Robert L. Stinson v. Douglas A. Collins

Case: 20-8342 Page: 1 of 23 Filed: 07/16/2026 UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 20-8342(E) ROBERT L. STINSON, APPELLANT, V. DOUGLAS A. COLLINS, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before ALLEN, Chief Judge, and PIETSCH, MEREDITH, TOTH, FALVEY, LAURER, and JAQUITH, Judges. ORDER FALVEY, Judge, filed the opinion of the Court, which ALLEN, Chief Judge, and LAURER and JAQUITH, Judges, joined. ALLEN, Chief Judge, filed a concurring opinion which LAURER and JAQUITH, Judges, joined. JAQUITH, Judge, filed a concurring opinion. MEREDITH, Judge, filed an opinion concurring in part and dissenting in part. TOTH, Judge, filed a dissenting opinion which PIETSCH, Judge, joined.1 FALVEY, Judge: A three-judge panel of this Court addressed this matter in a November 25, 2025, decision. See Stinson v. Collins, 39 Vet.App. 30 (2025). 2 The Secretary sought reconsideration of that decision from the panel or review by the full Court. His motion led to this matter being submitted to the full Court. In our resulting decision, we withdraw that panel decision and issue this decision in its place.3 At first glance, this matter appears "beset with a labyrinth of whims and caprices, which [forever present] new difficulties and impediments" involving discretion, jurisdiction, factfinding, and remands. WASHINGTON IRVING, The Legend of Sleepy Hollow, in THE SKETCH-BOOK OF GEOFFREY CRAYON, GENT. 303, 313-14 (1820). Indeed, both parties attempt to explain that one or more of these issues would resolve this dispute over an Equal Access to Justice Act (EAJA) application in their favor. Yet, after threading this labyrinth of false complexity, we find that the matter rests on clear reasoning from the Federal Circuit that faults the Board for an error it made when denying service connection. That court commands our actions, not the other way around. Given the Federal Circuit's conclusion that the Board erred in the case underlying this matter, the veteran must be eligible to receive an EAJA award for his appellate victory. 1 Judge Bartley took senior status on June 24, 2026, and did not participate in this matter. 2 Judge Greenberg was a member of the three-judge panel. Unfortunately, he passed away on March 16, 2026, and did not participate in the consideration of this matter by the full Court. 3 While this matter was pending before us, the Federal Circuit decided Greenidge v. Collins, 177 F.4th 1376 (Fed. Cir. 2026). We have considered the Federal Circuit's guidance there in this matter. And, although Greenidge teaches a lot about prevailing party status, we do not find it dispositive of the dispute presented here.  Case: 20-8342 Page: 2 of 23 Filed: 07/16/2026 I. AN AUSPICIOUS APPEAL Before resolving a variety of counterfeit complications the parties drape over the case, we must first rehearse the underlying issues and appellate ratiocinations that delivered us here. According to his service treatment records, Robert L. Stinson experienced a rash on his neck during his time in the Army. Stinson v. McDonough, No. 20-8342, 2022 WL 3152344, at *4-5 (Vet. App. Aug. 8, 2022). Many years after his service concluded, Mr. Stinson found a skin lesion on his shoulder, which was then diagnosed as blastic plasmacytoid dendritic cell neoplasm (BPDCN). Id. at *2. That condition is a rare and aggressive form of cancer characterized in part by the appearance of such skin lesions. Shai Shimoni, et al., Blastic Plasmacytoid Dendritic Cell Neoplasm: 2025 Update on Diagnosis, Pathophysiology, Risk Assessment, and Management, 100 AM. J. OF HEMATOLOGY 1408, 1409 (2025). Mr. Stinson filed a claim for service connection for his BPDCN, which began his odyssey through the VA system. One remand and one VA medical opinion into this journey, the Board of Veterans' Appeals denied service connection because it found that "the evidence weighs against finding that an in-service injury, event, or disease occurred." Record (R.) at 9; see Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004) (requiring an in-service incurrence or aggravation of a disease or injury to prove service connection). Mr. Stinson appealed, averring that the Board erred in three ways: (1) by failing to discuss favorable evidence, including the service treatment records; (2) by relying on an exam that did not address that same evidence; and (3) by failing to seek clarification of a private opinion. Stinson, 2022 WL 3152344, at *4-5. In a single-Judge decision, we found those arguments unpersuasive and affirmed the Board's denial. Responding to the first two of Mr. Stinson's contentions, we determined