stating reasons for voting to deny rehearing en banc:
I write to express my reasons for voting against en banc review of this case. There are two. The Secretary is wrong in his argument as to the Board’s jurisdiction, and in any event, he lacks standing to complain.
The Secretary, through the Board, purportedly denied benefits by denying a reopened claim. The panel held reopening to be in excess of statutory authority citing 38 U.S.C.A. § 7261(a)(3)(C) (West 1991) and McGinnis v. Brown, 4 Vet.App. 239 (1993). Thus, the Board’s , denial of service connection and benefits has been sustained — the Secretary has prevailed on appeal and the veteran has lost and has not sought reconsideration by the panel or en banc review.
Now the Secretary quarrels with the way he won. He says we should follow a rationale earlier followed in improperly reopened, but denied, claims; that is, we should hold any assumed or actual error in the readjudication to be harmless under 38 U.S.C.A. § 7261(b) (West 1991).
The Secretary limits his argument respecting the Board’s jurisdiction to act on the merits of an improperly reopened claim to 38 U.S.C.A. § 5108 (West 1991), a companion provision of 38 U.S.C.A. § 7104(b) (West 1991). He writes “ ... the panel seems to have confused an evidentiary statute 38 U.S.C.A. [§ 5108] with a jurisdictional statute.” Motion at 7 (emphasis supplied). As observed, he makes no reference to sections 7104(b) and 7105(c) (West 1991). But it is the latter provisions which ban reopening, and, as to section 7104(b), even preclude consideration of a previously disallowed and final claim unless new and material evidence is submitted.
Accordingly, the “evidentiary statute” is hardly the determinative provision. Sections 7104(b) and 7105(c) are, and they prohibit reopening except in limited circumstances. I make specific note that a final Regional Office (RO) decision was rendered in 1988. It was not appealed to the Board. Section 7105(c) thus makes that decision “final and the claim will not hereafter be reopened or allowed, except as may other*84wise be provided by regulations not inconsistent with this title.” (Emphasis supplied.) The Secretary fails to cite § 7105(c) (which in major part tracks the finality proscription of § 7104(b)). He also cites no regulations adopted to permit reopening of the final (and unappealed) RO decisions. Thus, reopening of the earlier and final 1988 RO decision was “in excess of statutory jurisdiction, authority, [and] limitations” and must be set aside. 38 U.S.C.A. § 7261(a)(3)(C). See McGinnis, 4 Vet.App. at 244. Therefore, the Secretary’s argument fails for lack of a valid initial predicate and en banc review based on it would be improvident.
In addition, though our en banc rule (Rule 35(b)), and for that matter Fed. R.App. P. 35(b), does not limit the right to seek en banc review to the losing party (each merely says “A party may ...”), the issue of who has standing to do so must be faced. Rule 35 of the Federal Rules of Appellate Procedure includes initial en banc review (without an earlier panel decision). Hence, permitting any party to suggest an en banc hearing is understandable. Our Rule 35(b) limits en banc requests to “a case decided by a panel.” Ordinarily, as observed in section 68.131 of the Cyclopedia of Federal Procedure, only a non-prevailing party to the appeal may petition for rehearing en banc. 14A CYC. FED. PROC. § 68.131 (3d ed. 1992).
We, therefore, should not entertain an en banc motion from the winning side. To do so simply permits that party to complain about how he won. These “not favored” motions (Fed.R.App.P. 35(a)) are inappropriately used to carp about the rationale for a favorable disposition.
In McGinnis, we went beyond a harmless error approach by applying sections 7104(b) and 7105(c). We also acknowledged the earlier harmless error decisions and noted that this more complete analysis did not require en banc consideration because it was not a decision contemplated by our decisional consistency rule announced in Bethea v. Derwinski, 2 Vet.App. 252 (1992) (see McGinnis, 4 Vet.App. at 244). I remind our colleagues, who find precedent in our earlier harmless error rationale where it is not, that, in any event, precedent is to guide, not to conquer.
To be sure, as the Secretary argues, subsequent to McGinnis, one panel and two judges in three single-judge decisions have continued to use the harmless error rationale to sustain the Board’s decisions. To the extent that these decisions reflect inconsistency, it is only as to approach and not as to the ultimate decision. See McGinnis, 4 Vet.App. at 244 (citing to Be-thea, supra). Nonetheless, in the interest of uniformity, it is to be hoped that a single approach will follow. This will serve to avoid a difference in various cases as to when the last “final” adjudicatory decision was made. See McGinnis, 4 Vet.App. at 244 (improper reopening deprives “the previous denial of finality, and effectively establishes a date for new final denial which has no basis in fact or in law”).
Our dissenting colleagues cry havoc over a hypothetical appeal in which the Secretary unlawfully grants some, but not all requested benefits in an illegally reopened claim. Such is not this case; but should it arise, the Court can then deal with it. Hypothetical cases are a poor reason indeed for a rehearing en banc.
Accordingly, en banc review, in my view, is not appropriate.