concurring in part and dissenting in part:
I regret that I am unable to join in most of the well-written and scholarly opinion of the Court. I do concur in part II.B.2.b., regarding the inapplicability to the Court of subsection (b) of 28 U.S.C. § 2412. See Cook v. Brown, 6 Vet.App. 226, 233-36 (1994), appeal docketed, No. 94-7073 (Fed.Cir.1994).
I. SUMMARY
However, for several reasons, I respectfully dissent with respect to the Equal Access to Justice (EAJA) application submitted under 28 U.S.C. § 2412(d). First and foremost, despite its emphatic protestations to the contrary and its attempt to evoke the appearance of a balanced case-by-case approach, ante at 280-81, 286, analysis of the underlying Court opinion suggests that the majority is headed toward a rule that no EAJA award is permissible whenever the Court’s holding on the law in the underlying merits decision was a matter of first impression for this Court.1 As I will attempt to show below, there is much precedent to the contrary, some of which the Court acknowledges, but the significance of which it then proceeds to ignore.
Second, I dissent because-1 believe that the Secretary’s position in the underlying merits case as well as in the litigation before this Court was not substantially justified; most particularly, the government has not even remotely carried its burden of showing that it was substantially justified in adopting the regulation struck down in the underlying opinion as “an unauthorized limitation on the scope of 38 U.S.C.[] § 5503”. Felton v. Brown, 4 Vet.App. 363, 371 (1993). The majority attempts to carry the burden for the Department of Veterans Affairs (VA), and does so valiantly, but that is not this Court’s proper function in deciding applications for attorney fees under the EAJA.
II. ANALYSIS
In order for the government to prevail in defending against an EAJA application, it must show that its position was substantially justified in both the underlying action at the agency level and in its litigating posture when its administrative action was challenged in court. See 28 U.S.C. § 2412(d)(1)(B), (2)(D); Stillwell v. Brown, 6 Vet.App. 291 (1994), appeal docketed, No. 94-7090 (Fed.Cir. June 20, 1994); Cook, 6 Vet. App. at 237; Community Heating & Plumbing Co. v. Garrett, 2 F.3d 1143, 1145 (Fed.Cir.1993); Gavette v. OPM, 808 F.2d 1456, 1467 (Fed.Cir.1986) (en banc). Here, VA has shown neither.
*288A. Government’s Position in Departmental Proceedings
The government’s position in the VA administrative proceedings has two parts: First, VA’s action in adopting the invalidated regulation, 38 C.F.R. § 3.558(c)(2) (1993); and, second, VA’s adjudicative actions in denying the claim for the lump-sum payment of withheld compensation benefits. As to the latter, absent an arbitrary or bad-faith decision by the Board of Veterans’ Appeals (Board), which did not occur here, a Board misapplication of the law would not be unreasonable if carried out, as it was here pursuant to a duly-prescribed VA regulation, because the law provides that “the Board shall be bound in its decisions by the regulations of the Department”, 38 U.S.C. § 7104(c).
However, the Department has put forth absolutely no defense of its actions in adopting the regulation.2 Rather, the majority, in an extensive analysis, which was not included in the underlying merits opinion here, of the legislative and regulatory history of the invalidated regulation, seeks to provide that defense on the Secretary’s behalf. As this Court observed in MacWhorter v. Derwinski, 2 Vet.App. 133, 135-36 (1992): “We think it fair to observe that the function of any federal court does not include comprehensive record analysis and research for the government’s side of a case.... [I]t is unthinkable that the Court fill the role of the Secretary while resolving the appeals before it.”3 In Cook, the Court held that the Secretary’s concession of the applicant’s allegation that “the Secretary’s position ... was [not] ‘substantially justified’, either in the administrative adjudication process ... or in the litigation of the appeal here”, was dispositive of those questions in that case. Cook, 6 Vet. App. at 237. Because VA has not contested in this case the lack of substantial justification for its administrative action in adopting the regulation, the Secretary has implicitly conceded it and this implicit concession should be similarly dispositive.
