concurring:
I concur in the result because I find that the Board of Veterans’ Appeals (BVA) complied with the mandate of the Court. The appellant argues that the BVA failed to carry out the remand order because it “dismissed the claim without readjudicating it”. Brief (Br.) at 1-2. The Court’s 1993 memorandum decision concluded with the statement that the 1991 BVA decision was “VACATED and the matter REMANDED for readjudication consistent with this decision.” R. at 495. The BVA then proceeded to readjudicate under the law as it existed at the time of the new BVA decision, and dismissed the clear and unmistakable error (CUE) claim. The Court did not instruct the BVA to readjudi-cate based on the law as it was in 1991. I believe that no more need be said to dispose of the law-of-the-case doctrine in this case.
As to the res judicata contention by the appellant, I believe it is inapposite, and that the appellant could not obtain the relief he seeks by application of that doctrine. As explained below, therefore, I do not believe the Court should reach the question whether the Court’s 1993 memorandum decision remanding for an adequate statement of reasons or bases has res judicata effect on subsequent administrative adjudication proceedings.
The appellant argues that res judicata prevents collateral attack on a completed lawsuit and that therefore the Court’s 1993 remand order cannot be affected by a subsequent decision — that is, the Federal Circuit’s decision in Smith (William) v. Brown, 35 F.3d 1516 (Fed.Cir.1994). Although it is true that res judicata prevents a collateral attack, that is because res judicata is, broadly, a require*475ment that (1) a plaintiff merge all claims that are part of a particular action (or that a defendant file a related counterclaim) or be barred from asserting those claims (or counterclaims) in a later lawsuit if the plaintiff (or defendant) failed to raise them in the first lawsuit; and (2) issues decided once may not be relitigated by a party. See, e.g., Teledyne Indus., Inc. v. NLRB, 911 F.2d 1214, 1220 (6th Cir.1990); Roach v. Teamsters Local Union No. 688, 595 F.2d 446, 448-49 (8th Cir.1979). Therefore, even if the appellant were correct here that the judgment was res judicata, res judicata would not apply to the BVA’s readjudication of the case, because the BVA is not a party to the appeal to this Court.
Therefore, the question of res judicata— whether the focus is on claim preclusion or issue preclusion — on the substantive issues is a red herring. What the appellant apparently means to argue is the mandate rule, or law-of-the-ease doctrine (which the Court has recently dealt with in Chisem v. Brown, 8 Vet.App. 374, 375 (1995)), and subject matter jurisdiction. The Court should deal with res judicata on the substantive issues only by noting that it is a doctrine which, even if applicable, would not help the appellant.
Furthermore, I believe that the majority opinion may not be correct in concluding that a remand by this Court for a readjudication on the ground of a failure of the BVA to provide an adequate statement of reasons or bases under 38 U.S.C. § 7104(d)(1) is not res judicata because it is not a decision “on the merits”. As one treatise states:
Traditionally, the third and final requirement for res judicata is that the judgment must be “on the merits.” In general terms, a judgment is considered to be on the merits if it is a disposition based on the validity of the plaintiffs claim, rather than on a technical procedural ground. Therefore, any judgment in favor of a claimant establishing his rights and ordering relief will be on the merits for res judica-ta purposes, whereas a judgment against the claimant may or may not be on the merits because it may result either from a decision on the substantive rights involved or from a purely procedural ruling.
Unfortunately, the phrase “on the merits” has created much confusion and obscures the fact that a court decision may be given preclusive effect independent of the merits of the underlying claim.... For these reasons the Restatement Second of Judgments formulates the rules of res judicata without using the traditional phrase “on the merits”. Under its approach the principle of bar applies to all valid and final personal judgments, although exceptions are allowed for those cases that may be characterized as “not on the merits” under the older scheme.
Jack H. Friedenthal et al., Civil PROCEDURE § 14.7, (1985) (emphasis added). Perusal of the Wright & Miller treatise reveals that most areas of controversy as to whether a judgment was on the merits concern cases where there was a dismissal, and even some dismissals have res judicata effect. See 18 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure §§ 4435-4447, 4466. Wright and Miller, as does Friedenthal, characterize the phrase “on the merits” as “unfortunate” because an adjudication can have preclusive effect even though it is not “on the merits”. Id. at § 4435. Moreover, it is not at all clear that a final Court decision remanding to the BVA for readjudication and an adequate statement of reasons or bases because the BVA decision was legally defective is not a judgment on the merits of that BVA decision. When the BVA readjudicates, it issues a “new” decision that must be appealed to this Court by a new Notice of Appeal. Such a reasons-or-bases remand does not seem analogous to a procedural matter where the ensuing proceedings are part of the same case, or where the Court retains jurisdiction over the remand proceedings, see Saunders v. Brown, 4 Vet.App. 320, 327 (1993).
The authority cited in the majority opinion for finding that res judicata does not apply here — a U.S. District Court decision and Black’s Law Dictionary — is scant, and I see no reason for reaching out to address that issue when the appellant’s contention can be *476disposed of fully because it is defective on its face.
Finally, I differ from the majority’s analysis as to the material appended to the Secretary’s brief. The Secretary offers that material for purposes of demonstrating that because of mootness the Court is without jurisdiction to consider the appellant’s argument, addressed in part IV of the majority’s opinion, regarding whether the Department-of Veterans Affairs regional office also committed CUE in its September 1983 decision by listing the appellant’s service-connected hearing loss as having been incurred, rather than aggravated, in service. Br. at 5-10; Reply Br. at 2-5. When an issue becomes moot while an appeal is pending here, the Court is deprived of jurisdiction to decide that issue because it is no longer in controversy. See Aronson v. Brown, 7 Vet.App. 153, 155 (1994) (citing Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992)); see also Rife v. Brown, 7 Vet.App. 340, 341 (1994) (per curiam order). This Court has authority to look beyond the appellate record in deciding jurisdictional questions. See Stokes v. Derwinski, 1 Vet.App. 201, 203 (1991). Accordingly, I believe that the Court may review the appended documents in order to determine if it has jurisdiction to review the Board’s disposition of this CUE claim. These documents show that the matter is no longer in controversy and that the Court thus does not have jurisdiction over this issue because it has become moot. I would therefore dismiss the appeal as moot as to this CUE claim rather than affirm the Board decision implicitly on this point.