concurring:
I concur in the majority’s opinion to the extent that it holds that the appellant’s claim for dependency and indemnity compensation is not well grounded and that the duty to assist therefore was not triggered. However, for the reasons that follow, I concur only in the result of the majority’s opinion insofar as it holds that *236the Board of Veterans’ Appeals (BVA or Board) did not commit any postremand procedural error in its notification regarding the submission of evidence.
Pursuant to 38 C.F.R. § 20.1304(a) (1998), an appellant is entitled to submit additional evidence for “a period of 90 days following the mailing of notice to them that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board, or until the date the appellate decision is promulgated by the [BVA], whichever comes first.” See Kutscherousky v. West, 12 Vet.App. 369, 372 (1999) (per curiam order) (holding that “following the remand of a case from the Court, the Board’s mailing to the appellant of notice regarding postremand submission of evidence, is the functional equivalent of the § 20.1304(a) ‘mailing of notice to the [appellant] that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board’ ” and that “in every case in which the Court remands to the Board a matter for adjudication ... an appellant is entitled, until 90 days have expired after the Board mails to the appellant a postre-mand notice ... to submit, under the parameters set forth in 38 C.F.R. §§ 19.37, 20.1304(a), ... additional evidence”); 38 C.F.R. § 19.36 (1998) (requiring written notice to an appellant, and any representative, regarding § 20.1304(a) appellate-record certification and transfer and regarding period for, inter alia, submission of additional evidence). In the present case, the Board, following a remand by the Court, notified the appellant, in a May 5, 1998, letter, that additional evidence “must be forwarded to this office within 30 days of the date of this letter” and that “[Hollowing receipt of your response or the end of the 30[-]day period, whichever comes first, the case will be forwarded to a member of the Board for adjudication.” Record (R.) at 290. On May 7, 1998, the appellant responded that she did not have any additional evidence to submit at that time. R. at 290. The Board, on June 24, 1998, then issued the decision on appeal.
In its analysis, the majority initially recognizes that postremand submissions of evidence to the Board will be governed by 38 C.F.R. § 20.1304(a), and that, under that regulation, “the appellant does not necessarily have 90 days to submit additional evidence if the Board renders its decision within 90 days of transfer.” Ante at 234-235. The majority then essentially concludes that there were no “procedural defect[s] in the Board’s actions” because the Board notified the appellant that she would be permitted to submit evidence for only 30 days and because, in response, the appellant indicated that she had no further evidence to submit. Id.
I agree with the majority that, under the regulation, an appellant will not necessarily be entitled to submit evidence for the entire 90-day period and that such a period may be shortened to a time unknown to the appellant. However, as the majority itself notes, the promulgation of a BVA decision is the sole basis provided in § 20.1304(a) for terminating the 90-day period prior to the expiration of the full 90 days. (Thus, under the facts of this case, the appellant was entitled to submit evidence for the nearly 50-day period between the May 5, 1998, notice, and the June 24, 1998, issuance of the Board’s decision.) Pretermitting the question of whether the regulation can meet both due process (see generally Thurber v. Brown, 5 Vet.App. 119, 122-23 (1993)) and fair process (see generally Austin v. Brown, 6 Vet.App. 547, 551-52 (1994)) concerns, there does not appear to be any basis for the majority’s conclusion that, under the regulation, the BVA may shorten the 90-day period merely by notifying the appellant that a shorter period will apply, or by notifying the appellant that in 30 days (or less, based upon an earlier than 30 day response) the case will be forwarded for an adjudication to occur at some unknown time. Nor does there appear to be a basis for concluding that the period may be terminated upon “receipt of [the appellant’s] response.” R. at 290. Consequently, I *237believe that the BVA erred in purporting to limit the period for submission of evidence to a maximum of 30 days, and in notifying the appellant that occurrences other than the issuance of the BVA decision would terminate the period.
Nevertheless, I concur in the result reached by the majority with regard to this issue because the appellant, upon receiving the 30-day notice from the Board, merely responded, through her representative, that she did not intend to submit additional evidence at that time. Although it is unclear what the appellant’s representative intended by the phrase “at this time” (R. at 290), the appellant, prior to the Board decision, did not raise to the Board any disagreement with the period specified in the May 1998 notice, did not request additional time within which to submit evidence, and did not attempt to submit additional evidence. Nor has the appellant proffered or identified to the Court any evidence that would have been submitted had additional time for submission been allotted. Therefore, I believe that, in light of the appellant’s actions, any procedural error committed in this regard was rendered nonprejudicial. See 38 U.S.C. § 7261(b) (providing that “the Court shall take due account of the rule of prejudicial error”).