This order addresses the Secretary’s request for en banc review after a panel vacated a Board decision that had reopened the appellant’s claim and denied service connection. The controlling concern in the separate writings is whether the claim had been improperly reopened despite the absence of new and material evidence and, if so, whether that error rendered the Board’s merits decision beyond statutory authority. Judge Nebeker’s statement explains that the relevant finality provisions, particularly 38 U.S.C. §§ 7104(b) and 7105(c), barred reopening of the unappealed 1988 RO decision absent a proper legal basis, so the panel’s disposition was consistent with McGinnis v. Brown.

The separate opinions also discuss the Secretary’s standing to seek en banc review after prevailing before the panel, the relationship between reopening and harmless error under 38 U.S.C. § 7261(b), and the broader concern that vacating merits decisions on reopening grounds could create confusion in cases where a claimant received some, but not all, benefits. The Court denied en banc review, leaving the panel’s approach intact and reflecting the Court’s early effort to reconcile finality, reopening, and appellate review principles.

Where a prior RO decision became final and unappealed, the claim may not be reopened or allowed absent new and material evidence, and a merits adjudication reached without lawful reopening exceeds statutory authority.

Advocates should focus on whether the prior decision that became final was an RO decision or a Board decision, because the finality rules and reopening analysis can turn on that distinction. The case also illustrates that reopening errors were being treated as potentially jurisdictional in this era of the Court’s jurisprudence.

Green is a useful early finality case because it shows how the Court treated reopening of final claims and how it handled the Secretary’s attempt to preserve a favorable result through en banc review. It helps explain the development of the Court’s doctrine around improper reopening and the tension between harmless error and statutory finality.

Improper reopening of a finally denied claim without new and material evidence

A veteran does not appeal an RO denial within one year, later submits the same evidence, and the RO or Board reopens and denies the claim on the merits without first finding new and material evidence. Under this line of cases, the finality problem must be addressed before merits adjudication.

Use this case to argue that the adjudicator lacked authority to reach the merits if the threshold reopening requirement was not satisfied. It is also helpful when responding to arguments that an improper reopening should be ignored as harmless error.

McGinnis v. Brown, Bernard v. Brown, Bethea v. Derwinski, Russell v. Principi