Dover v. McDonald, No. 14-7124 (Fed. Cir. 2016)
Annotate this CaseDover served in the Navy, 1956-1960, and, in 1968, filed a claim for service-connected disability benefits. His claim for a hand injury was denied; he did not appeal. In 2004, the VA regional office (RO) denied Dover's motion to reopen. In 2008, Dover requested clear and unmistakable error (CUE) review of both the 1968 decision and the 2004 refusal to reopen. In 2009, the RO granted service connection based on new medical evidence and assigned an effective date of March, 2006, the date of another request to reopen. In 2009, Dover appealed for an earlier effective date of 1968, but the RO found no CUE. In 2011, Dover provided more detailed arguments. The Board for Veterans’ Appeals issued a final ruling of no CUE. On appeal, the VA conceded that it erred by failing to dismiss Dover’s non-specific CUE claim. The Veterans Court remanded with instructions to allow and consider additional evidence and argument in support of the claim. The Board dismissed Dover’s 2008 claim without prejudice but treated the 2011 submission of additional arguments as a separate CUE claim and remanded to the RO. Dover moved under the Equal Access to Justice Act for attorney’s fees incurred on appeal, 28 U.S.C. 2412(d). The Veterans Court rejected the motion because it believed that its remand was for dismissal. The Federal Circuit reversed, stating that the remand expressly contemplated, and the appellant received, further proceedings, sufficient for prevailing party status.
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