with whom KRAMER, Associate Judge, joins, dissenting:
I respectfully dissent from the Court’s denial of the motion of the Secretary of Veterans Affairs (Secretary) for en banc review of the panel decision. I would grant review for the reasons set forth in my opinion, concurring in part and dissenting in part, in McGinnis v. Brown, 4 Vet.App. 239, 244 (1993), and in my dissenting opinion in the instant case, Green v. Brown, 4 Vet.App. 382, 384 (1993); and for some of the reasons set forth in the Secretary’s March 29, 1993, motion.
Briefly, the Court’s precedents now seem to have carved out parallel paths of, on the one hand, affirming a Board of Veterans’ Appeals (BVA or Board) decision based on the absence of prejudicial error, and, on the other, vacating that decision, where in either case the BVA has denied a claim on the merits which should not have been reached because no new and material evidence was presented to justify reopening the disallowed claim pursuant to 38 U.S.C.A. §§ 5108 and 7104(b) or § 7105(c) (West 1991).1 Under Bethea v. Derwinski, *862 Vet.App. 252, 254 (1992), the Court should resolve this divergence by en banc review.2
Second, the Court is not consistently applying the rule of prejudicial- error in 38 U.S.C.A. § 7261(b) (West 1991), of which the Court is required to take “due account”. That rule counsels against overturning a BVA decision unless “the identified error caused substantial prejudice to the claimant’s case.” S.Rep. No. 100-418, 100th Cong., 2d Sess. 61 (1988); cf. Russell v. Principi, 3 Vet.App. 310, 313 (1992) (en banc) (“Errors that would not have changed the outcome are harmless.”).
Third, the Secretary presents a substantial argument, foreshadowed in my separate opinion in McGinnis, 4 Vet.App. at 244, that the BVA is not without jurisdiction to decide the underlying claim even though it may be improvident for it to do so. The Secretary suggests a conflict with the opinion of the Court in Bernard v. Brown, 4 Vet.App. 384, 389 (1993), where the Court held that the BVA had jurisdiction, by virtue of timely filings of a Notice of Disagreement and substantive appeal, to resolve “all questions in a matter” which was the subject of a decision by the agency of original jurisdiction and that “the matter” in a claim for reopening was the underlying benefits claim, which involved two questions: (1) the existence of new and material evidence to reopen and (2) adjudication on the merits. This apparent con*87flict between panel opinions is further reason for en banc review in this case. See Bethea, supra. As I said in McGinnis, 4 Vet.App. at 246, and as Judge Kramer’s excellent dissenting statement in the instant matter makes manifest, the “Court should be wary of converting statutory limitations into jurisdictional requirements”, lest unanticipated, and otherwise avoidable, adverse results, such as the Court vacating a BVA decision awarding benefits in a “reopened” claim, may ensue.
Fourth, as noted in my separate opinion in McGinnis, the practice of “vacating” BVA decisions on jurisdictional grounds under the circumstances involved in McGinnis and in the present case is likely to generate considerable confusion and administrative delay. Moreover, where, as here, the Court vacates a BVA decision without remanding for further proceedings, the result is that a claimant who has properly appealed to the BVA from an RO adjudication will not have received any final BVA decision on his or her claim. Such a result is contrary to the statutory mandate that the Board “shall” make “final decisions” on claims properly appealed to it. 38 U.S.C.A. § 7104(a) (West 1991). However, the alternative of remanding to the BVA for correction of a “harmless error” is contrary to the mandate in 38 U.S'.C.A. § 7261(b) and would result in a needless waste of time and resources by all parties. The well-established harmless-error/affirmance practice is more comprehensible, expeditious, and in keeping with the overall statutory scheme.
Fifth, as to the concern about the propriety of the Secretary as the winner moving for en banc review, I agree that such motions should not generally be made or granted. However, where, as here, there are potentially conflicting lines of precedents in not one but two areas, I think the Secretary would be remiss if he did not seek clarification, and only the en banc Court can provide it. Moreover, analyses which apply to other courts’ practices and consideration regarding en banc review may not have literal application to this Court, because (1) there is very little practical recourse other than en banc review from the panel decisions of this Court (since the jurisdiction of the United States Court of Appeals for the Federal Circuit to review appeals from this Court is statutorily restricted and has been viewed very narrowly by the Federal Circuit, see, e.g., Livingston v. Derwinski, 959 F.2d 224, 225-26 (Fed.Cir.1992); Johnson v. Derwinski, 949 F.2d 394, 395 (Fed.Cir.1991); Machado v. Derwinski, 928 F.2d 389, 391 (Fed.Cir.1991)); and (2) the Secretary, as the appel-lee in all cases before us, is obliged to execute our decisions and implement and follow our precedential opinions. I also note that, under part V.(a)(3) of the Court’s Internal Operating Procedures, when any judge requests an en banc vote one must be held. In this case, both Judge Kramer and I requested one, and one was held.