that the service treatment records were irrelevant to the issue of service connection because the rash noted therein did not appear in the same place as the BPCDN skin lesion. Id. We also explained that it was unnecessary for the Board to seek any clarification of the private opinion because the conditions under which a clarification is required were not met. Id. at *3 (citing Carter v. Shinseki, 26 Vet.App. 534, 545 (2014) (laying out the prerequisites under which the duty to clarify applies)). Mr. Stinson disagreed and appealed, again arguing that the VA exam and the Board's decision were "inadequate because both failed to address . . . his in-service symptoms." Stinson v. McDonough, 92 F.4th 1355, 1359 (Fed. Cir. 2024). This appeal succeeded; the Federal Circuit remanded Mr. Stinson's claim for further development. It determined that this Court engaged in a misadventure of factfinding concerning the service treatment records and impermissibly weighed that evidence in the first instance. Id. at 1361-62 (citing Tadlock v. McDonough, 5 F.4th 1327, 1337 (Fed. Cir. 2021) (holding that "[w]hen questions of fact are open to debate, veterans are entitled to present whatever arguments and evidence they have" to the Board)). Because neither the Board nor a medical expert discussed the service treatment records, the Federal Circuit instructed us to remand the matter to the Board "for further factual development" consistent with their opinion.4 Id. at 1364. We then followed the 4 That court did not consider Mr. Stinson's arguments concerning the clarification of the private medical opinion. Id. at 1360 n.3. We also note that the record shows that Mr. Stinson experienced various symptoms in 2002, but that the Federal Circuit determined that any argument about those other symptoms was forfeited by the veteran. Id. at 1362 n.5 (citing Evans v. Bldg. Materials Corp. of Am., 858 F.3d 1377, 1382 (Fed. Cir. 2017)). The court's 2  Case: 20-8342 Page: 3 of 23 Filed: 07/16/2026 Federal Circuit's directive. Stinson v. McDonough, No. 20-8342, 2024 WL 1953591 (Vet. App. May 3, 2024) (mem. dec.). This brings us to the EAJA application we review today. Under the EAJA, a court may award reasonable fees and expenses to a prevailing party in any civil action against the United States or its agencies. 28 U.S.C. § 2412(d); Scarborough v. Principi, 541 U.S. 401, 405 (2004). Mr. Stinson requested an award of $79,697.39 for the attorney fees and expenses he incurred during his appeal. 5 July 30, 2024, Application for Attorney Fees and Expenses (EAJA Application). The Secretary, however, not only contests this amount as unreasonable, but also contends that Mr. Stinson is unable to qualify for an EAJA award under the statute.6 Secretary's EAJA Response (Resp.) at 5-6. For the reasons that follow, we disagree with that assertion. But although Mr. Stinson is entitled to an EAJA award, we find that he is not entitled to the full amount he requested in his application and subsequent briefing. II. INEXISTENT INTERDICTION Before discussing eligibility, however, we must address Mr. Stinson's assertion that the Federal Circuit's fiat forecloses our consideration of the issue altogether. Pointing to the final section of their decision, he interprets the words "Costs for Mr. Stinson" to mean that the court already found him eligible for an award. Appellant's EAJA Reply Brief (Br.) at 17 (citing Stinson, 92 F.4th at 1364). If this is true, we would not need to examine eligibility because we would be bound by the higher court's ruling on the subject. After initially making an estoppel argument reflecting this point, he reversed course and said that it is instead the "law of the case" that precludes this Court from conducting an eligibility analysis. Appellant's Supplemental Br. at 9-10. We agree that the latter doctrine is more applicable to this matter than is some form of estoppel. See Joan Steinman, Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and Multidistrict Litigation, 135 U. PA. L. REV. 595, 598 n.8 (1987) (explaining that estoppel "prevents litigation of the same issues in successive suits" whereas the law-of-the-case doctrine applies when "issues once decided in a case recur [or are reconsidered] in the later stages of the same case"). Although the law-of-the-case doctrine requires lower courts to "follow the rulings of an appellate court," it does not prevent them from reviewing unexamined issues or findings in the given case. Hudson v. Principi, 260 F.3d 1357, 1364 (Fed. Cir. 2001); Exxon Corp. v. United States, 931 F.2d 874, 877-78 (Fed. Cir. 1991); see Steinman, Law of the Case, at 603. The Federal Circuit did not purport to opine on Mr. Stinson's EAJA eligibility in its decision. Nor did it implicitly decide the matter by discussing either the requirements of such eligibility or the reasonability of any fees or expenses. Cf. Jones v. United States, 125 F.3d 1418, 1426 (11th Cir. 1997) (finding that an order denying an EAJA award did not implicitly prove that the government discussion was limited to the service treatment records. 