Cotant v. Principi

Cotant v. Principi, 15 Vet. App. 431, decided 2002-02-15.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 00-2382

MICHAEL D. COTANT , APPELLANT ,

V.

ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                   Before FARLEY, IVERS, and STEINBERG, Judges.

                                         ORDER

    The appellant, through counsel, seeks review of an August 21, 2000, decision of the Board

of Veterans' Appeals (Board) that denied the appellant's claim for Department of Veterans Affairs (VA) service connection, based on a theory of aggravation of a preexisting injury or disease, for degenerative joint disease of the right hip. On January 11, 2002, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) issued an opinion in Davis (John F.) v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). In that opinion, the Federal Circuit held that 38 U.S.C. § 1153 (which requires that there be an increase in disability from such a preexisting injury or disease during service and existing at discharge in order for the presumption of aggravation to attach) was applicable in a case where the preexisting condition was not noted at entry, as provided for in 38 U.S.C. § 1111, but had been found by the Board based on clear and unmistakable evidence rebutting the presumption of sound condition established by section 1111. Davis (John F.), 276 F.3d at 1343-44. The Court notes that the appellant in both his principal and reply brief in the instant case, and the Secretary in his brief, presents arguments as to whether the Board properly applied section 1153 to the appellant's appeal. Because the Federal Circuit's opinion in Davis may be applicable to this Court's review of the Board decision in this case, see Brewer v. West, 11 Vet.App. 228, 233-34 (1998) (holding that judicial decisions are generally retroactive), the Court requires further briefing from the parties addressing the relevance and impact, if any, of Davis regarding the instant appeal. On consideration of the foregoing, it is

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

serve on the Secretary, a supplemental brief addressing the impact, if any, of Davis, supra, on the appellant's appeal. It is further

   ORDERED that, not later than 30 days after service of the appellant's supplemental brief, the

Secretary file, and serve on the appellant, a supplemental brief in response. It is further  ORDERED that, not later than 15 days after service of the Secretary's supplemental brief, the appellant may file a reply thereto.

DATED: February 22, 2002 PER CURIAM.

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Cotant v. Principi, 16 Vet. App. 547, decided 2002-12-27.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 00-2382

MICHAEL D. COTANT , APPELLANT ,

V.

ANTHONY J. PRINCIPI, SECRETARY OF VETERANS AFFAIRS, APPELLEE.

                  Before FARLEY, IVERS, and STEINBERG, Judges.

                                        ORDER

    The appellant, through counsel, seeks review of an August 21, 2000, decision of the Board

of Veterans' Appeals (Board) that denied the appellant's claim for Department of Veterans Affairs (VA) service connection, based on a theory of aggravation of a preexisting injury or disease, for degenerative joint disease of the right hip. On July 30, 2002, the Court issued an order, sua sponte, staying this matter pending the outcome of Jordan (Timothy) v. Principi, U.S. Vet. App. No. 00-206, infra, or further order of the Court, because one of the issues involved in the two cases – regarding proper interpretation of 38 U.S.C. §§ 311 and 353 (1979) (now sections 1111 and 1153) and the validity of 38 C.F.R. § 3.304(b) (1982) (now 38 C.F.R. § 3.304(b) (2002)) – is substantially similar. The same counsel represents the appellants in the two cases.

    Oral argument in Jordan was held before a panel on May 1, 2002, and, in a September 26,

2002, opinion, the Court affirmed a November 1999 Board decision that determined that there was no clear and unmistakable error (CUE) in an April 1983 Board decision that had denied the appellant's claim for VA service connection for a right-knee disorder, based on a theory of aggravation of a preexisting injury or disease. Jordan (Timothy) v. Principi, 16 Vet.App. 335, 338, 356 (2002). The Court rejected the appellant's statutory-interpretation argument that, notwithstanding 38 C.F.R. § 3.304(b) (1982), the provisions of 38 U.S.C. § 353 (1979) were inapplicable to a claim where a veteran's condition that had not been noted at entry had been found to have been preexisting because the presumption of sound condition, pursuant to 38 U.S.C. § 311 (1979), had been rebutted by clear and unmistakable evidence showing that the condition had preexisted service. Id. at 347-49.

    On October 17, 2002, the parties in Jordan filed a joint motion for panel reconsideration

based on newly discovered legislative and regulatory history and recommended that the Court invalidate 38 C.F.R. § 3.304(b) to the extent that it provides that "the presumption of sound condition may be rebutted solely by clear and unmistakable evidence that a disease or injury existed prior to service". Joint Motion (Mot.) at 10. On November 1, 2002, the Court granted that joint motion and withdrew its September 26, 2002, opinion. Jordan (Timothy) v. Principi, 2002 WL 31445159, at *2 (Vet. App. Nov. 1, 2002) (quoting Joint Mot. at 11). The Court directed the parties to provide full copies of all pertinent materials regarding Congressional intent in connection with 38 U.S.C. §§ 311 and 353 (1979) and the meaning of the language "and was not aggravated by such service" in section 311. Jordan (Timothy), 2002 WL 31445159, at *3. The parties responded on November 18, 2002.

   On consideration of the foregoing, it is

    ORDERED that, not later than 15 days after the date of this order, the parties show cause why

in the instant case the Court should not take judicial notice of the October 17 and November 18, 2002, pleadings filed in Jordan and proceed to decide the section 311/§ 3.304(b) issue in the instant case. It is further

     ORDERED that the parties include in their responses to this order their views on the remedy

in this case if the Court decides to invalidate § 3.304(b) to the extent recommended by the parties in Jordan, supra.

DATED: December 27, 2002 PER CURIAM.

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