therefore, for EAJA purposes, the language of the remand order, as well as the 

circumstances surrounding the remand, are the fundamental basis for the determination of whether 

implicit agency error exists in a remand order. To evaluate the circumstances or context of the 

remand, the Court can review the parties' perceptions, address actions in favor of judicial policy, 

and even review the entirety of the record. See Thompson, 682 F.3d at 1382; Gurley, 528 F.3d at 

1327; Davis, 475 F.3d at 1365; Kelly, 463 F.3d at 1355; Hughett, 110 Fed. Cl. at 684. 

C. Application: Mr. Blue is a Prevailing Party Under the EAJA 

In his EAJA application, Mr. Blue asserted that he is a prevailing party because "the Court 

vacated the B[oard's] decision based on the failure to obtain relevant agency records and remanded 

the case for further adjudication in accordance with its decision." Application at 4. He further 

argued that the relief the Court ordered—a remand for further development and readjudication—

"create[d] the 'material alteration of the legal relationship of the parties' necessary to permit an 

award of attorney's fees.'" Id. (quoting Buckhannon, 532 U.S. at 604). In his reply to the Secretary's 

response, the appellant contended that "the proper test is whether the relief on the merits obtained 

in the form of a remand was necessitated by agency error," not "whether the Secretary conceded 

 

court stated that, because the "record amply demonstrates" that the remand was ordered for failure to properly apply 

a regulation, the lack of an explicit finding of error did not alter the analysis for EAJA purposes. 94 Fed. Cl. 176, 182 

(Fed. Cl. 2010) (citing Davis, 475 F.3d at 1365). 

6

 The Court recognizes that the Court of Federal Claims retained jurisdiction in that case, unlike the matter 

at hand, but the application of the EAJA caselaw related to the nature of remands is still on point because the appellant 

there was required to show success on the merits within the parameters of Motorola and its progeny. See Hughett, 

110 Fed. Cl. at 685-89. 
10 

error or this Court made a finding of error." Reply at 3. Specifically, Mr. Blue explained that "[i]t 

was . . . an error of the agency in failing to have fully developed [his] claim before deciding it on 

the merits which necessitated the remand made by this Court." Id. at 5. At oral argument, Mr. Blue 

asserted that, but for the existence of an administrative error, the Court could not have determined 

that vacatur and remand were necessary in this case. Oral Argument at 25:28-25:52. 

Mr. Blue is a prevailing party for EAJA purposes based on a contextual assessment of the 

underlying merits decision. We reach this conclusion by considering the substantive discussion in 

the merits decision, the relief awarded, and whether the caselaw cited in the merits decision would 

allow such relief in the absence of agency error. To set the stage, the critical language of the Court's 

remand in this appeal is: 

Although the Court can find no error in the Board's failure to discover the exact 

dates of the appellant's treatment in California or in VA's failure to request records 

dated at least 2 years later than the appellant's testimony revealed, the appellant has 

now identified evidence in the record that meets his burden of providing VA with 

the information necessary to assist him in obtaining potentially relevant VA 

records. See 38 C.F.R. § 3.159(c)(1). Accordingly, the Court will remand the matter 

for the Board to consider this evidence in the first instance and to direct VA to 

provide such additional assistance to the appellant it deems appropriate in light of 

this evidence. 

Blue, 2017 WL 1407530, at *3. The underlying merits decision cited Maggitt and Bozeman v. 

McDonald, 814 F.3d 1354 (Fed. Cir. 2016), after the critical passage quoted above. Blue, 2017 

WL 1407530, at *3.7

The Federal Circuit in Maggitt held, in relevant part, that this Court had discretion to either 

address or remand to the Board to consider initially certain arguments raised for the first time on 

appeal. 202 F.3d at 1377 ("While the . . . Court may hear legal arguments raised for the first time 

with regard to a claim that is properly before the [C]ourt, it is not compelled to do so in every 

instance."). But Maggitt does not provide carte blanche to vacate a Board decision in the absence 

of agency error. In every situation we have found (as in Maggitt itself8

), the matter remanded to 

 7

 The merits decision also cited Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000), and Webster v. 

Derwinski, 1 Vet.App. 155, 159 (1991). Blue, 2017 WL 1407530, at *3. Both cases, however, concern express findings 

of agency error and were cited for the narrow proposition that this Court should not conduct fact finding in the first 

instance. 