5 Mr. Stinson originally asked for an award of $80,112.78 but has since conceded that he incorrectly calculated the paralegal billing rate. Appellant's EAJA Resp. at 24. The amount in question is thus $79,697.39. 6 The parties do not dispute that Mr. Stinson's net worth did not exceed $2,000,000 at the time the civil action was filed, see § 2412(d), or the reasonableness of the attorneys' hourly rates. 3  Case: 20-8342 Page: 4 of 23 Filed: 07/16/2026 was substantially justified in their position when that order failed to discuss that issue). Because the question of Mr. Stinson's eligibility for an award contributed nothing to the merits of the Federal Circuit's decision, the law-of-the-case doctrine does not compel us to resolve this matter one way or another. See Exxon Corp., 931 F.3d at 877. Also trenchant is the principle that higher courts like the Federal Circuit are not generally charged with making the first determinations of a party's EAJA eligibility; inferior courts are the appropriate tribunals for such an inquiry. See Dole v. Phoenix Roofing, Inc., 922 F.2d 1202, 1205 (5th Cir. 1991) (en banc); Rose v. U.S. Postal Serv., 774 F.2d 1355, 1363-64 (9th Cir. 1984). The Federal Circuit's decision in Halpern v. Principi, 313 F.3d 1364 (Fed. Cir. 2002), is illustrative of the idea. There, the government asked that court to hold that a veteran who received a remand order was not a prevailing party. Id. at 1369. The Federal Circuit, however, explained that "the ultimate conclusion of whether a party prevailed in an action is one of law based on findings of fact." Id. Because the court could not review our application of law to fact under its jurisdictional statute, see 38 U.S.C. § 7292(d)(2), it could not decide that issue, Halpern, 313 F.3d at 1369. The same principle applies in this case. Had the Federal Circuit discussed the issue of EAJA eligibility, doing so would likely have exceeded its jurisdiction. This Court had not resolved these mixed questions—including the eligibility question—before the Federal Circuit decided the underlying merits issue. See Stinson, 2024 WL 1953591 at *1. Thus, deciding the EAJA matter during the substantive appeal would be an ultracrepidarian exercise by the Federal Circuit's jurisdiction. Without a reason to think otherwise, we doubt that the decision above stealthily engaged in such an exercise, especially when reprimanding this Court for two comparable actions. See Tadlock, 5 F.4th at 1337; Halpern, 313 F.3d at 1369. Our function is to make an initial decision regarding veterans' EAJA applications; if Mr. Stinson disagrees with our decision, he may appeal and take his chances with the Federal Circuit. See Halpern v. Principi, 384 F.3d 1297, 1301 (Fed. Cir. 2004); Jones v. Brown, 41 F.3d 634, 637 (Fed. Cir.1994). We next confront the question of Mr. Stinson's eligibility to receive an award. III. EVIDENT ELIGIBILITY The EAJA is one of several fee-shifting statutes that permit victorious civil claimants to collect the costs of litigation—including attorney fees and expenses—from the federal government rather than bear those costs themselves. Scarborough, 541 U.S. at 404-05. But before Mr. Stinson may benefit from that statute, we must find that he satisfies two prerequisites: that he is a prevailing party and that the Secretary was not substantially justified in his litigation positions. See Comm'r, Immigr. & Naturalization Serv. v. Jean, 496 U.S. 154, 161-63 (1990). Lost within the many arguments Mr. Stinson advanced about these requirements, the Secretary "tightened the knot of confusion into perfect misunderstanding" and argued that neither prerequisite was satisfied. Cf. T.S. ELIOT, THE FAMILY REUNION 21 (1939). The resolution of the underlying appeal, however, was simple: one allegation of administrative error was implicitly accepted by the Federal Circuit and sent back for correction by the Agency. And that is all that is required to establish eligibility for an EAJA award. 