UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 99-191

WILLIAM J. KELLY, APPELLANT,

 V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before KRAMER, Chief Judge, and HOLDAWAY and STEINBERG, Judges.

O R D E R

In a January 5, 2001, single-judge order, the Court vacated a December 31, 1998, decision

of the Board of Veterans' Appeals (Board) that had concluded that the appellant's claim for

Department of Veterans Affairs (VA) service connection for olivopontocerebellar atrophy was not

well grounded and remanded that matter for readjudication under the Veterans Claims Assistance

Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000), and pursuant to Luyster v. Gober,

14 Vet.App. 186 (2000) (per curiam order). In that January 2001 order, the Court also concluded

that it lacked jurisdiction to entertain the appellant's arguments regarding an asserted claim for VA

service connection for cerebellar ataxia because the appellant had failed to file a jurisdictionconferring Notice of Disagreement (NOD) as to that claim. See Veterans' Judicial Review Act,

Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988) (found at 38 U.S.C. § 7251 note)

[hereinafter VJRA § 402]. 

On January 30, 2001, the appellant filed, through counsel, a motion for reconsideration or,

in the alternative, for a panel decision regarding that portion of the Court's January 2001 order in

which the Court held that it lacked jurisdiction over the asserted claim for service connection for

cerebellar ataxia. The motion for reconsideration was denied in a single-judge order dated

October 10, 2001. The alternative motion for a panel decision is now before this panel and will be

granted. 

On December 27, 2001, Congress repealed the Court-jurisdiction NOD requirement, formerly

set forth at VJRA § 402, which had conferred jurisdiction on the Court over a particular claim only

when an NOD, as to an underlying agency-of-original-jurisdiction decision on that claim, was

properly filed by an appellant on or after November 18, 1988. Veterans Education and Benefits

Expansion Act of 2001, Pub. L. No. 107-103, § 603(a), 115 Stat. 976, 999. The Court's January and

October 2001 orders were premised on the now-repealed VJRA § 402 requirement. Because that

repealer is applicable to all pending and subsequent claims, see id. at § 603(d), the Court will grant

the appellant's motion for a panel decision, reinstate the appeal with respect to the ataxia claim, and

return the case to the single judge. The Court notes that by reinstating the appeal as to the asserted
2

ataxia claim, the Court makes no determination as to (1) whether the appellant ever made any formal

or informal claim for service connection for ataxia; (2) if the appellant did make such a claim,

whether that claim was reasonably raised to the Board; and (3) if the appellant did not reasonably

raise that claim to the Board, whether there is a final Board decision as to any such claim that is

reviewable by this Court. See, e.g., Collaro v. West, 136 F.3d 1304, 1309-10 (Fed. Cir. 1998);

Ledford v. West, 136 F.3d 776, 779-80 (Fed. Cir. 1998); Barrera v. Gober, 122 F.3d 1030, 1038-39

(Fed. Cir. 1997); Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997); Marsh v. West,

11 Vet.App. 468, 470 (1998); Garlejo v. Brown, 10 Vet.App. 229, 232 (1997). 

On consideration of the foregoing, it is

ORDERED that the appellant's motion for a panel decision is granted, and the Court's

January 5, 2001, order is modified to the extent provided herein as to the asserted cerebellar ataxia

claim. It is further

ORDERED that the appellant's appeal with respect to the asserted ataxia claim is reinstated.

The case will proceed before the single judge as to any appeal involving such a claim. It is further,

by the single judge, 

ORDERED that, not later than 30 days after the date of this order, the appellant file, and

serve on the Secretary, a supplemental memorandum addressing the above three questions as to the

asserted claim. Not later than 20 days after service of the appellant's memorandum, the Secretary

shall file, and serve on the appellant, a supplemental memorandum in response to the appellant's

memorandum. Not later than 15 days after service of the Secretary's supplemental memorandum,

the appellant may file a supplemental reply thereto. 

DATED: February 28, 2002 PER CURIAM.