concurring in part and dissenting in part:
I concur in the excellent opinion of the Court as to parts I, II, and III. I also agree that the Board of Veterans’ Appeals (BVA or Board) decision to deny the appellant’s claim should not be overturned and *245that readjudication by the Board is not indicated.
However, I do not agree with the decision to vacate, for technical reasons, the decision of the Board. This Court has forged a clearly defined path, from which the majority has deviated, of affirming in such cases when the Board’s failures in the adjudication process were “harmless.” This path was first demarcated in Thompson v. Derwinski, 1 Vet.App. 251 (1991), where the Court (indeed, this very same panel of the Court) held that there was no “new and material evidence ... presented or secured with respect to a [previously and finally disallowed] claim” (38 U.S.C.A. § 5108 (West 1991)) and that, therefore, the claim should not have been reopened. Hence, the Thompson Court held that the Board’s failure “to satisfy the [second step of] the two-step test established by Manio v. Derwinski, 1 Vet.App. 140, 144-47 (1991), ... [was] deemed not to have been prejudicial to the ultimate resolution of the claim. See 38 U.S.C. § 4061(b) [(now 38 U.S.C.A. § 7261 (West 1991))].” Thompson, 1 Vet.App. at 252. The Court, therefore, affirmed the Board’s denial of the claim for service connection.
Shortly thereafter, in Godwin v. Derwinski, 1 Vet.App. 419 (1991), the Court cited Thompson in holding that the Board’s application of the “wrong standard in evaluating the ... evidence [under step two of Manió, supra ] ... is not prejudicial error ... because the claim should not have been reopened”; the Court affirmed the Board decision (except for a remand for fulfillment of the duty to assist). Godwin, 1 Vet.App. at 424-25. The Court then “affirmed” in Kehoskie v. Derwinski, 2 Vet.App. 31, 33 (1991), on the same basis. Each of the seven judges of the Court was a member of the panel on at least one of these three ground-breaking 1991 cases.
In numerous subsequent panel opinions the Court has consistently followed this precedent and “affirmed” BVA decisions on the basis of this same harmless-error analysis. See Baritsky v. Principi, 4 Vet.App. 41, 42 (1993); Helige v. Principi, 4 Vet.App. 32, 33 (1993); Odiorne v. Principi, 3 Vet.App. 456, 460 (1992); Schleis v. Principi, 3 Vet.App. 415, 418 (1992); Corry v. Derwinski, 3 Vet.App. 231, 234 (1992); Mason v. Derwinski, 2 Vet.App. 526, 528 (1992); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992); Wilson v. Derwinski, 2 Vet.App. 483, 484-85 (1992); Shapiro v. Derwinski, 2 Vet.App. 477, 478 (1992); Irvin v. Derwinski, 2 Vet.App. 358 (1992); Sanchez v. Derwinski, 2 Vet.App. 330, 333 (1992); Wilisch v. Derwinski, 2 Vet.App. 191, 193 (1992); Masors v. Derwinski, 2 Vet.App. 181, 186 (1992). As a result, each of the seven judges of the Court has adhered to this course of action in at least five panel opinions.
I am unable to discern the deficiency in this time-tested approach of affirming a BVA denial of a claim on the ground that the Board’s deviation from the correct analytical construct of the Manió two-step process was harmless error. As the Court stated so clearly in Thompson, an appellant, in order to prevail on a reopened claim, must successfully negotiate both of Manióo’s hurdles. It matters not on which one the claimant founders in terms of the ultimate resolution of the claim. He or she loses either way. Thompson, 1 Vet.App. at 253. That is why it is a harmless error when the Board muddles the two-step reopening analysis or jumps to the step-two merits sub-issue without stopping first to face the step-one threshold sub-issue of whether there is new and material evidence to reopen the claim.
The majority’s stated purpose for vacating the BVA decision is to “reestablish the finality of the previous denial,” which was the Regional Office (RO) decision of December 4, 1987. That may be conceptually desirable, but the majority has failed to explain what difference it makes — that is, who would be prejudiced by leaving the technically flawed BVA decision standing. In deciding appeals, this Court is mandated by its enabling statute to “take due account of the rule of prejudicial error.” 38 U.S.C.A. § 7261(b) (West 1991) (emphasis added). It is just this sort of academic exercise which the rule of nonprejudicial or “harmless” error was designed to avoid.