4  Case: 20-8342 Page: 5 of 23 Filed: 07/16/2026 A. Mr. Stinson Prevails Because "liability on the merits and responsibility for fees go hand in hand," it makes sense that only a "prevailing party" should be eligible under a fee-shifting statute. Kentucky v. Graham, 473 U.S. 159, 165 (1985). The Supreme Court states that claimants are prevailing parties "'if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'" Hensley (C. Duane) v. Eckerhart, 461 U.S. 424, 433 (1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-279 (1st Cir. 1978)). If Mr. Stinson is a prevailing party, he must have therefore obtained "at least some relief on the merits of his claim" such that the relationship between him and the Secretary was "'materially altered'" by the litigation. See Farrar v. Hobby, 506 U.S. 103, 111 (1992) (quoting Tex. State Teachers Ass'n. v. Garland Indep. School Dist., 489 U.S. 782, 793 (1989)). We tackle these two requirements for prevailing party status in turn. 1. Administrative Error Remand orders do not generally prove "relief on the merits" because those orders are not dispositive of the ultimate claim. See Shalala v. Schaefer, 509 U.S. 292, 300-01 (1993) (discussing Social Security benefits). Still, remands to an agency provide sufficient relief on the merits because "[a]n appeal of an agency decision is treated as a separate proceeding from the administrative proceeding." Dover v. McDonald, 818 F.3d 1316, 1319 (Fed. Cir. 2016). The Federal Circuit explained that, when a claimant "secures a remand requiring further agency proceedings because of alleged error by the agency," the claimant qualifies as a prevailing party "without regard to the outcome of the agency proceedings where there has been no retention of jurisdiction" by the remanding tribunal. Former Emps. of Motorola Ceramic Prods. v. United States, 336 F.3d 1360, 1366 (Fed. Cir. 2003); Davis v. Nicholson, 475 F.3d 1360, 1364 (Fed. Cir. 2007). A qualifying remand order may be either implicitly or explicitly based on administrative error. Robinson v. O'Rourke, 891 F.3d 976, 980-81 (Fed. Cir. 2018). Over the years, this Court and the Federal Circuit have been careful not to confer prevailing party status upon a veteran following a remand that did not find Board error. See Davis, 475 F.3d at 1364; Akers v. Nicholson, 409 F.3d 1356, 1359 (Fed. Cir. 2005); Vaughn v. Principi, 336 F.3d 1351, 1360 (Fed. Cir. 2003). The Secretary asks that we act as gatekeeper once again, arguing that the remand here was based on judicial error and discretion, not on an administrative error by the Board. Secretary's Reply Br. at 6-17. To faithfully do so, we adopt a holistic understanding of the underlying decision, including both the remand instructions and their surrounding circumstances. See Davis, 475 F.3d at 1365 ("[D]etermination of agency error is not limited to the four corners of the Remand Order."). Our May 2024 single-Judge decision remanded Mr. Stinson's case "for further factual development and readjudication consistent with the Federal Circuit's decision." Stinson, 2024 WL 1953591, at *2. And the Federal Circuit's antecedent disposition directed us to remand to the Board "for further factual development consistent with this opinion, including whether Mr. Stinson's in- service symptoms support a manifestation of BPDCN." Stinson, 92 F.4th at 1364 (emphasis added). Because it remains the controlling authority, we search the Federal Circuit's remand instructions and reasoning (rather than our own) to find any implication of Board error. 5  Case: 20-8342 Page: 6 of 23 Filed: 07/16/2026 But we get ahead of ourselves, for we must first grapple with the law of discretionary remands before we can consider the presence of such an error. According to the Secretary, the Federal Circuit's remand order could not implicate administrative error because Mr. Stinson's arguments were made for the first time before this Court. Secretary's Br. at 14-16; Stinson, 92 F.4th at 1359 (observing that Mr. Stinson's arguments were newly raised and could therefore be rejected under the doctrine of issue exhaustion). Our analysis surely stalls if he is correct; a discretionary remand does not confer prevailing party status on a claimant. See Robinson, 891 F.3d at 982, 983. Although the Federal Circuit discussed that Mr. Stinson's arguments were newly raised ones, its discussion was limited to reiterating that choosing to address a new argument does not allow us to "find facts or weigh evidence in the first instance when entertaining a newly raised issue." Stinson, 92 F.4th at 1363. It therefore falls on this Court to determine the nature of the remand. Discretionary remands occur after the Court chooses to consider a newly raised issue and decides to return the case to the Board as a result of that issue. Just because we are the first to hear an argument, however, does not always mean that