Barney O. Padgett v. Anthony J. Principi
18 Vet. App. 404
Vet. App.
2004
Check Treatment
Docket

Barney O. PADGETT, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 02-2259

United States Court of Appeals for Veterans Claims

Sept. 14, 2004

18 Vet. App. 404

Before KRAMER, Chief Judge, and FARLEY, IVERS, STEINBERG, GREENE, KASOLD, and HAGEL, Judges.

direct-appeal EED claim and stay further proceedings as to that claim pending further order of the Court. See U.S. VET. APP. R. 5(a)(1)(C).

III. Conclusion

Upon consideration of the foregoing analysis, the ROA, and the parties’ pleadings, and having “take[n] due account of the rule of prejudicial error” under 38 U.S.C. § 7261(b)(2), the Court vacates the February 2001 Board decision in part and remands the CUE matter for expeditious further development and issuance of a readjudicated decision supported by an adequate statement of reasons or bases, see 38 U.S.C. §§ 1110, 5107, 5109A, 7104(a), (d)(1); 38 C.F.R. §§ 3.105, 3.400(q)(1)(ii), (r); 38 C.F.R. §§ 4.85, 4.87a (1980);

, all consistent with this opinion and in accordance with 38 U.S.C. § 7112 (as added by the Veterans Benefits Act of 2003, Pub.L. No. 108-183, § 707(b), 117 Stat. 2651, 2673) (requiring Secretary to “take such actions as may be necessary to provide for the expeditious treatment by the Board of any claim that is remanded to the Secretary by the Court“), see
(holding that section 302 of Veterans’ Benefits Improvements Act of 1994, Pub.L. No. 103-446, § 302, 108 Stat. 4645, 4658, predecessor of section 7112, applies to all elements of a claim remanded by the Court or Board), and in accordance with all applicable law and regulation. See
. On remand, the appellant will be free to submit additional evidence and (to the extent appropriate for a CUE claim) argument on the remanded claim, and the Board is required to consider any such evidence and argument. See
. A remand by this Court or by the Board confers on an appellant the right to VA compliance with the terms of the remand order and imposes on the Secretary a concomitant duty to ensure compliance with those terms. See
. A final decision by the Board following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court only upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board‘s new final decision is mailed to the appellant. See
.

The Court severs the direct-appeal EED claim and, as to that claim, grants in part the Secretary‘s July 9, 2004, motion for a stay and holds that matter in abeyance pending further order of the Court.

It is so ordered.

VACATED AND REMANDED IN PART.

Burdett HUSTON, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 01-0575

United States Court of Appeals for Veterans Claims

Sept. 27, 2004

18 Vet. App. 405

Theodore C. Jarvi, Tempe, AZ, for Appellant. Robert W. Legg, Washington, DC, for Appellee.

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

ORDER

PER CURIAM:

On July 9, 2004, the Court issued an opinion that vacated the August 8, 2002, Board of Veterans’ Appeals decision, which had denied the appellant‘s claim for service connection for osteoarthritis of the right hip, and remanded the matter for readjudication. On July 30, 2004, the Secretary filed a timely motion for a full-Court decision. On August 6, 2004, the appellant, through counsel, filed a motion for leave to file out of time a cross-motion for a full-Court decision. On the same date, the Court received the appellant‘s cross-motion. On September 8, 2004, the Court granted the appellant‘s motion for leave and filed his cross-motion for a full-Court decision.

Upon consideration of the foregoing, it is

ORDERED that both the Secretary‘s motion and the appellant‘s cross-motion for a full-Court decision are granted. It is further

ORDERED that the Court‘s July 9, 2004, opinion is withdrawn. The matter is referred to the full Court for disposition.

Burdett HUSTON, Appellant, v. Anthony J. PRINCIPI, Secretary of Veterans Affairs, Appellee.

No. 01-0575

United States Court of Appeals for Veterans Claims

ORDER

PER CURIAM:

On March 27, 2001, the appellant, veteran Burdett Huston, filed pro se a Notice of Appeal from a February 21, 2001, Board of Veterans’ Appeals (Board or BVA) decision that denied an effective date earlier than June 7, 1991, for his Department of Veterans Affairs (VA) service-connected bilateral hearing loss; that decision also addressed the issue whether a May 15, 1981, VA regional office (RO) decision denying service connection for that condition contained clear and unmistakable error (CUE). Record (R.) at 1-3. On May 25, 2001, counsel entered an appearance on behalf of the appellant. Thereafter, the parties filed briefs. On July 11, 2003, this Court issued an opinion, vacating the Board decision in this case and remanding matters for further development and readjudication.

. Specifically, as to the appellant‘s claim for an earlier effective date (EED) based on a direct challenge to a June 1999 VARO decision (direct-appeal EED claim), the Court concluded that the Board had erred by failing to discuss the notice provisions of 38 U.S.C. § 5103(a), as amended by the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, § 3(a), 114 Stat. 2096, 2096-97, and that the record on appeal (ROA) contained no specific notice to the appellant that met the standard established by amended section 5103(a) and 38 C.F.R. § 3.159(b) (2002).
. The Court ordered that claim remanded to the Board in