In any event, assuming that the Secretary’s implicit concession is not dispositive, on the merits of the question whether the Secretary’s promulgation of the offending regulation had “a reasonable basis in law and fact”4 I would find much guidance in the Seventh Circuit’s action in sustaining an EAJA-fee award by the Chief Judge of the Northern District of Illinois,5 who had rejected the Secretary of HHS’ defense of the Department’s prelitigation issuance of Social Security Act regulations which the Supreme Court had invalidated as “manifestly contrary to the statute” and in excess of the Secretary’s statutory authority. Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir.1994). The Seventh Circuit first noted that the district court’s finding, which was not reversed, that the HHS litigation position was substantially justified because of “uncertainty in the law arising from conflicting authority or the novelty of the question [which] weighs in the government’s favor when analyzing the reasonableness of the government’s litigation position”. Id. at 1037. However, the court of appeals affirmed the district court’s holding that those same factors did not provide substantial justification for the HHS pre-litigation adoption of the regulations (even though those regulations had been upheld by *289at least two circuits against the same attack that had ultimately prevailed in the Supreme Court) in view of “the strong disapproval of the ... regulations among the [six] circuit courts” whose positions refuted “the Secretary’s contention that the questions involved were close ones.” Id. at 1038.6
So, in Marcus, the Seventh Circuit affirmed a district court finding of a lack of substantial justification in the government’s having adopted the invalidated Social Security regulations, because “the questions involved were [not] close ones”, ibid, despite the fact that there was a split of authority among the circuits on the invalidity of the regulations and even though the position of the government was held to be reasonable in litigating the issue in court. The majority is wide of the mark when it attempts to distinguish Marcus by asserting that “there was no chorus of circuit courts of appeals expressing ‘strong disapproval’ of the regulation adopted by VA prior to the litigation” in our case. Ante at 282. The significance of Marcus, as I have attempted to point out, is that even though at least two circuits had sustained the regulation the Seventh Circuit nonetheless concluded that the questions involved in determining the validity of the regulation were not even “close ones”. This is quite a different matter from determining the reasonableness of the government’s litigating posture in the face of a split of authority among the circuits.
Furthermore, although it is certainly true that a decision adverse to the government on the merits does not automatically lead to a finding of no substantial justification, a court must carefully heed the evaluation of the government’s position set forth in the underlying merits decision. It is well established that the substantial-justification inquiry should not lead to a retrying of the merits of the case. See, e.g., Pierce v. Underwood, 487 U.S. 552, 563, 108 S.Ct. 2541, 2549, 101 L.Ed.2d 490 (1988) (“a ‘request for attorney’s fees should not result in a second major litigation’ ”) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). Therefore, courts should in the main look to the underlying decision to provide the basis for determining the reasonableness of the government’s position. As the Third Circuit stated: “[I]t is essentially the relevant portions of the record in the underlying action which must be examined”. Brinker v. Guiffrida, 798 F.2d 661, 664 (3rd Cir.1986). In Devine v. National Treasury Employees Union, 805 F.2d 384, 386 (Fed.Cir.1986), the Federal Circuit relied substantially on the position taken by the “merits panel of [the underlying] case” in reaching a decision that the government’s position was not substantially justified. See also Cabot Corp. v. United States, 788 F.2d 1539, 1539 (Fed.Cir.1986) (relying, in awarding EAJA fees, on merits opinion which held that government position was “beyond the pale of reasonableness”). In the instant case, the majority, rather than relying on the opinion and record in the underlying action, has presented its own justification for the Secretary’s promulgation of the regulation. As the analysis in part II.B.2., below, illustrates, the majority has, in effect, turned its back on the analysis in the Court’s own opinion invalidating the regulation.