our resultant remand is discretionary. Only if neither the claimant nor the record raised the issue to the Board do we have the discretion to not hear the new argument about that issue. Id. Put differently, the axiomatic legal requirement that the Board must address all issues raised by the claimant or reasonably raised by the record remains in play. See Robinson v. Peake, 21 Vet.App. 545, 552-53 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). While we caution the Board not to insert itself into new arguments abandoned by counsel, see Massie v. Shinseki, 25 Vet.App. 123, 131 (2011), we do not treat issues reasonably raised by the record as truly "new" for purposes of issue exhaustion, see Robinson, 21 Vet.App. at 552-53. The Board still errs by not addressing such a theory, and a remand from the Court that alleviates the administrative error is not considered discretionary. For this reason, the Federal Circuit has explained, "an argument that the Board failed to consider evidence contained in the record, which supports a veteran's established legal claim" is generally not the kind of new argument that is subject to issue exhaustion or a discretionary remand. Bozeman v. McDonald, 814 F.3d 1354, 1358 (Fed. Cir. 2016). And we have likewise recognized that, even if a court does not expressly say so, a remand to have the Board address evidence already in the record that helps support an argument raised below is a remand to correct Board error, not a discretionary remand that does not carry with it prevailing party status. Blue v. Wilkie, 30 Vet.App. 61, 72-3 (2018). Looking past the four corners of the Federal Circuit's remand, see Davis, 475 F.3d at 1365, we find that the court's reasoning implied that the Board failed to discuss an issue reasonably raised by the record, see Robinson, 891 F.3d at 980-81. To be sure, the court faulted us for finding facts and weighing the evidence in the first instance regarding the newly raised arguments; correcting that mistake could not provide Mr. Stinson with relief on the merits. Stinson, 92 F.4th at 1362. But the court's reasoning went further, making a finding separate from the one regarding judicial error. We are accordingly convinced that the remand was nondiscretionary. In its decision, the Federal Circuit said that the BPDCN lesion located on Mr. Stinson's upper back "may have overlapped with the back of his neck," which was the location of the rash noted in the service treatment records. Id. at 1361. For that reason, our finding that the two symptoms materialized in separate locations was, in fact, "open to debate" such that it was 6  Case: 20-8342 Page: 7 of 23 Filed: 07/16/2026 impermissible to confidently say in which location the lesion giving rise to Mr. Stinson's BPDCN first emerged. Id. (citing Tadlock, 5 F.4th at 1337). This reasoning leaves little doubt that the circuit court endorsed the theory that Mr. Stinson's BPDCN lesion on his upper back might have overlapped with the in-service rash on the back of his neck. It even flagged the Board's need to address that theory as a consideration separate from the issue of impermissible adjudication from this Court. Id. at 1361-63. From that reasoning follows the implicit and inevitable conclusion that the Federal Circuit believed that the question concerning the relative location of the two lesions was reasonably raised by the record. Moreover, the court's characterization of the service treatment records as evidence "open to debate" indicates that one view of those records would be favorable to Mr. Stinson. See id. at 1361-62. We thus read the Federal Circuit's decision as assigning some fault to the Board for failing to consider that evidence, as it was charged with doing. See id.; Estevez v. McDonough, 36 Vet.App. 157, 174 (2023) (explaining that the Board must discuss all evidence potentially favorable to the veteran) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table)). Because this central issue was reasonably raised by the record, the Board's failure to discuss the records constituted administrative error despite the procedural posture of these arguments. See Robinson, 21 Vet.App. at 552-53. And, for that reason, we understand Mr. Stinson to have achieved relief on the merits of his appeal. To reemphasize: the Secretary is correct when he interprets the thrust of the decision above as being about the error we committed by resolving disputed factual questions in the first instance. We also accept that the focus of the decision was on our inability to exceed our statutory jurisdiction when choosing to address a newly raised argument. But reading the decision as only