Karen appealed to the Board of Veterans Appeals, where her claim for half the NSLI policy was granted. On appeal by Beth and remand, the Board then held that Karen's children were not beneficiaries. On reconsideration for the applicability of the Veterans Claims Assistance Act of 2000 (“VCAA”), the Board issued yet another decision that there was clear evidence that Gordon intended to change his written beneficiaries, but no evidence that there was any overt act to effectuate that intent, so that the policy proceeds belonged to Beth's daughters.
However, the Board also held that Karen was entitled to VCAA notice as to information and evidence necessary to support her claim, which the Secretary did not give (the Secretary contended Karen and her daughters were not beneficiaries and thus not entitled to such notice). On appeal of this ruling by the Secretary, the Court of Appeals for Veterans Claims agreed that the failure to give Karen the VCAA notice was error, and that the error was prejudicial. Karen filed an application for attorney’s fees and expenses to be paid by the VA under the Equal Access to Justice Act (“EAJA”).
The Court of Appeals for Veterans Claims noted that Karen clearly satisfied three of the four EAJA requirements; the remaining issue was whether or not the position of the Secretary was substantially justified. The Secretary’s position was: 1) a NSLI beneficiary claimant is not a claimant within the meaning of §5103(a); and 2) that Karen was adequately notified in any event.
Concerning the first argument, the Court found that it was clearly contrary to what Congress had intended, which was that a “claimant for VCAA purposes include an individual seeking proceeds of a deceased veteran’s NSLI policy.” The Court noted that this conclusion was consistent with its rulings in previous cases and that the question was not complex or even “in need of substantial interpretation.” Accordingly, the Court held that the Secretary’s position was not substantially justified.
The Court also rejected the Secretary’s second position, that Gordon had received notice and any notice error was not prejudicial. The Secretary’s argument was identical to an administrative position the Court previously held to not be substantially justified in Gordon v. Nicholson, 21 Vet. App. 270 (Vet. App. 2007). As for the Secretary’s argument that Gordon had actual knowledge as to the evidence needed to support her claim, the Court found no evidence in the record to support this position.
The Court of Appeals awarded Gordon $9,189 on her EAJA application.
Related Categories: Civil Procedure , Civil Remedies
|Appellant Lawyer(s)||Appellant Law Firm(s)|
|Glenn R. Bergmann||Bergmann & Moore, LLC|
|Appellee Lawyer(s)||Appellee Law Firm(s)|
|Randall Campbell||Veterans Affairs|
|Edward Cassidy||Veterans Affairs|
|Tim McClain||Veterans Affairs|
|Cristine Senseman||Veterans Affairs|