B. Government’s Position in Litigation
1. Federal Precedent: As noted earlier, there is much precedent in federal caselaw for the proposition that the mere fact that an agency is litigating a matter of first impression does not establish that its position in doing so is substantially justified. In Devine v. Sutermeister, 733 F.2d 892, 895 (Fed.Cir.1984), the Federal Circuit concluded: “In some contexts, the novelty or importance of the issues presented may validate, for purposes of substantial justification, an otherwise marginal appeal by the government.... In this case, however, the novelty of the government’s position cannot compensate for the paucity of support in favor of that position.” Accord L.G. Lefler, Inc. v. United States, 801 F.2d 387, 388 (Fed.Cir.1986) (awarding EAJA fees despite government argument that “case presented a legal, issue of first impression”). Similarly, in Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir.1988), the Ninth Circuit stated that “[a] lack of judicial precedent adverse to the government’s position does not preclude a fee *290award under the EAJA.” And in Keasler v. United States, 766 F.2d 1227, 1284 (8th Cir.1985), the Eighth Circuit stated: “That a case presents an issue of first impression in the forum does not ipso facto make the government’s position in the litigation reasonable.” See also Federal Election Comm’n v. Political Contributions Data, Inc., 995 F.2d 383, 387 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1064, 127 L.Ed.2d 384 (1994) (“It would be hard to imagine how it could be held that one had been ‘substantially justified’ in defying the will of Congress”); Curry v. Block, 608 F.Supp. 1407, 1415 (S.D.Ga.1985) (Court stated in holding Government’s litigation position not substantially justified: “[Njovelty of the ... issue did not entitle the Government to advocate an alternative, and unreasonable, interpretation of the statute”).
Particularly appropriate to this ease is the district court’s admonition7 in Preston v. Heckler, 596 F.Supp. 1158, 1160 (D.Alaska 1984):
While the fact that the government litigates a position for the first time may be relevant to a determination of its justification, there is nothing in the EAJA or the appellate decisions cited to suggest that an agency’s position is substantially justified until tested in a court of law or because its position goes years without challenge.
To the same effect was the district court in Hope v. United States, 1988 WL 47819, at *2, 1988 U.S.Dist.LEXIS 4194, at *3-4 (E.D.La. May 12, 1988):
If a “novel” interpretation is not credible, a substantial justification finding is not warranted .... In this case, the government persisted in its actions throughout the trial and appellate courts notwithstanding that the Temporary Regulations were plainly inconsistent with the underlying statutes and legislative intent. It is true that this [i]s a case of first impression; however, the government’s interpretation was not credible.
In the same vein, as the majority points out, ante at 280-81, there is also much precedent for the proposition that the fact that an executive agency regulation or policy has been in effect for many years and has not been previously challenged does not demonstrate that the agency’s position was substantially justified. See, e.g., Andrew v. Bowen, 837 F.2d 875, 879 (9th Cir.1988); Edwards v. Griepentrog, 783 F.Supp. 522, 525 (D.Nev.1991). This proposition seems particularly applicable to the invalidation of a VA regulation by this Court in view of the Federal Circuit’s admonition that the fact that “[m]any VA regulations have aged nicely simply because Congress took so long to provide for judicial review.... counsels for vigorous review” of, not deference to, “VA’s long-standing regulations”. Gardner v. Brown, 5 F.3d 1456, 1463-64 (Fed.Cir.1993), aff'd, - U.S. -, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994).8
2. Underlying Court Opinion: In the instant case, the Court’s underlying merits opinion concluded that the regulation was invalid because it violated the plain meaning of the statute. The Court quoted Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, — U.S. -, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994), to the *291effect that where ‘“a statute’s language is plain, and its meaning clear, no room exists for construction. There is nothing to construe.’ The language of the statute, taken in context, mandates payment to the veteran”. Felton, 4 Vet.App. at 369 (emphasis added) (citation omitted). The Court looked at legislative history only briefly and then only to conclude that it “reinforces our interpretation of the plain meaning of the legislative language.” Ibid, (emphasis added).
