UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 98-354

RICHARD D. SIMMONS, APPELLANT,

 V.

ANTHONY J. PRINCIPI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before HOLDAWAY, STEINBERG, and GREENE, Judges.

O R D E R

On August 30, 2000, a panel of the Court issued an opinion in the instant appeal affirming

a January 1998 decision of the Board of Veterans' Appeals (Board or BVA) that had determined that

an April 1977 decision by a Department of Veterans Affairs (VA) regional office (RO), which had

denied VA service connection for arthritis and a nervous disorder, did not contain clear and

unmistakable error (CUE). Simmons v. West, 14 Vet.App. 84, 91-92 (2000). The Court entered

judgment on September 21, 2000. On November 13, 2000, the Court recalled its judgment, noting

that the enactment of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat.

2096 (Nov. 9, 2000) (VCAA), may affect the disposition of many appeals under its jurisdiction. 

On December 5, 2000, the appellant, through counsel, filed a motion to vacate the Court's

August 30, 2000, opinion. On December 21, 2000, the Court ordered the parties to file supplemental

briefs addressing the effect of the changes in law enacted in the VCAA. The Court also ordered that

the appellant's motion to vacate the August 30, 2000, opinion be held in abeyance pending receipt

of the supplemental briefs. On April 5, 2001, the Secretary filed a response in which he asserted that

a remand of the matters on appeal was required pursuant to Holliday v. Principi, 14 Vet.App. 280

(2001), in order for the case to be readjudicated in light of the enactment of the VCAA. The Court

construed the Secretary's response as a motion for remand. On August 31, 2001, the Court revoked

a July 13, 2000, order that had submitted this appeal to a panel for a decision and returned the matter

to the single judge for disposition. 

On September 10, 2001, in a single-judge order, the Court vacated the Board decision and

remanded the matters for readjudication in accordance with the Secretary's unopposed, construed

motion. On that same date, however, the Secretary filed an opposed motion to withdraw his April

2001 response and the construed motion for remand; he now moves to file a substitute response that

he appended to his motion, and further moves for reinstatement, based on the Court's opinion in

Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc), of the judgment of affirmance. 
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On September 17, 2001, the appellant filed, through counsel, a motion for clarification of the

Court's August 31, 2001, order. He notes, among other things, that the Court has not ruled on his

motion to vacate the panel opinion of August 30, 2000. He also inquires whether, given the

significant changes in the law represented by this Court's opinion in Livesay, supra, and opinions

of the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) in Roberson v. Principi,

251 F.3d 1378 (Fed. Cir. 2001), and Cook v. Principi, 258 F.3d 1311 (Fed. Cir. 2001), opinion

withdrawn, 275 F.3d 1365 (Fed. Cir. 2002), the parties would be provided an opportunity for

supplemental briefing. 

On September 19, 2001, the appellant filed a response in opposition to the Secretary's motion

to file a substituted response. He asserts that the holding in Livesay is not dispositive of the CUE

claims in the instant case because Livesay involved the claim of CUE in a Board decision under

38 U.S.C. § 7111, whereas the instant case involves CUE in an RO decision, which is governed by

38 U.S.C. § 5109A and 38 C.F.R. § 3.105 (2001). Additionally, he notes that the Court's opinion

in Livesay supports a remand in this case of the issue of the nonfinality of the 1977 RO decision

based on grave procedural error. See Hayre v. West, 188 F.3d 1327, 1333 (Fed. Cir. 1999); see also

Cook, supra. On October 1, 2001, the Secretary filed a motion for reconsideration of, or, in the

alternative, for a panel decision replacing, the September 10, 2001, single-judge order. Because the

Court will withdraw the September 10, 2001, order, the Secretary's motions will be denied as moot.

In December 2000, the Federal Circuit held 38 C.F.R. § 20.1404(b) (1999) invalid, because,

by precluding Board review of any claim of CUE in a prior BVA decision where the claimant's

pleadings did not comply with filing and pleading requirements, the regulation operated contrary to

the requirement under 38 U.S.C. § 7111(e) that such CUE claims "shall be decided by the Board on

the merits". Disabled Am. Veterans v. Gober, 234 F.3d 682, 704 (Fed. Cir. 2001) [hereinafter DAV

v. Gober], cert. denied, 532 U.S. 973 (2000). The Court requires additional briefing to address the

extent to which, if any, the Federal Circuit's holding in DAV v. Gober as to section 7111(e) should

be expanded to cases under section 5109A, in order to preclude a res judicata effect from the denial

of a CUE claim as to a prior VARO decision, when the denial is based on a failure to comply with

pleading requirements under Fugo v. Brown, 6 Vet.App. 40 (1993), rather than on a merits

adjudication. Cf. 66 Fed. Reg. 35,902 (July 10, 2001) (to be codified at 38 C.F.R. pt. 20) (providing

that under interim rule, CUE motions that do not meet pleading or filing requirements shall be

dismissed without prejudice rather than denied).

At the request of the single judge, this matter will be returned to the panel. The Court will

grant the appellant's request for clarification to the extent reflected herein. 

On consideration of the foregoing, it is by the single judge

ORDERED, sua sponte, that the Court's September 10, 2001, order is withdrawn and the

matter is submitted to this panel. It is further
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ORDERED that the Secretary's October 1, 2001, motion for reconsideration of the Court's

September 10, 2001, order is denied as moot. It is by the panel

ORDERED that the Court's August 30, 2000, panel opinion is withdrawn. It is further

ORDERED that the Secretary's motion to withdraw his April 5, 2001, response (on which

the Court's September 10, 2001, order was based) and to substitute his September 30, 2001, response

is denied. His motion for reinstatement of judgment is denied. However, the response contained

in the September 2001 motion will be accepted for filing as a supplemental response. It is further

ORDERED that, not later than 30 days after the date of this order, the appellant submit a

supplemental memorandum addressing the Secretary's supplemental response (now accepted for

filing) and what, if any, effect the opinions in Roberson, DAV v. Gober, Hayre, and Livesay, all

supra, have on matters before the Court in the instant appeal. Not later than 30 days after the date

of service of the appellant's supplemental memorandum, the Secretary shall file, and serve on the

appellant, a supplemental memorandum in response. Not later than 20 days after the date of service

of the Secretary's response, the appellant may, if he chooses, file (and, if so, shall serve on the

Secretary) a supplemental memorandum in reply to the Secretary's response. It is further

ORDERED that the Secretary's alternative October 1, 2001, motion for a panel decision to

replace the Court's September 10, 2001, single-judge decision is denied as moot.

DATED: June 7, 2002 PER CURIAM.