Finally, I am at a loss to understand the zeal to depart from the long and well-established line of harmless-error/affir-mance precedents cited in my separate opinion in McGinnis, 4 Vet.App. at 244. As the author of McGinnis recently expounded in heralding the virtues of stare decisis:
As Justice Brandéis himself observed ... in commenting on the presumption of stability in statutory interpretation: “Stare decisis is usually the wise policy because in most matters, it is more important that the applicable rule of law be settled than that it be settled right.... This is commonly true, even where the error is a matter of serious concern, provided correction can be had by legislation.”
Hamilton v. Brown, 4 Vet.App. 528, 547 (1993) (en banc) (Farley, J., dissenting) (quoting Square D. Co. v. Niagara Frontier Tariff Bureau, 476 U.S. 409, 424, 106 S.Ct. 1922, 1930, 90 L.Ed.2d 413 (1986)). As to the matter before us here, adherence to our well-established precedents is called for both because they are right and because they are there.
. Although the Court in the instant case and, by and large, in McGinnis, apparently focused its analysis on whether evidence received since a prior BVA decision which became final under 38 U.S.C.A. § 7104(b) (West 1991) was "new and material” under 38 U.S.C.A. § 5108 (West 1991), the proper inquiry in both cases should be whether the evidence received since a final un-appealed decision of a Department of Veterans Affairs (VA) regional office (RO) — a 1987 RO decision in McGinnis and a 1988 RO decision in Green — was new and material. Pursuant to 38 U.S.C.A. § 7105(c) (West 1991), if a claimant does not file a Notice of Disagreement (NOD) within one year after the date of mailing of notice of the result of initial review or determination by the RO, then that RO "action or determination shall become final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with this title.” See Bernard, v. Brown, 4 Vet.App. at 384 (1993). Therefore, *86when the veterans in McGinnis and Green failed to file a timely NOD appealing to the Board the 1987 and 1988 RO decisions, respectively, each of those decisions became final under 38 U.S.C.A. § 7105(c).
Section 7105(c) appears on its face to permit reopening of claims finally denied by an RO and not timely appealed only in circumstances specified in regulations promulgated by the Secretary that are "not inconsistent with" title 38 of the U.S.Code. However, section 7105(c) cannot properly be read, in isolation from 38 U.S.C.A. § 5108 (West 1991). See Talley v. Derwinski, 2 Vet.App. 282, 286 (1992) (" '[e]ach part or section [of a statute] should be construed in connection with every other part or section so as to produce a harmonious whole”' (quoting 2A NORMAN J. SINGER, SUTHERLAND STAT. CONST. § 46.05 (4th ed. 1984); see also § 46.05 (5th ed. 1992)). Nevertheless, the Court has not yet explicitly held that such a claim must also be reopened pursuant to section 5108 when new and material evidence is presented to or secured by VA.
Section 5108 is mandatory; it requires "the Secretary" (not just the BVA) to reopen “a claim which has been [finally] disallowed” (not just a claim which has been finally disallowed by the BVA) when new and material evidence is presented or secured with respect to that claim. Construing the two sections so as to harmonize them requires that section 7105(c) be read as providing by implication that, at a minimum, a claim denied by a final RO decision must be reopened when new and material evidence is presented under section 5108 (along the lines of the explicit exception in section 7104(b) as to reopening prior, final BVA decisions), especially because section 7105(c) authorizes exceptions “not inconsistent with” statutory provisions in title 38, U.S.Code, and hence to construe section 7105(c) in any other way would be "inconsistent with” section 5108. The Secretary also has broad authority, under 38 U.S.C.A. § 501(a) (West 1991), "to prescribe all rules and regulations which are necessary or appropriate to carry out laws administered by the Department and are consistent with those laws.” (Emphasis added.)
The Secretary's current regulations are, at best, ambiguous as to whether they authorize reopening, upon new and material evidence, of a claim previously and finally denied by an unappealed RO decision. The Secretary has prescribed standards for adjudicating requests to reopen a claim after “an appellate decision”. 38 C.F.R. § 20.1103 (1992) (emphasis added). In 38 C.F.R. § 3.160(e) (1992), however, the Secretary has also defined a "[r]eopened claim" as "[a]ny application for a benefit received after final disallowance of an earlier claim”, and done so without reference to whether such final disallowance was by a BVA "appellate decision” or a final unappealed RO decision. Other regulations dealing with reopened claims and "new and material evidence” do not address whether a claim previously and finally denied by a final unappealed RO decision may be reopened upon new and material evidence. See 38 C.F.R. §§ 3.156, 3.400(q) (1992). To the extent that there seems to be a technical conflict between the provisions, a “necessary” regulation, pursuant to 38 U.S.C.A. §§ 501(a) and 7105(c), giving full effect to the statutory title 38 scheme, would resolve it.
. Compare the 16 pre-McGinnis panel opinions cited in my McGinnis dissent, 4 Vet.App. at 245, and the post-McGinnis reliance on that precedent in Spencer v. Brown, 4 Vet.App. 283 (1993); ZO v. Brown, 4 Vet.App. 440, 442 (1993) (mem. dec.); Halle v. Brown, 5 Vet.App. 15 (1993) (unpublished mem. dec.), with McGinnis, 4 Vet. App. at 243-44; Green, 4 Vet.App. at 383; Ingram v. Brown, 5 Vet.App. 5 (1993) (mem. dec.).