The Court characterized the Secretary’s position as asking the Court to “interpret subparagraph (B) in a vacuum, without reference to its overall context”, and rejected that approach, concluding as follows “from reading the text of paragraph (1) as a whole”: “[Sjubparagraph (B) mandates payment of those suspended payments in a lump sum”, ibid, (emphasis added); “Congress ... clearly wanted payment of the benefits to be suspended, not terminated, during institutionalization; thus, if the veteran regained competency and was no longer institutionalized, the veteran could then enjoy those benefits which had been temporarily suspended”, id. at 369-70 (emphasis added); “[i]t is clear that it is contrary to the language and purpose of the statute to deny the veteran his lump-sum compensation”, id. at 370 (emphasis added); and the “restriction [imposed by the regulation] is clearly in contravention of the statute, and_is an unauthorized limitation on the scope of 38 U.S.C.[ ] § 5603”, id. at 371 (emphasis added).
In reaching its conclusion that the regulation was invalid, the Court found the regulation “ ‘contrary to clear Congressional intent’ ”. Id. at 370 (emphasis added) (quoting Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984)).
Having made this bed, the majority now decides to lie elsewhere. Faced with the apparently unattractive task of having to award EAJA fees unless it can make the case which the Secretary has notably failed to make9 (and which the Court itself did not even remotely suggest in the underlying merits opinion which the majority now chooses largely to ignore10), the majority has, in effect, rewritten the underlying opinion. In the process, the majority has also rewritten the rules of logical analysis by its apparent conclusion that the regulatory history, that it now goes to such lengths to depict, has no bearing on the question of whether the regulation was authorized by the pertinent statute. Ante at 286. Yet the entire thrust of that remarkable post-faeto regulatory-history rationalization would seem to be that there were indeed gaps in the statute which it was reasonable for the Secretary to try to fill through interpretation and then regulation.
Indeed, so taken is the majority with its adopted role as surrogate Secretary that it now finds that the statutory scheme left “blanks” “open” and “questions ... unanswered”, ante at 286-87, whereas the Court had unanimously concluded in the underlying opinion that the plain meaning of the very same statutory scheme left “nothing to construe” and “mandates payment to [the] veteran”, thus requiring invalidation as “contrary to clear Congressional intent” of the regulation which denied that very payment. In the words of my esteemed colleague in the majority, “presto, we are left with [an] incredible result”. Sarmiento v. Brown, 7 Vet.App. 80, 87 (1994) (Kramer, J., concurring).
One could perhaps reasonably surmise that the reason why the so-called regulatory his*292tory analysis was not included in the Court’s underlying opinion was that it is fundamentally at odds with the analysis of the Court in that opinion, not that it was not relevant to the question then before the Court.
As the foregoing discussion and quoted excerpts illustrate, the Court in the underlying opinion did not find that the statutory question involved was a complicated, complex, or close one or that the statutory provisions were confusing or in need of substantial interpretation. It is in those circumstances that the government’s advocacy of a rejected position on a novel question of law should be held to be substantially justified. For example, in Stillwell the Court denied EAJA fees after stressing that the statutory and regulatory framework that was involved presented “a ‘confusing tapestry' in which the meaning is not easily discerned”. Stillwell, 6 Vet.App. at 303 (citation omitted). Accord Gregory v. Brown, 7 Vet.App. 127, 128-29 (1994) (denying EAJA fees in the ease on which the underlying Stillwell decision was based in terms of its legal conclusion as to the invalidity of a regulation); Pottgieser v. Kizer, 906 F.2d 1319, 1324 (9th Cir.1990) (no EAJA fees where Secretary’s interpretation of “complex” Social Security statute was reasonable); cf. Oregon Natural Resources Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir.1992) (awarding EAJA fees where “analysis was neither complex nor extraordinary” in the underlying merits case that had held that a particular statute required issuance of regulations).11
In my view, when this Court holds that an agency’s interpretation of the law violates the clear and plain meaning of the statute, the Secretary, who has the burden of demonstrating substantial justification, has a heavy burden to carry to persuade the Court that both his adoption of the regulation and his litigating posture were reasonable as a matter of law. See Stillwell, supra. Again, I am not contending that EAJA fees should automatically be available in such a case or that it would not be possible for the Secretary to carry his heavy burden of persuasion. My position is that I am not persuaded that the Secretary has carried that burden here, given the plain meaning and clarity of the statutory provision in question, as stressed repeatedly by the Court in its underlying opinion. Given the Court’s analysis of the regulation in the underlying opinion in Felton, supra, if this Court is not adopting a per se case-of-first-impression exception,12 one is left to wonder in what circumstances the majority would ever award EAJA fees when a regulation is invalidated in the underlying case.