chiding this Court disregards the Federal Circuit's specific findings concerning the in-service symptoms noted in the record, especially the finding that the location of Mr. Stinson's BPDCN lesion could have overlapped with his in-service rash. See Stinson, 92 F4th at 1361. As we explained, that finding showed that the issue involving the lesion's location was reasonably raised by the record and was therefore not a newly raised issue. See Robinson, 21 Vet.App. at 552-53. And by relaying how one view of the service treatment records could support Mr. Stinson's claim rather than simply pointing out that the location of the lesion was in dispute, the Federal Circuit also made an implicit finding that the Board failed to address potentially favorable evidence. See Caluza, 7 Vet.App. at 506. The dissent reminds us of the Federal Circuit's jurisdictional limitations. See post at 19-23. This Court's jurisdiction, however, is also limited; we review decisions by the Board, not decisions by the Federal Circuit. 38 U.S.C. §§ 7252, 7292. Indeed, even if the Federal Circuit made a mixed finding of law and fact, "an inferior court has no power or authority to deviate from the mandate issued by an appellate court." Briggs v. Penn. R. Co., 334 U.S. 304, 306 (1948) (citing Himley v. Rose, 9 U.S. (5 Cranch) 313, 317 (1809)). No matter whether or not the Federal Circuit could have engaged in factfinding concerning the location of Mr. Stinson's in-service rash and whether one view of that location could favor Mr. Stinson, its decision made clear that it did exactly that. See Stinson, 92 F4th at 1361-62. And we are bound by the terms of that opinion. See Kovacs v. United States, 739 F.3d 1020, 1024 (7th Cir. 2014) ("The lower court is bound, through the mandate rule, to the resolution of any points that the higher court has addressed."). Of course, it is possible that we misunderstood the Federal Circuit's decision to discuss the Board's statutory obligations 7  Case: 20-8342 Page: 8 of 23 Filed: 07/16/2026 separately from our own, and that court could set us straight should the opportunity arise on appeal. See 38 U.S.C. § 7292. To be clear, this is not a concession that the Federal Circuit erred in its factfinding. If we look at the circuit court's discussion as determining that there was sufficient evidence in the record to reasonably raise the issue of the rash's location to the Board as a matter of law, its conclusion is less jurisdictionally suspect. See Thomas v. McDonough, 97 F.4th 850, 853-54 (Fed. Cir. 2024); Kelly, 463 F.3d at 1352-53 (holding that the Federal Circuit can decide questions as a matter of law). Consistent with that view, the court could hold that the remand order was not discretionary and that the Board erred by not discussing the evidence, all while staying within the confines of its jurisdiction. See Robinson, 21 Vet.App. at 552-53. And that outlook makes sense after reading the decision above; only after the court detailed the open question concerning the location of the in-service rash did they continue, chastising us for our initial factfinding and weighing of evidence. Stinson, 92 F4th at 1361-63. Ours is not to question why. A perlustration of the Federal Circuit's decision shows that it discovered a view of the service treatment records that supported Mr. Stinson's case and that the Board needed to address the matter. Thus, the circumstances surrounding the remand order implicitly assigned some error to the Board for its failure to discuss that evidence. See Robinson, 891 F.3d at 983 (explaining that the remand order in that case could not have explicitly found agency error given jurisdictional limits and then finding that the remand also had no implicit findings of error). Because the contours of the circuit court's remand implied that finding of administrative error, we conclude that Mr. Stinson achieved relief on the merits of his appeal and thereby advances one step closer to his EAJA award. 2. Material Alteration We now turn to the second prong of the "prevailing party" inquiry, which requires that the Federal Circuit's decision and our later remand must modify "the defendant's behavior in a way that directly benefits the plaintiff." Farrar, 506 U.S. at 111-12. The Supreme Court has held that "enforceable judgments on the merits" create the material alteration required to order an EAJA award. