ORDER
It is ORDERED, sua sponte, that this Court’s order dated June 17, 1992, is vacated, and the following order is substituted therefor:
On April 10, 1992, appellant filed a motion for an extension of time to file a statement of issues and for suspension of appellate proceedings. In his motion, appellant asserts that on January 23, 1992, the Court directed appellant to advise the Court of the status of the proceedings before the Board of Veterans’ Appeals (BVA) and of the need for any additional stay on this appeal. Appellant further states that on March 6,1992, the BVA denied a motion for reconsideration and that on March 12, 1992, appellant requested the Wichita Regional Office (RO) of the Department of Veterans Affairs (VA) to reopen his claim. Appellant requests the Court to issue an order further suspending appellate proceedings until such time as the RO makes a determination concerning the request for reopening of his claim.
The first issue presented in this case involves the timeliness of appellant’s Notice of Appeal (NOA). To be timely filed under the Court’s rules (U.S.Vet. App.R. 4)) and precedents construing 38 U.S.C. § 7266(a) (formerly § 4066), an NOA must be actually received by the Court within 120 days after the BVA decision is mailed to an appellant. See Elsevier v. Derwinski,
The Court agrees with appellant that the next-day mailing presumption should apply to the August 12, 1991 BVA decision at issue. The information recently proffered by the Secretary of Veterans Affairs (Secretary) does indicate that BVA decisions rendered prior to January 16, 1992, cannot be presumed to have been mailed on the date of the decision. Ibid. Consequently, August 13, 1991, the day following the BVA’s August 12, 1991, decision is presumed to have been the date of mailing here. See Rosier, supra. Therefore, appellant’s filing of his NOA, on December 11, 1991, occurred on the 120th day after the mailing of that decision and was, therefore, timely.
The second issue in this case, appellant’s motion for suspension of appellate proceedings, has raised the possibility that parallel proceedings are ongoing in this Court and the RO. If the matter pending before the Secretary requires administrative adjudication of the same claim as is pending before this Court, the Court may not permit the appeal to go forward. See Cochran v. Birkel,
Appellant’s request that the RO reopen his claim is a new or different claim than that pending before the Court. Nevertheless, the Court hesitates to proceed with the appeal before it because of the possibility of a close relationship of the issues in each claim and the possibility of piecemeal litigation with regard to this appellant. Hoyer v. Derwinski,
However, there exists the danger of substantial prejudice to appellant were the Court to dismiss the appeal. If the Court dismisses the appeal and appellant’s claim to reopen is denied by the RO and the BVA for lack of new and material evidence under 38 U.S.C. § 5108 (formerly § 3008), appellant will have lost his right to a merits review of the August 12, 1991, BVA decision and could receive judicial review of only the BVA’s later decision that no new and material evidence existed upon which to reopen his claim. Cf. Breslow v. Derwinski,
On consideration of the foregoing, it is
ORDERED that appellant’s motion for suspension of appellate proceedings is granted for 30 days from the date of the June 17 order or until further order of the Court. It is further
ORDERED, sua sponte, that appellant, within 30 days after the date of the June 17 order, inform the Court whether he desires to stay proceedings until he has received a BVA decision in the matter pending at VA, and, at that time, receive simultaneous judicial review of the two BVA decisions, or whether he intends to proceed with the present appeal, limiting it to matters and evidence considered in the August 12,1991, BVA decision. It is further
ORDERED that appellant’s motion for an extension of time to file a statement of issues is granted until further order of the Court.