3. Court’s Discretion: Finally, it must be remembered that we are acting on this EAJA application as the trial court, “in an area described as quintessentially discretionary in nature,” Chiu v. United States, 948 F.2d 711, 715 n. 4 (Fed.Cir.1991); Stillwell, 6 Vet.App. at 302. In exercising that discretion, we must be mindful of the purpose of Congress in 1992 in enacting legislation to extend the EAJA to appeals in this Court after the Court had specifically held that the Act did not apply. Jones v. Derwinski, 2 Vet.App. 231, 233-35 (1992) (en banc) (consolidated with Karnas v. Derwinski, No. 90-312) [hereinafter Jones and Karnas I]. At that time, both Judiciary Committees explained that their intent was to apply to veterans the objective of the EAJA in order “to eliminate financial deterrents to individuals attempting to defend themselves against unjustified Government action” and noted that the Court’s holding in Jones and Karnas I, supra (that the EAJA was not applicable to appeals to this Court) that Congress was “overruling” had “resulted in a substantial burden on veterans bringing cases to *293[this] court ... [where] a majority of cases are being brought pro se” and where “[veterans are exactly the type of individuals the statute [EAJA] was intended to help”. Cook, 6 Vet.App. at 235 (quoting Committee reports). The kind of ease-of-first-impression-litigation exemption that the Court appears to be granting the government here would be inconsistent with that Congressional purpose since eases in which this Court strikes down a Department regulation as violative of the plain meaning of the statute are quite rare13 and are exactly the type of eases that EAJA was designed to encourage claimants to litigate. It seems particularly ironic — and basically inequitable — that the Court will award EAJA fees to an appellant who wins a remand because of a BVA decision’s failure to comply with the Court’s prior opinion in Gilbert v. Derwinski, 1 Vet.App. 49, 59 (1990), requiring an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1), a result which benefits only one VA claimant,14 whereas an appellant, such as the one before us, who succeeds in an appeal that invalidates a VA regulation that may affect thousands of claims per year is denied those fees.15
Moreover, affording the government one free bite at the apple is not consistent with Justice O’Connor’s quotation from Hudson in the majority opinion, ante at 278, nor in line with the Federal Circuit’s call in Gardner, supra, for “vigorous review” of VA regulations, whether of long standing or not.
In exercising our discretion in determining the reasonableness of the litigation position of the government here, we should bear in mind that we are not deciding whether, under all the circumstances, the government should have taken the litigating position it did. That is a decision for the government to make. There may be many reasons why the government might choose to defend what turns out to be indefensible or to “take a long shot” litigating position. We would do well to heed the exceptional opinion of now Chief Judge Edwards of the U.S. Court of Appeals for the District of Columbia Circuit in Spencer v. NLRB, which stated after an exhaustive analysis of the substantially-justified criterion:
[T]here is no good reason to suppose that fee-shifting under these circumstances will deter the government from [a particular litigating position]. If the issue is important enough, government officials, who of course are not personally liable for the payment of fees, should not be dissuaded by the prospect of an award of fees to a private party’s counsel.
