UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

MISC. NO. 3-05

IN RE: 38 U.S.C. § 7261(b)(2) and Mayfield v. Nicholson, 19 Vet.App. __, No. 02-1077, 2005 WL

957317 (Apr. 14, 2005)

Before IVERS, Chief Judge, and STEINBERG, GREENE, KASOLD, HAGEL, 

MOORMAN, LANCE, DAVIS, and SCHOELEN, Judges.

O R D E R

Pursuant to the authority of 38 U.S.C. § 7264(a) and Rule 2 of the Court's Rules of Practice

and Procedure (Rules), the Court has determined that there is a need to issue a general order in light

of the Court's issuance on April 14, 2005, of its opinion in Mayfield v. Nicholson, 19 Vet.App. __,

No. 02-1077, 2005 WL 957317 (Apr. 14, 2005). In that opinion, the Court made several holdings

pertaining to 38 U.S.C. § 5103(a) (notice to claimants regarding substantiating their claims),

38 C.F.R. § 3.159(b)(1) (same), 38 U.S.C. § 7104(d)(1) (decisions of theBoard of Veterans' Appeals

(Board) must contain statements of reasons or bases), and 38 U.S.C. § 7261(b)(2) (Court must "take

due account of the rule of prejudicial error). Regarding prejudicial error, the Mayfield opinion

(1) requires, in the context of notice under section 5103(a) and § 3.159(b)(1), that appellants who

are represented before the Court must (although certainly unrepresented appellants may also wish

to do so) present a plausible showing of how they were prejudiced by any error that they assert was

made in a Board decision or otherwise in the processing of a claim by the Department of Veterans

Affairs and (2) articulates standards by which the Court will apply the rule of prejudicial error in

section 7261(b)(2). The text of the Court's opinion is available on the Court's website at

www.vetapp.gov. Accordingly, the Court suspends the application of certain rules in cases in which

the appellant has alleged or is alleging in his or her brief an error with respect to section 5103(a)

and/or § 3.159(b)(1) and, in order to direct appropriate proceedings, it is

ORDERED that, as to any appeal in which a merits decision has not yet been rendered, the

appellant, or the parties jointly, may (without leave of the Court or unless otherwise ordered by the

Court) file, and serve under Rule 25( c), not later than 15 days after the date of this order, a

memorandum of law in light of the above requirements and standards set forth in Mayfield, supra,

in the context of section 5103(a)/§ 3.159(b). If the time for filing the appellant's brief or reply brief

has not expired on the date of this order, the appellant may include these matters in his or her brief

or reply brief, as the case may be. If the time for filing the appellant's reply brief has expired, or will

expire within 15 days after the date of this order, and the appellant raised in his or her brief an error

with respect to section 5103(a)/§ 3.159(b), the appellant may file a separate memorandum of law

addressing these matters. It is further

ORDERED that, if an appellant files a reply brief or a separate memorandum of law in

accordance with the above decretal paragraph, the Secretary, not later than 15 days after service of

that reply brief or memorandum of law, as the case may be, may file, and serve under Rule 25( c),
a memorandum of law addressing these matters or, if no such reply brief or memorandum of law is

filed by the appellant, the Secretary may file a memorandum of law not later than 30 days after the

date of the issuance of this order or 15 days after the date on which a reply brief was due to be filed,

whichever date is later. Failure of the Secretary to file a timely response may be considered to be

his nonopposition to any contention in the appellant's brief, reply brief, or memorandum of law, as

the case may be, regarding the above Mayfield-related matters. It is further

ORDERED that any deadline established by Court order in a particular case for the filing

of supplemental pleadings regarding the above Mayfield-related matters remains in full force and

is not altered by this miscellaneous order. It is further 

ORDERED that any motion or other paper filed pursuant to this order must conform to the

page and typeface limitations set forth in Rule 32(b) and (g) for reply briefs. It is further 

ORDERED that Rule 30(b) (Citation of Supplemental Authorities) is suspended as to

Mayfield, supra.

The Court notes that this order is permissive as to actions that parties may wish to take and

that this order does not preclude the Court from disposing of a pending case prior to the expiration

of the time allowed in this order for the parties to file a paper pursuant to this order in a particular

case.

This order shall take effect immediately.

DATED: June 2, 2005 BY THE COURT:

DONALD L. IVERS

Chief Judge