Burke v. Brown

ORDER PER CURIAM. On February 22,1995, a panel of the Court (consisting of Judges FARLEY, MANKIN, and IVERS) issued an order dismissing the instant appeal. On March 27, 1995, the appellant filed a motion for panel reconsideration, or, in the alternative, for review by the full Court. Before the matter came to issue for decision by the panel, the parties agreed that the appellant’s claim for service connection for vertigo was not well grounded. While the appellant desired that the decision of the Board of Veterans’ Appeals (BVA) be vacated and the matter remanded consistent with the remedy afforded in Grottveit v. Brown, 5 Vet.App. 91 (1993), the Court deemed the agreement of the parties to have mooted the appeal. The appellant’s motion for reconsideration is premised upon the belief that the February 22, 1995, order of the Court is susceptible to either of two interpretations, both of which, the appellant argues, are legally flawed. However, neither of the proffered interpretations is accurate. In view of the understandable and regrettable confusion, the panel will take this opportunity to clarify the order of February 22,1995. Although the BVA had denied the claim on the merits in its decision of September 23, 1993, the Secretary’s subsequent agreement that the claim had never been well grounded superseded the BVA decision. Since the parties agreed that the claim was not well grounded, there was no claim for the Court to remand (see Grottveit, supra); since the BVA decision was “overridden,” there was no BVA decision for the Court to vacate (see Bond v. Derwinski, 2 Vet.App. 376 (1992)). If and when the appellant submits a well-grounded claim to the regional office, he will be entitled to have such a claim fully adjudicated. On consideration of the foregoing, it is ORDERED, by the panel, that the appellant’s motion for reconsideration by the panel is DENIED. Further, it is ORDERED, by the full Court, that full Court review is not necessary to address a question of exceptional importance to the administration of the laws affecting veterans’ benefits or to secure or maintain uniformity of the Court’s decisions and therefore the appellant’s motion for full Court review is DENIED.