*246Moreover, applying the majority’s concept in other fact situations would likely result in needless delay and waste of scarce adjudication resources. In this case, the RO decision which the Board was reviewing correctly concluded that there was no new and material evidence and did not reopen the claim. But the RO could just as readily have made the same mistake as the Board did. In such a situation, the majority’s new approach would seem to require that the Court not only vacate the BVA decision but remand the matter to the BVA for it then to vacate the offending RO decision. Such a purely technical exercise would likely take many months to complete before the claimant finally receives a final denial of reopening, thereby needlessly prolonging and complicating the adjudication process while the Board and RO jump through judicially created hoops in order to achieve no discernible advantage. Again, it is precisely to avoid such pointless and burdensome remands that this Court is mandated by 38 U.S.C.A. § 7261(b) to apply “the rule of prejudicial error.”
The excursion taken by the majority here creates no new rule of law. It cannot, because in Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992), this Court established that its panel opinions constitute “binding precedent” and cannot be overturned by a subsequent panel decision; “[ojnly the en banc Court may overturn a panel decision.” Ibid. The majority opinion here thus decides only this case on its particular facts, and no more. It does not require that the Court in any subsequent case detour from the well-settled Thompson/God-win/Kehoskie harmless-error/affirmance path to pursue an approach that will serve only to confuse claimants, and probably the BVA and the Department of Veterans Affairs (VA) as well.
In sum, there is nothing broken here to fix. Rather, in the name of achieving a form of conceptual neatness, the majority would erect a jurisdictional barrier where none exists in the statute. The Court should be wary of converting statutory limitations into jurisdictional requirements where the statute “does not speak in jurisdictional terms or refer in any way to ... jurisdiction ... [or where no] legislative history ... indicate[s] ... that Congress intended ... a jurisdictional requirement.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 1133, 71 L.Ed.2d 234 (1982). Here, the operative statutory provision is 38 U.S.C.A. § 7105(c) (West 1991), which neither speaks in jurisdictional terms nor in any way refers to jurisdiction; nor is there any legislative history suggesting that Congress intended that provision to establish an inflexible jurisdictional requirement that neither the Secretary of Veterans Affairs nor this Court would have discretion to waive in the interests of equity. See Bowen v. City of New York, 476 U.S. 467, 482-83, 106 S.Ct. 2022, 2031, 90 L.Ed.2d 462 (1986).1 Indeed, section 7105(c) expressly authorizes the Secretary of Veterans Affairs to prescribe regulations permitting exceptions, not inconsistent with title 38 provisions, to the rule that a final decision of a VA regional office may not be reopened or allowed. That exception authority is not dissimilar to the discretionary authority given the Secretary of Health and Human Services under the Social Security Act provisions at issue in Bowen, and Mathews v. Eldridge, 424 U.S. 319, 328 n. 9, 96 S.Ct. 893, 899 n. 9, 47 L.Ed.2d 18 (1976), to permit extensions of the statutory appeals-period limitation; that discretionary authority seemed instrumental in the Court's conclusions that the limitation was not jurisdictional and was subject to judicial tolling for equitable considerations.2 See Bowen, 476 U.S. at 478-80, 106 S.Ct. at 2029-30; Mathews, supra.
*247With good fortune, the course taken by the majority today will be relegated to the status of aberration on the judicial landscape, a curiosity to be memorialized in a law review footnote.
. The Social Security Act requirement (42 U.S.C. § 405(g)) of a "final decision” before an appeal may be taken to federal district court “consists of two elements, only one of which is properly 'jurisdictional' in the sense that it cannot be waived"; the "waivable element is the requirement that the administrative remedies prescribed by the Secretary be exhausted” (quoting Mathews v. Eldridge, 424 U.S. 319, 328, 96 S.Ct. 893, 899, 47 L.Ed.2d 18 (1976)).