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health and Human Res., 532 U.S. 598, 604 (2001); see Motorola, 336 F.3d at 1364. And the Federal Circuit explained that "where the plaintiff secures a remand requiring further agency proceedings because of alleged error by the agency, the plaintiff qualifies as a prevailing party" no matter the outcome if the court does not retain jurisdiction. Motorola, 336 F.3d at 1364. Under this rubric, the relationship between VA and Mr. Stinson materially changed when this Court and the Federal Circuit required the Agency to further develop its facts by considering evidence of in-service symptoms. This is because Mr. Stinson is now able to rely on the Federal Circuit's and our remand order for new proceedings and the consideration of certain evidence. See Farrar, 506 U.S. at 113. And unlike in many cases where there is no material change in the legal relationship, this case happened on the merits and resulted in a judicially sanctioned and enduring decree. See Lackey v. Stinnie, 604 U.S. 192, 202 (2025) (holding that the overturning of directed verdicts and discovery orders, a declaratory judgment that had no effect, and a 42 U.S.C. § 1988 judgment that was mooted did not materially change a legal relationship). 8  Case: 20-8342 Page: 9 of 23 Filed: 07/16/2026 In other words, the material alteration requirement is met because the Agency is now required to take an action it would not have done without the litigation—consider evidence of Mr. Stinson's symptoms before 2011. See Hewitt v. Helms, 482 U.S. 755, 761 (1987). Although the ultimate question of whether there was evidence of an in-service incurrence of his condition such that service connection may be granted has not been resolved at this stage, the Federal Circuit explained that the action produced by the judgment is further agency proceedings over which we lose jurisdiction after the remand (as we have done after carrying out the remand order). See Motorola, 336 F.3d at 1364. B. Unjustified Positions The burden now shifts to the government to show that the Secretary's position during the administrative and appellate levels was substantially justified. See 28 U.S.C. § 2412(d)(2)(D); Locher v. Brown, 9 Vet.App. 535, 537 (1996). Under Supreme Court precedent, the government must show that its position "has a reasonable basis in law and fact." Pierce v. Underwood, 487 U.S. 552, 565, 566 n. 2 (1988). In Stillwell v. Brown, 6 Vet.App. 291, 302 (1994), we articulated a test to aid in our application of Pierce and Federal Circuit caselaw: our determination should be "based upon the totality of the circumstances, including merits, conduct, reasons given, and consistency with judicial precedent and VA policy with respect to such position, and action or failure to act, as reflected in the record on appeal and the filings of the parties." Our analysis above essentially resolves this question in favor of Mr. Stinson's application. At the administrative stage, the Board was required to address all potentially favorable evidence. But the Board failed to meet this requirement; the service treatment records contained potentially favorable evidence of symptoms that occurred in service and the Board did not discuss that evidence. Because the Board was required as a matter of law to discuss such evidence, the Secretary's position at the administrative level was unjustified: it contradicted precedent and VA's statutory directives, resulting in an inadequate statement of reasons or bases. IV. AN ACCEPTABLE AWARD Given that EAJA awards shift costs to the taxpayers, we have a "special responsibility" to award claimants "only those fees and expenses actually needed to achieve the favorable result." Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004); Smith v. McDonough, 995 F.3d 1338, 1344 (Fed. Cir. 2021). The Secretary argues that we should use our discretion in awarding fees and expenses to reduce the award to about $31,845. Secretary's EAJA Resp. at 30; see Baldridge v. Nicholson, 19 Vet.App. 227, 223 (2003). When calculating attorney fees under this standard, we will only compensate a party for the time an attorney spent on activities for which a private client would customarily be billed. Oliveira v. United States, 827 F.2d 735, 744 (Fed. Cir. 1987). Our barometer for measuring EAJA reasonableness is articulated by a test formulated in our decision in Andrews: (1) are the hours facially unreasonable; (2) do the factors set out in Hensley, 461 U.S. at 430 n.3, or Ussery v. Brown, 10 Vet.App. 51, 53 (1997), support the application;7 and (3) are they convincingly opposed by the 7 The 12 Hensley factors are: 9  Case: 20-8342 Page: 10 of 23 Filed: 07/16/2026 Secretary? 