UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 02-80

EDWARD HACKETT, JR., APPELLANT,

 V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before GREENE, KASOLD, and HAGEL, Judges.

O R D E R

In a January 8, 2003, single-judge order, the Court vacated a January 7, 2002, Board of

Veterans' Appeals (Board) decision that declined to reopen Mr. Edward Hackett's previously

disallowed claim for service connection for retinitis pigmentosa and remanded the matter because

VA had failed in its duty to notify under 38 U.S.C. § 5103(a). The Court, on March 6, 2003, entered

judgment, and the Secretary appealed to the United States Court of Appeals for the Federal Circuit

(Federal Circuit). The Federal Circuit, on May 6, 2004, granted the Secretary's motion to vacate this

Court's January 2003 order and remanded the matter to the Court for reconsideration in light of the

Federal Circuit's decision in Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). 

On July 12, 2004, Mr. Hackett, through counsel, filed a motion for leave to file a supplemental

brief. On that same date, the Court received Mr. Hackett's supplemental brief. On July 16, 2004,

the Secretary filed a motion opposing Mr. Hackett's motion to file a supplemental brief and also

moved for a stay of the proceedings pending this Court's disposition of Conway v. Principi, U.S. Vet.

App. No. 01-0107 (Notice of Appeal filed Jan. 16, 2001); Nelson v. Principi, U.S. Vet. App. No.

02-2140 (Notice of Appeal filed Nov. 21, 2002); and McCutcheon v. Principi, U.S. Vet. App. No.

01-1027 (Notice of Appeal filed June 14, 2001). The Court will deny the Secretary's motion for a

stay, grant Mr. Hackett's motion for leave, and accept for filing Mr. Hackett's supplemental brief.

Furthermore, the Court will order the Secretary to file with the Court a response addressing the

issues raised in Mr. Hackett's supplemental brief and will afford Mr. Hackett the opportunity to

reply to the Secretary's response. The Secretary will further be ordered to supplement the record on

appeal. In particular, the Court requires inclusion in the record of the "VCAA letter" Mr. Hackett

refers to in his November 2001 letter to the Board. See R. at 255. 

Additionally, because the Court believes that oral argument will materially assist in the

disposition of this appeal, the Clerk of the Court will set the matter for oral argument after the

responses of the parties have been received and as soon as the business of the Court permits. Cf.

Winslow v. Brown, 8 Vet. App. 469, 471 (1996) (denying motion for oral argument where Court does

not believe it will materially assist the disposition of the appeal). Under 38 U.S.C. § 7261(b)(2) and
Conway, supra, the Court is required to take due account of the rule of prejudicial error in all cases

addressing the notice requirements in 38 U.S.C. § 5103(a). At oral argument, the parties should be

prepared to address, among other things, which party has the burden of establishing that there has

been prejudicial error committed in the proceedings before VA. 

Upon consideration of the foregoing, it is 

ORDERED that the Secretary's motion for stay of proceedings is denied. It is further

ORDERED that Mr. Hackett's motion for leave to file a supplemental brief is granted and the

brief received on July 12, 2004, will be filed as of the date of this order. It is further

ORDERED that, not later than 14 days after the date of this order, the Secretary file, and serve

on Mr. Hackett, a response to the issues raised in Mr. Hackett's supplemental brief. It is further

ORDERED that, not later than 14 days after the filing of the Secretary's response, Mr. Hackett

may file, and serve on the Secretary, a reply. It is further

ORDERED that, not later than 28 days after the date of this order, any interested individual or

entity may file and serve on the other parties a brief, as amicus curiae, on the issues stated above.

It is further

ORDERED that, the Clerk of the Courtset the matter for oral argument assoon as the business

of the Court permits. 

DATED: November 3, 2004 PER CURIAM.