UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 01-944

LARRY A. PELEGRINI,                                           APPELLANT ,

   V.


ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS,                                APPELLEE.


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

                                            ORDER

         The appellant, through counsel, seeks review of an April 30, 2001, Board of Veterans'
Appeals (BVA) decision that found that an April 1994 Department of Veterans Affairs (VA) regional
office (RO) decision was final and that no new and material evidence had been presented, since that
VARO decision, to reopen the appellant's finally disallowed claim for VA service connection for
soft-tissue lung mass due to exposure to Agent Orange or other herbicides during service in Vietnam.
Record (R.) at 4. The appellant has filed a brief and a reply brief, in which he makes certain
arguments in support of a remand based on the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA). The Secretary has filed a brief, in which he argues
that the VCAA does not require a remand in the instant appeal.

         The appellant's arguments for remand raise questions not adequately addressed by the parties
regarding (1) the extent to which the VCAA, specifically new section 5103A, added to title 38, U.S.
Code by the VCAA, obligates the Secretary to assist claimants presenting claims to reopen and (2) if
the Secretary is so obliged, the circumstances under which VA must provide a medical opinion
regarding any nexus between a veteran's current condition and that veteran's service. The Secretary
argues that, as a result of section 5103A(f) (quoted infra), no claim-development assistance is owed
to the appellant and that the "Duty to Assist" regulations that the Secretary issued on August 29,
2001, to implement the provisions of the VCAA, as "to claims for benefits that are governed by part
3 [of title 38, Code of Federal Regulations]", are inapplicable to the appellant's claim to reopen
because it was submitted before August 29, 2001, 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001).
Brief at 12-13; see R. at 127 (claim to reopen submitted in 1996).

        The VCAA, inter alia, amended 38 U.S.C. § 5103 ("Notice to claimants of required
information and evidence") and added 38 U.S.C. § 5103A ("Duty to assist claimants"). VCAA
§ 3(a), 114 Stat. at 2096-98; see 66 Fed. Reg. at 45,630-32 (amending, inter alia, 38 C.F.R. § 3.159)
("Duty to Assist" regulations prescribed by Secretary under 38 U.S.C. § 5103A(e) and (g) to provide
VA claimants with assistance in substantiating claims). Section 5103A(d) requires that the Secretary
provide medical examinations or opinions to certain claimants for VA disability compensation when
"necessary to make a decision on the claim"; section 5103A(f) provides in pertinent part: "Nothing
in this section shall be construed to require the Secretary to reopen a claim that has been disallowed
except when new and material evidence is presented or secured"; section 5103A(g) provides:
"Nothing in this section shall be construed as precluding the Secretary from providing such other
assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers
appropriate." VCAA § 3(a), supra.

        In the Supplementary Information published in the Federal Register on August 29, 2001, the
Secretary quoted and summarized sections 5103A(f) and (g) and then concluded: "Given section
5103A(f)'s express preservation of the finality of VA decisions, we proposed [in the regulations
previously published for comment], however, to provide less assistance in attempts to reopen final
previously disallowed claims than for original claims for compensation." 66 Fed. Reg. at 45,628.
It appears that the Secretary is therefore reading section 5103A(f) as not only requiring that he not
"reopen" a claim that has been previously and finally disallowed except upon the presentation of new
and material evidence, but also as requiring that he not assist a veteran in substantiating a claim to
reopen by creating medical evidence not in existence. Ibid; see generally Bernklau v. Principi,

, 805 (Fed. Cir. 2002) (describing 5103A(f) in dictum as "specifically providing that
the duty[-]to[-]assist provisions of section 3(a) [of the VCAA] should not apply to closed cases").


        Based, apparently, on this rationale, the Secretary's August 29, 2001, regulations limit VA's
duty to "[p]rovid[e] medical examinations or obtain[] medical opinions" by providing that that duty
"applies to a claim to reopen a finally adjudicated claim only if new and material evidence is
presented or secured". 38 C.F.R. § 3.159(c)(4)(iii) (citing 38 U.S.C. § 5103A(d) as the statutory
authority for this regulation). In the Supplementary Information, the Secretary also stated:

               Authority to provide such additional assistance is provided by
               38 U.S.C. § 5103A(g), which provides that nothing in section 5103A
               shall be construed to preclude VA from providing such other
               assistance to a claimant in substantiating a claim as VA considers
               appropriate. Because we have no authority to make these provisions
               retroactively effective, they are applicable on the date of this final
               rule's publication. Accordingly, we will apply the second sentence of
               § 3.159(c), § 3.159(c)(4)(iii), and the amendment to 38 C.F.R.
               [§] 3.156(a) to any claim for benefits received by VA on or after
               August 29, 2001.

66 Fed. Reg. at 45,629.

       Assuming, arguendo, that the VCAA does apply to claims before VA and the BVA at the
time of the VCAA's enactment, the Court is in need of additional briefing from the parties on the
following questions regarding the application to claims to reopen of new section 5103A(d) and
amended regulation § 3.159(c)(4), see 66 Fed. Reg. at 45,631:


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       (1) Does 38 U.S.C. § 5103A(a) through (e) and (g) apply to claims to reopen? See 38 U.S.C.
§§ 5100, 5103A(f); Brown v. Gardner, 

, 117-18 (1994); Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 

, 844-45 (1984); Bernklau, supra; see also Quartuccio v.
Principi, 

, 187 (2002).

        (2) If so, was it a reasonable interpretation of the VCAA and other applicable law for the
Secretary to determine that, as to his August 29, 2001, regulations regarding claims to reopen, he has
"no authority to make these provisions retroactively effective," and, if so, to determine that, because
of such lack of authority, the second sentence of 38 C.F.R. § 3.159(c) and 38 C.F.R.
§ 3.159(c)(4)(iii) are effective on August 29, 2001, instead of on November 9, 2000? See 66 Fed.
Reg. at 45,629.

       (3) What is the effect, if any, of Quartuccio, supra, on the appellant's claim?

       Upon consideration of the foregoing, it is

        ORDERED that, not later than 30 days after the date of this order, the appellant file, and
serve on the Secretary, a memorandum of law addressing the issues presented in this order. It is
further

       ORDERED that, not later than 30 days after service of the appellant's memorandum, the
Secretary file, and serve on the appellant, a memorandum of law in response to the appellant's
memorandum and to this order. It is further

       ORDERED that, not later than 20 days after service of the Secretary's memorandum in
response, the appellant may file a memorandum in reply to that response.

       Any interested amici curiae may submit briefs on the same schedule provided for the
appellant.

DATED:         August 22, 2002                         PER CURIAM.




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