8

 In Maggitt, the appellant raised, in pertinent part, two issues on appeal that were not previously presented 

to the Board. The first was a constitutional argument concerning a violation of due process and the second concerned 

two administrative regulations that he asserted were invalidly repealed, violating the Administrative Procedure Act. 

202 F.3d at 1373. Both were legal arguments. 
11 

the Board to consider in the first instance involved a legal question. See, e.g., Sowers v. McDonald,

27 Vet.App. 472 (2016) (remanded for the Board to make the appropriate factual findings to 

properly address the legal question under 38 C.F.R. 3.321); Pacheco v. Gibson, 27 Vet.App. 21 

(2014) (per curiam) (remanded for the Board to address possible earlier effective date under 

38 C.F.R. § 3.156(c)); Kyhn v. Shinseki, 26 Vet.App. 371 (2013) (per curiam) (remanded for the 

Board to determine whether VA's notification duties were satisfied under 38 U.S.C. § 5103A); 

Gordon, 17 Vet.App. at 224 (merits decision remanded to the Board because the application of the 

regulation at issue "appeared to have discretionary rather than mandatory application").9

 Under its 

current bounds, Maggitt provides that the Court may vacate a Board decision without error to allow 

the Board to consider a legal question as an initial matter. As such, Maggitt does not support the 

relief ordered in this case in the absence of agency error.10 Moreover, the citation to Bozeman and 

the accompanying parenthetical suggest that the merits decision-maker was aware that an 

argument premised on evidence contained in the record would fall outside the parameters of a 

Maggitt remand. See Bozeman, 814 F.3d at 1358 ("[A]n argument that the Board failed to consider 

evidence contained in the record, which supports a veteran's established legal claim, should not be 

considered a new legal argument raised for the first time on appeal [for purposes of invoking issue 

exhaustion under Maggitt]."). 

In sum, although the merits decision-maker in part explicitly found no error in its remand 

order on the underlying merits decision, we conclude that, under the unique circumstances 

presented by this case, the appellant has met his burden of demonstrating that the remand in this 

matter must have been implicitly predicated on an "actual or perceived" agency error and the 

appellant has demonstrated that he is a prevailing party in this matter. See Davis, 475 F.3d at 1364; 

 9

 Contrary to the Secretary's argument, this EAJA matter is distinguishable from Gordon where the appellant 

raised a new argument related to the application of a regulation that was not previously made. By contrast, in the case 

at hand, the Court seemed to suggest that the appellant, while on appeal to the Court, met his burden of showing he 

may be entitled to further assistance under the duty to assist pursuant to § 3.159(c)(1), which is something VA is 

required to comply with. See Kelly, 463 F.3d at 1354-55 ("[W]here the VA has breached its duty to assist the veteran 

and . . . failed to consider all evidence supporting a claim, the Veterans Court will necessarily remand the case to the 

agency."). 

10 Even if one were to extend Maggitt, it still would not fit this situation. The only substantive argument the 

Court addressed in the underlying appeal pertained to VA's duty to assist under § 3.159(c)(1) and it acknowledged 

that the appellant had maintained that VA had not satisfied that duty throughout the course of his appeal. Blue, 2017 

WL 1407530, at *3. A review of the record confirms the Court's statement. Given that recognition, Maggitt was 

inapposite because the appellant was continuing an ongoing argument—violation of VA's duty to assist—that had 

been raised below. 
12 

see also Thompson, 682 F.3d at 1382; Kelly, 463 F.3d at 1354-55 ("[W]here the VA has breached 

its duty to assist the veteran and . . . failed to consider all evidence supporting a claim, the Veterans 

Court will necessarily remand the case to the agency."). The Court stresses that this opinion is not 

intended to suggest that every remand could or should be found to entail implicit error; rather, we 

draw that conclusion here based on the extremely unusual circumstances of this case. Because the 

Secretary does not argue that his position was substantially justified and does not contest the 

reasonableness of the fees claimed (and the Court concludes based on an independent review that 

those fees are not unreasonable on their face), the Court will grant the appellant's EAJA application 

in full. 

III. CONCLUSION 

 After consideration of the record, relevant law, and the parties' briefs and oral argument, 

the appellant's EAJA application is GRANTED in full, in the amount of $9,314.17.