. The establishment of a jurisdictional requirement by judicial construction can lead to very harsh results that the Congress may never have anticipated in enacting the statutory provision in question. Illustrative of this is one of this *247Court s earliest decisions, Torres v. Derwinski, 1 Vet.App. 15 (1990), in which it was held, with no citation of authority, that the "imperative language of the statute [38 U.S.C.A. § 7066(a) (West 1991) ] demonstrates that the requirement is jurisdictional in this case as well." Id. at 17. At issue there was the requirement that in "order to obtain review by [this Court] of a final decision of the Board ..., a person adversely affected by that action must file a notice of appeal with the Court ... within 120 days after the date on which notice of the decision is mailed [to the claimant and any authorized representative].” The Torres opinion analogized this requirement to the "mandatory and jurisdictional" nature of the provisions of Rule 3 of the Federal Rules of Appellate Procedure (which the Court found inapplicable to appeals to this Court because it was "inconsistent" with section 7266(a)). The Court manufactured a hard-and-fast jurisdictional rule without any reference to the unanimous view of the Supreme Court that similar statutory provisions governing the filing of appeals of adverse agency administrative actions in an area closely analogous to veterans' benefits or containing language similar to section 7266(a) were not jurisdictional and were therefore subject to exceptions (tolling, estoppel, or waiver) based on equitable considerations. See, e.g., Zipes, 455 U.S. at 393, 102 S.Ct. at 1132 (holding that 180-day time limit in 42 U.S.C. § 2000e-5(e) for filing an unlawful-employment-practice charge with the Equal Employment Opportunities Commission was “not a jurisdictional prerequisite to suit in federal court”); id. at 395-97 n. 12, 102 S.Ct. at 1133-34 n. 12 (tracing Supreme Court cases distinguishing between a "jurisdictional prerequisite” and a "statute of limitations”); id. at 394-95 n. 11, 102 S.Ct. at 1133 n. 11 (time requirement under National Labor Relations Act for filing unfair labor practice charge "operates as statute of limitations subject to recognized equitable doctrines and not as a restriction on the jurisdiction of the ... Board”); Bowen, 476 U.S. at 478, 106 S.Ct. at 2029 (in which the Court (citing Mathews, 424 U.S. at 328 n. 9, 96 S.Ct. at 899 n. 9, and Weinberger v. Salfi, 422 U.S. 749, 763-64, 95 S.Ct. 2457, 2465-66, 45 L.Ed.2d 522 (1975)) held that "the 60-day limitation [in 42 U.S.C. § 405(g) for the filing in U.S. district court for judicial review of an adverse Social Security determination] is not a jurisdictional requirement, but rather is a statute of limitations"); Irwin v. Veterans Admin., 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435, 443-44 (1990) (42 U.S.C. § 2000e-16(c) 30-day time period for filing for judicial review of unlawful employment discrimination charge is not jurisdictional). Hence, the Supreme Court has held that administrative and judicial statutory filing requirements are statutes of limitations and are thus subject to equitable tolling, waiver, and estoppel, especially in the closely analogous area of Social Security disability adjudication, which was involved in Bowen, supra, Mathews, supra, and Weinberger, supra.
As to VA claimants who miss the 120-day filing deadline under 38 U.S.C.A. § 7266(a), this Court has held that "the doctrine of equitable estoppel” cannot be applied where they assert that they were unable to comply because of mental impairment (even when that very impairment is the “disability” for which they are seeking benefits in their appeal) or, presumably, because of misleading actions by the Court itself. Dudley v. Derwinski, 2 Vet.App. 602, 603 (1992) (en banc); see also Butler v. Derwinski, 960 F.2d 139, 140-41 (Fed.Cir.1992). But see Dudley, 2 Vet.App. at 605-06 (Kramer and Steinberg, JJ., dissenting); Didonato v. Derwinski, 2 Vet.App. 42, 44 (1991) (Steinberg, J., dissenting); Elsevier v. Derwinski, 1 Vet.App. 150, 153-55 (1991) (holding that § 7266(a) appeal period was subject to equitable tolling or equitable estoppel — later expressly overruled in Dudley, supra ).