This matter is before the Court once again following action by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Lynch v. West,
I. Background
In Lynch I, the veteran had asserted that the VARO in 1983 had been in receipt of an April 1983 medical examination repоrt under the doctrine of constructive notice set forth in Bell v. Derwinski, 2 Vet.App. 611, 613
[T]he appellant’s contention that the RO had constructive notice of the April 1983 medical examination report at the time of its July 1983 decision is barred by the Court’s decision in Damrel [v. Brown,6 Vet.App. 242 (1994)], barring retroactive application of Bell, supra, as well as by the Court’s [preceding] conclusions ... that the doctrine of constructive notice was not ensconced in VA law prior to or absent this Court’s decision in Bell.
Lynch I,
Subsequently, on December 29, 1998, the Federal Circuit issued a decision in Lynch II that determined that, because that court’s “jurisdiction is strictly limited to [U.S. Court of Appeals for Veterans Claims] decisions made ‘with respect to the validity of any statute or regulation ... or any interpretation thereof ”, it could not assume jurisdiction over the 38 C.F.R. § 3.104(a)-based arguments if this Court had not “relied on” that regulation in our decision in Lynch I. Lynch II, at *2,1998 U.S.App. LEXIS 33121 at *6 (citing 38 U.S.C. § 7292(a)) (review may be had in Federal Circuit of decision of this Court “with respect to ... any interpretation [of statute or regulation] ... that was relied on by [this Court] in making the decision”). The Federal Circuit then ruled as follows: “Because we cannot confidently determine whether we have jurisdiction, we seek clarification from the [Court of Appeals for Veterans Claims] as to whether it relied on an interpretation of [38 C.F.R. § ]3.104 in coming to its conclusion.” Lynch II, at *3, 1998 U.S.App. LEXIS 33121 at *9.
On April 1, 1999, we issued a show-cause order to the appellant and in it this Court answered the Federal Circuit’s question by stating definitively that 38 C.F.R. § 3.104(a) “did not, either implicitly or explicitly, enter into the original analysis set forth in Lynch I.” Lynch v. West,
As tо the Federal Circuit’s suggestion “to allow supplemental briefing to address the issue of the proper interpretation of [38 C.F.R. § ] 3.104”, Lynch II, at *3, 1998 U.S.App. LEXIS 33121 at *7, we note here, as we did in Lynch III, supra, that both this Court and the Federal Cirсuit have repeatedly discouraged appellants from raising arguments to this Court that have not been presented to the BVA and/or that were not argued in the appellant’s initial brief to this Court. See, e.g., Carbino v. West,
Moreover, we stress here, as we did in Lynch III, that the appellant failed to raise his § 3.104(a)-based argument to the BVA in 1995, to this Court on direct appeal from that 1995 BVA decision, in the supplemental briefing that this Court had afforded the appellant in Lynch I, or in a motion for reconsideration by this Cоurt subsequent to Lynch I, or to avail himself at any time of a supplemental-authority filing under Rule 28(g) of the Court’s Rules of Practice and Procedure as to his 38 C.F.R. § 3.104-based argument. See Lynch III,
II. Discussion
On April 26, the appellant responded to this Court’s order and attempts “to show cause why supplemental briеfing regarding 38 C.F.R. § 3.104(a) is required.” Response at 1. The appellant’s primary argument is that by quoting in Lynch III that portion of Bell, supra, which had stated that “the doctrine of constructive notice was not ensconced in VA law prior to or absеnt this Court’s decision in Bell”, this Court has “implicitly held and interpreted that § 3.104(a) did not implicate the doctrine of constructive notice.” Response at 2-3. We disagree. Neither Bell nor Lynch I cited to § 3.104(a) and Lynch III explicitly states that that regulаtion “did not, either implicitly or explicitly, enter into the original analysis set forth in Lynch I”, Lynch III,
As to the appellant’s contention about our having somehow implicitly rejected in Lynch I his contention regarding § 3.104(a) and constructive receipt, Lynch III and this opinion definitively put that notion to rest. That being so, as we suggested in Lynch III,
The appellant also argues that the Federal Circuit in Lynch II had required that we now consider § 3.104(a). Response at 2. Again, we disagree. We read the Federal Circuit’s words in Lynch II as expressing doubts as to its own jurisdiction and therefore seeking clarification from this Court as to the grounds for its decision. In the course of dоing so, the Federal Circuit also gave this Court an “opportunity” (Response at 2) to consider § 3.104(a) at this stage of the proceedings if we believed it prudent and appropriate to do so. We do not. Rather, we follow the opinion of the Federal Circuit in Carbino II, supra, in which that court not only sustained the exercise of discretion by this Court under Rule 28(a)(3) of this Court’s Rules of Practice and Procedure nоt to con
We also disagree with the appellant’s argument that the opinion of “the Federal Circuit in Linville v. West,
III. Conclusion
Accordingly, in view of the foregoing discussion, the Court concludes as follows after having considered the appellant’s April 26, 1999, response and the Federal Circuit’s remand dеcision in Lynch II: At no point during our consideration of the appeal in this Court prior to Lynch II was the relevance of 38 C.F.R. § 3.104(a) raised by either party or considered or relied on in any manner by this Court sua spontе. In view thereof, we hold that the appellant has not overcome the weighty prudential concerns about finality and the need to discourage piecemeal litigation that are so tellingly represented in the easelaw of the Federal Circuit and this Court, set forth above; hence, we reject the appellant’s attempt to inject into this case new arguments never raised or even hinted at during the Court’s initial consideration of his appeal. See Carbino II, Ledford, Carbi-no I, Savage, Horowitz, Tubianosa, and Fug-ere, all supra. Consequently, we reinstate our original opinion in Lynch I, which the Federal Circuit has vacated in Lynch II, at *3, 1998 U.S.App. LEXIS 33121 at *7, and that original opinion is incorporated into this opinion as though set forth verbatim here. The Court again affirms the October 19, 1995, BVA decision here on appeal.
AFFIRMED.