concurring:
Both the earlier single-judge decision in this matter, Booth v. Brown, 4 Vet.App. 280 *113(1993), (mem. dec.), and today’s panel decision are in keeping with the precedential decisions of this Court in White v. Derwinski, 1 Vet.App. 519 (1991) and Ivey v. Derwinski, 2 Vet.App. 320 (1992) and therefore I am compelled to concur. Nevertheless, I do so begrudgingly because I continue to believe that White and Ivey cannot be squared with 38 U.S.C. § 5107(a). See Counts v. Brown, 6 Vet.App. 473, 480-83 (1994) (Farley, J., concurring). In my view, once the Court determined in 1993 that this appellant had not submitted new and material evidence, there was nothing to remand; 38 U.S.C. § 5107(a) did not impose upon the Secretary a duty to assist this appellant because his finally-denied claim was not reopened. See 38 U.S.C. § 5108. To the extent that our duty-to-assist jurisprudence under White and Ivey appears to the contrary, I again “respectfully suggest to our bench and bar that the emperor we have created has no statutory clothes.” Id. at 483.