17 Vet.App. at 321. "Although some factors might theoretically collide or blend, each might stand out to a reviewing court as a reason to reduce or grant an EAJA award in practice." Duckett v. Collins, 39 Vet.App. 16, 25 (2025) . The descriptions of the logged hours are sufficiently specific for us to review for the Secretary's arguments targeting duplicative or unnecessary billing. See Andrews, 17 Vet.App. at 321. The Secretary additionally disputes the reasonableness of the number of hours Mr. Stinson's attorneys spent on certain activities, which we likewise review below. A. The Work of Multiple Attorneys We first consider whether a reduction is warranted because tasks were discussed by or completed by Mr. Stinson's team of 11 lawyers. "[I]n a case with multiple counsel, each counsel may be allowed fees under EAJA based on the distinct contribution of that individual counsel." Baldridge, 19 Vet.App. at 237 ("[T]he application must demonstrate that multiple lawyers are not unreasonably doing the same work."). To aid our determination of whether a reduction is needed, the Baldridge court offered several factors to consider: "(1) the complexity of the case, (2) the need for specialized knowledge, (3) whether the case presents an important issue of first impression, (4) the magnitude of the tasks involved in the litigation, and (5) identification of the specific and distinct tasks assigned to each lawyer." Id. at 237-38. The fifth factor in this analysis is especially helpful when conducting our review. The Secretary particularly focuses on several aspects of the legal operation, starting with the oral argument preparation. As discussed below, such preparation necessarily requires practice and communication with colleagues to simulate and anticipate an actual argument in the Federal Circuit. But some work from four relatively uninvolved attorneys seems to duplicate work of the attorney shepherding the arguing attorney through the process. See id. Thus, a marginal reduction for duplication of work regarding oral argument work is in order, particularly because the lead attorney has experience in litigating veterans' claims. Next, the Secretary asserts that a range of hours the attorneys spent emailing one another were duplicative. His explanation that it is unclear what tasks each attorney was responsible for, however, is not further elaborated. And the application specifies the subject matter of those emails and communications, many of which concerned the principal attorneys on the case and dealt with legal research and appellate strategy, which are tasks that we should expect attorneys to discuss and clarify together at these stages of litigation, so long as each attorney adds some value to the (1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the skill requisite to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee; (6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the "undesirability" of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases. 461 U.S. at 430 n. 3. And the distinct Ussery factors are (1) whether the hours were duplicative, (2) if the attorney took additional time due to inexperience, and (3) were there attorney hours for jobs that could have been performed by non-attorneys. 10 Vet.App. at 53. 10  Case: 20-8342 Page: 11 of 23 Filed: 07/16/2026 discussion. Without a better argument as to why these exchanges are unreasonable, we will not seriously reduce the EAJA award on this basis. See Ussery, 10 Vet.App. at 54. That said, at various points throughout the exchanges listed in the application, it seems that one attorney charges more time for certain email exchanges than a different attorney. See, e.g., EAJA Application at xiii, xvi, xvii. This is worrying because the application fails to explain the roles the two attorneys have such that this discrepancy was reasonable, and so we will consider a slight reduction to offset the few hours encompassed by this unexplained discrepancy. Similarly, multiple attorneys edited the briefing before the Federal Circuit; the application did not describe why multiple attorneys needed to provide edits to a draft brief or how each one contributed to the editing process. Thus, a small reduction will be imposed due to this issue. See id. at iv-vi. Although employing a team of attorneys is not generally unreasonable, there is evidence to suggest that some duplicity and unreasonable billing took place, especially when the Baldridge factors are applied. Aside from the specific instances described above, we should note that the issues in this appeal are commonplace in VA litigation, that (aside from the EAJA application) this does not concern an issue of first impression, and that there were times where the application could have been more specific regarding the role of each billing attorney. See Baldridge, 19 Vet.App. at 237-38