Spencer v. NLRB, 712 F.2d 539, 559 (D.C.Cir.1983). What we must remember is that the EAJA was designed to help provide a level playing field by removing disincentives to private parties who would challenge government action16 — not to deter the government from defending itself in court against such challenges. See id. at 549-50.
III. CONCLUSION
The recent Oregon Natural Resources Council, supra, opinion is highly instructive. There, the Ninth Circuit reversed as an abuse of discretion a district court denial of EAJA fees in a case in which the Secretary of the Interior had failed to issue certain regulations 'which the court had previously held were mandatory and not, as the United States had contended in its litigation position, discretionary. In awarding EAJA fees, the Ninth Circuit held as follows:
[W]e find that the underlying position of the government was not substantially justified. We come to this conclusion not because the government lost its claim, but because a previous panel of this court *294determined that the statutory language and legislative history were clear.
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It is not our task to review the previous panel’s decision. The previous panel remanded when the government asked to be heard on the attorney’s fee issue. Unfortunately, the government only reasserts its position on the merits, and supplies nothing new to justify its position and meet its burden.
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We realize that in a case involving purely legal issues, where precedent is lacking, it may be difficult for the government to present extraneous circumstances going beyond the merits to justify its litigation position. Nevertheless, the government has the burden of showing that its decision to proceed to trial on the H[ells] C[anyon] N[ational] R[ecreation] A[rea] Act claim was reasonable. It lost on an issue of statutory interpretation that the previous panel did not consider close, and, without evidence otherwise explaining its position, we cannot say that its position was substantially justiñed. We thus conclude that the government’s underlying conduct — failure to issue the specified regulations — and its litigation position — that the relevant language was discretionary — were not reasonable.
Oregon Natural Resources Council, 980 F.2d at 1332 (emphasis added). These analyses and conclusions are fully applicable to the instant case, in my view.
Accordingly, for all of the above reasons, I would grant the EAJA application, and, therefore, am constrained to dissent from the Court’s denial of the application under 28 U.S.C. § 2412(d).17
. No such rule was established in this Court's opinion in Stillwell v. Brown, 6 Vet.App. 291 (1994), appeal docketed, No. 94-7090 (Fed.Cir. June 20, 1994). There, the Court stated only that it "may also have a bearing upon the reasonableness of the litigation position of the VA ... that some cases before this Court are ones of first impression involving good faith arguments of the government that are eventually rejected by the Court.” Id. at 303 (emphasis added).
. The Secretary’s argument in Part III of his January 19, 1994, Response to the EAJA application relates only to the Secretary’s positions during the adjudication process in the Department and the litigation in this Court.
. In a subsequent opinion, the Court granted reconsideration of the cited opinion but did not withdraw the opinion and amended it only "by deleting that portion which [had] awarded appellant benefits.” MacWhorter v. Derwinski, 2 Vet.App. 655, 657 (1992).
. Chiu v. United States, 948 F.2d 711, 715 (Fed.Cir.1991) (trial court must examine entirety of government’s conduct and make “judgment call whether the government’s overall position has a reasonable basis in both law and fact”); Stillwell, 6 Vet.App. at 302 (government position is "substantially (i.e., for the most part) justified if a reasonable person could think it correct, that is, if it has a reasonable basis in law and fact") (quoting Pierce v. Underwood, 487 U.S. 552, 566 n. 2, 108 S.Ct. 2541, 2550 n. 2, 101 L.Ed.2d 490 (1988)). See also Marcus v. Shalala, 17 F.3d 1033, 1038 (7th Cir.1994) ("[biased on this authority, a reasonable person could agree with the district court that the government’s position was not substantially justified”).
. Marcus v. Sullivan, 793 F.Supp. 812 (N.D.Ill.1992).
