concurring in the result:
I join in the Court’s conclusion that the appellant has not presented a valid basis for the Court to recall its mandate. However, I cannot join in the order as written because it fails to set forth any of the salient facts, now conceded by the Secretary, which the Court has found insufficient to support the extraordinary relief that the appellant seeks once again.
I write separately because I do not believe that it is enough for the Court to state its conclusion without any factual analysis in support thereof, especially under the circumstances present here. Those circumstances are: (1) the Court is interpreting and applying a very recent decision by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), i.e., Bailey v. West, 160 F.3d 1360 (Fed.Cir.1998) (en banc); (2) the Court has considered Bailey only once before, in Shepard v. West, 12 Vet.App. 107 (1998) (per curiam order), in which the Court applied the facts to the law of equitable tolling as the basis for its conclusion that Bailey did not apply; and (3) the Bailey opinion itself remanded the matter therein to this Court for an application of the facts to the law of equitable tolling, see Bailey, 160 F.3d at 1368; see also Bonneville Associates, Limited Partnership v. Barram, 165 F.3d 1360, 1366 (Fed.Cir.1999) (noting that in Bailey the Federal Circuit “did not hold that the limitations period should be equitably tolled in Bailey’s case, but merely remanded the case to the Court of Veterans Appeals to determine that question”). I believe that the majority leaves the parties and the public with the impression that we believe that they should trust that we analyzed the matter sub silentio, leaving them to guess as to our rationale.
The Secretary’s February 19, 1999, response in this case (to which a Preliminary Record [hereinafter “R.”] is attached), concedes that the Board of Veterans’ Appeals (Board or BVA) mailed its decision to the appellant at the incorrect address by indicating (Response at 3) that a Department of Veterans Affairs (VA) regional office (RO) had received notice of his correct address before the Board made the mailing. See Cross v. Brown, 9 Vet.App. 18, 20 (1996) (per curiam order) (holding that change-of-address information sent to VARO was within Secretary’s control and therefore was before the BVA prior to issuance of BVA decision). The chain of address-related events appears to be as follows, concerning two Virginia addresses (Ritter St. and Leicester Rd.) and one Florida address:
6/91 RO mails correspondence to appellant at Ritter St. address. R. at 3, 5 9/91 Appellant mails correspondence to RO that indicates Florida address. R. at 7.
11/91 RO mails correspondence to appellant at Florida address. R. at 9.
12/91 Appellant mails correspondence to RO that indicates Leicester Rd. address. R. at 16.
2/92 RO mails correspondence to appellant at Leicester Rd. R. at 19.
5/92 Appellant mails correspondence to BVA, care of RO, that indicates Ritter St. address. R. at 28a.
8/92 BVA decision apparently sent to Leicester Rd.; Secretary does not provide in the preliminary record a document showing this. He thus, apparently, concedes the point.
10/92 RO mails correspondence to appellant at Ritter St. R. at 33.
3/93 Appellant mails correspondence to RO that indicates Ritter St. address.
R. at 36.
3/93 RO mails correspondence to appellant at Leicester Rd. R. at 39.
5/93 RO readdresses and remails above %s document to Ritter St. R. at 39.
Although conceding that the BVA decision was mailed to the incorrect address for the appellant (the RO having received notice of a new address), see Cross, supra, the Secretary does not indicate that the BVA decision was remailed to him at the correct (or to any) *338address, as had occurred in May 1993 when, apparently, the original copy of RO correspondence mailed to him was returned to sender. R. at 39.
As noted by the majority, ante at 335, the instant motion is not the first time that this appellant has sought reinstatement of his appeal. See McNaron v. Brown, 10 Vet.App. 61 (1997). I believe that, had the appellant, when he first sought reinstatement in May 1996, id. at 62, come forward with the allegation that he now makes in the instant motion, and had the above factual information been made available to the Court by the Secretary, as here, in response to such an allegation, the Court’s prior decision might have been different. At that time, the Court held as follows:
The appellant has failed to establish any special circumstances that would justify the recall of the Court’s mandate. There is no evidence that the judgment was obtained by fraud on the part of the Secretary. The appellant does not argue that any ministerial error led to the adverse decision, or that the law or circumstances have changed in any way that would warrant the recall. There is nothing to suggest that the newly submitted evidence was unavailable to the appellant at the time of the dismissal of his appeal. In fact, the only error that can be found is the appellant’s failure to present the evidence when he had the opportunity to do so and the Court was authorized to consider it.
McNaron, 10 Vet.App. at 64 (emphasis added). Clearly, had the Court known of the ministerial error that caused the Board to mail its decision to the incorrect address, the emphasized statement in the above passage from McNaron would not have been accurate.
Against this factual background, I concur with the Court’s order in this matter, which sets forth legal reasons why the appellant’s instant motion must be denied at this extraordinarily late stage. “ ‘There is nothing to suggest that the newly submitted evidence was unavailable to the appellant at the time of the dismissal of his appeal. In fact, the only error that can be found is the appellant’s failure to present the evidence when he had the opportunity to do so and the Court was authorized to consider it.’ ” Ante at 336 (quoting McNaron, supra). There appears to be no reason why the appellant could not have made the instant allegation at the time of his prior motion to reinstate his appeal. In the Court’s prior opinion, we noted: “The Secretary filed a response on September 27, 1996, in which he asserted that the BVA decision was mailed to the appellant at his last known address.... The Secretary was unable to provide the Court with documentation that conclusively established that the proper mailing procedures were followed, but noted that the absence of such evidence is not necessarily indicative that proper procedures were not followed.” Id. at 63. This statement, too, would likely have been implicated by the appellant’s instant motion, because it tends to rebut the Secretary’s earlier assertion that proper procedures had been followed after the RO had been made aware of the Ritter St. address and had in fact mailed correspondence to the appellant at that address. Further, because VA had essentially lost the information that the appellant now presents to the Court, the appellant was in the best position to come forward with that information at the time of his prior motion to reinstate this appeal. It is unclear why he did not do so.
As to the majority’s holding that “[ejven if the Court were to apply Bailey [,supra ] to the facts here, this case would not avail itself of equitable tolling”, I concur, but only insofar as that statement is qualified by the Court’s “balanc[ing of the considerations set forth in Bailey ] against the countervailing concerns of repose and preservation of finality in judicial proceedings”, which led to the majority’s conclusion that “the concerns of repose and preservation triumph over the application of Bailey and preclude this Court from granting a motion to recall its mandate and reinstate the appeal.” Ante at 337. Accordingly, I would not, as does the majority, ante at 336, decide whether, had the appellant presented the arguments made in the instant motion prior to the Court’s initial decision in this matter, or even at the time of his prior motion to reinstate his appeal, the *339application of Bailey would have been indicated.