UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


NO . 99-2043

CRUZ SANCHEZ,                                                  APPELLANT ,

    V.


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


                       Before IVERS, STEINBERG, and GREENE, Judges.

                                             ORDER

        On April 6, 2001, by single-judge order, the Court remanded the appellant's claim for
entitlement to service connection for a right-foot disability pursuant to the Veterans Claims
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA), and Holliday
v. Principi, 

(2001). On April 27, 2001, the appellant filed a timely motion for panel
decision. The appellant argues that remand was inappropriate where the evidence of record
supported an award of service connection for the claimed condition. He argues that the Court erred
in remanding the claim rather than reversing the Board of Veterans' Appeals (Board) decision as
clearly erroneous.

         Because the Board's decision predates the enactment of the VCAA, and because this Court
is limited to reviewing that which the Board has already considered, a remand is required in order
to provide the Board with an opportunity to readjudicate the appellant's claims under the new statute
in the first instance. 

; see also Luyster v. Gober, 

(2000) (per curiam
order). Each of the appellant's arguments respecting the Board's decision can be presented to the
Board on remand, and in the event this appeal should return to the Court, the Court will be in a better
position to review the issues after receiving the benefit of the Board's analysis. See Best v. Principi,

, 19-20 (2001) (per curiam order) (a narrow decision preserves for the appellant an
opportunity to argue those claimed errors before the Board upon readjudication).

         Upon consideration of the foregoing, the parties' prior pleadings, and the record on appeal,
it is

         ORDERED that the appellant's motion for a decision by a panel is denied.

DATED:          March 12, 2002                         PER CURIAM.

       STEINBERG, Judge, dissenting: I voted to grant a panel decision in this case because I
believe that the Court's refusal to address a ground for remand asserted by the appellant and
conceded by the Secretary unnecessarily raises the risk that this error will be repeated on remand,
and that it is an inappropriate exercise of this Court's discretion not to address nonreversal grounds
for remand in the context of a remand for readjudication in light of the enactment of the Veterans
Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (VCAA).1 See
Mahl v. Principi, 

, 37-40 (2001) (describing Court's discretion, in VCAA-remand
context, not to address nonreversal grounds); Best v. Principi, 

, 19-20 (2001).

        In this case, the appellant has argued that the decision of the Board of Veterans' Appeals
(Board) was erroneous because it failed, in contravention of Colvin v. Derwinski, 

,
175 (1991) (holding that when Board refuses to accept medical opinions favorable to appellant, "it
[is] necessary for the [Board] to state its reasons for doing so and, more importantly, point to a
medical basis other than the [Board]'s own unsubstantiated opinion which supported the decision"),
to articulate an independent medical basis to support its denial of the claim on the merits.
Appellant's Remand Motion (Mot.) at 9-11. In his remand motion, the Secretary stated as follows:
"Hence, had the VCAA not been enacted, remand would have been required due to the obvious
Colvin violation, inter alia. Nevertheless, the VCAA was enacted and the Board's analysis only
makes more obvious the Act's relevance to the claim." Secretary's Mot. at 5-6. Despite his assertion
that a VCAA remand obviates the need to remand on the Colvin ground, the Secretary not only
concedes this error but describes it as obvious. The Court's refusal to accept this concession of
obvious error unnecessarily risks its repetition on remand, and such a repetition could very well lead
to the Court's having to deal in the future with an error that could have been corrected now. See

(Steinberg, J., dissenting) (discussing generally issues and concerns that
should militate in favor of Court's exercising its discretion to consider non-VCAA, nonreversal bases
for remand).2

        Therefore, for the reasons set forth above as well as those set forth in my dissent in 

, I believe that it is inappropriate for the Court to refuse to consider a Board error conceded by
the Secretary and, hence, I dissent from the denial of a panel decision to supercede the single-judge
order that remanded for readjudication purely in light of the enactment of the VCAA.




         1
             Although I have recently stated in Brewer (Flora) v. Principi my general intention, as to matters coming
before me on motions for a panel decision, "in this and future similar cases not to delay a VCAA remand in order for
me to address, in a solitary way, the nonreversal remand grounds asserted by the appellant", Brewer (Flora), __ Vet.App.
___, ___, No. 99-528, slip op. at 1-2 (Feb. 26, 2002) (Steinberg, J., concurring), this case presents a different and
distinguishable circumstance because the nonreversal remand grounds here are not merely asserted by the appellant but
are also conceded by the Secretary. See Secretary's Motion at 5-6. In such a circumstance, I feel obliged at least to note
that this error is uncontested and to challenge the basis for the Court's refusing to address such a ground.

         2
           See also Benjamin v. Principi, 

, 216-219 (2001) (Steinberg, J., dissenting) (voting, for same
reasons articulated in dissent in 

, for motion for panel decision where there was VCAA remand); Webb v.
Principi, 

, 140-43 (2001) (Steinberg, J., dissenting) (same).

                                                            2