. But see Marcus v. Shalala, 17 F.3d at 1040 (dissenting opinion).
. It is important to note that U.S. district court opinions provide a very good source of EAJA law on substantial justification, because that issue is reviewed on appeal under an abuse-of-discretion standard, see Marcus v. Shalala, 17 F.3d 1033, 1037 (7th Cir.1994); Trahan v. Brady, 907 F.2d 1215, 1217 (D.C.Cir.1990), and this Court is here acting In the same context as are the district courts as to EAJA applications. See also Marcus, supra note 3.
. The Supreme Court echoed this proposition by stating:
[E]ven if this were a close case, where consistent application and age can enhance the force of administrative interpretation, the Government's position would suffer from the further factual embarrassment that Congress established no judicial review for VA decisions until 1988, only then removing the VA from what one congressional Report spoke of as the agency's "splendid isolation." As the Court of Appeals for the Federal Circuit aptly stated, "[m]any VA regulations have aged nicely simply because Congress took so long to provide for judicial review. The length of such regulations' unscrutinized and unscrutinizable existence" could not alone, therefore, enhance any claim to deference.
Brown v. Gardner, — U.S. -, -, 115 S.Ct. 552, 557, 130 L.Ed.2d 462 (1994) (citations omitted).
. In a masterful piece of understatement, the majority itself concedes that the Secretary’s "focus ... could have been different, and the Secretary could have presented a more thorough argument for his position”. Ante at 286.
. This approach is perhaps most clearly evident in the following statement of the majority: "There is no spoken basis in the underlying decision on the merits ... to refute the reasonableness of the Secretary’s position in this case.” Ante at 282. Not only does this statement contradict binding precedent by removing the burden of proving substantial justification from the Secretary (see Stillwell, 6 Vet.App. at 301 (citing Cook v. Brown, 6 Vet.App. 226, 237 (1994), and binding Federal Circuit precedent for the proposition that "the government has the burden of proving that its position was substantially justified’’)), but it places that burden on the Court "to refute” what the majority apparently believes, quite mistakenly, is a presumption of "reasonableness” that the Secretary’s position is to be afforded under the law.
. The majority takes pains to distinguish Madigan, ante at 286. I have cited Madigan preceded by a “cf." and done so only for its quotation to the effect that, because neither complex nor extraordinary analysis was needed to conclude that the government's interpretation of the statute was wrong, the government's position was not substantially justified.
. What, for example, is the majority suggesting if not a case-of-first-impression exception when it says, as previously quoted in part in note 8, supra: "In the case at bar, however, there is no spoken basis in the underlying decision on the merits or in our jurisprudence in general to refute the reasonableness of the Secretary's position in this case. This Court was the first Court to rule on the merits on the validity of the regulations-” Ante at 282.
. See, e.g., Gregory v. Brown, 5 Vet.App. 108 (1993); Felton v. Brown, 4 Vet.App. 363 (1993); Jensen v. Brown, 4 Vet.App. 304 (1993); Cole v. Derwinski, 2 Vet.App. 400 (1992); Gardner v. Derwinski, 1 Vet.App. 584 (1991), aff'd sub nom. Gardner v. Brown, 5 F.3d 1456 (Fed.Cir.1993), aff'd, — U.S. -, 115 S.Ct. 552, 130 L.Ed.2d 462 (1994).
. See Elcyzyn v. Brown, 7 Vet.App. 170, 176-77 (1994).
. Accord Stillwell, supra; Gregory v. Brown, 7 Vet.App. 127 (1994) (denying EAJA fees).
. See Jones (McArthur) v. Brown, 41 F.3d 634, 636 n. 1 (Fed.Cir.1994) (consolidated with Karnas v. Brown, No. 94-7057).
. It should be noted that EAJA fees awarded where the attorney was paid by fee agreement, as here, go first to reimburse the appellant for the amount paid to the attorney pursuant to any fee agreement. Federal Courts Administration Act, Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992).