concurring:
I write to explain my vote against full-Court consideration of this ease, which vote was initiated under the Court’s IOP V.(b)(5), by a request made by two judges for such a vote, and resulted in a rejection of full-Court consideration.
Our Rule 35(c) provides the following guidance for sending cases before the full Court: “Motions for full-Court decision are not favored. Ordinarily they will not be granted unless such action is necessary to secure or maintain uniformity of the Court’s decisions or to resolve a question of exceptional importance.” Although I agree that the Court’s opinion in Mayfield v. Nicholson, 19 Vet.App. 103 (2005), is undeniably an opinion that meets the standard of “exceptional importance”, not every such opinion has been issued by the en banc Court. Indeed, most of the Court’s seminal opinions were not en banc. See e.g., Pelegrini v. Principi, 18 Vet.App. 112 (2004); Mariano v. Principi, 17 Vet.App. 305 (2003); Roberson v. Principi, 17 Vet.App. 135 (2003); Quartuccio v. Principi, 16 Vet.App. 183 (2002); Charles v. Principi, 16 Vet.App. 370 (2002); Holliday v. Principi, 14 Vet.App. 280 (2001); Morton v. Gober, 14 Vet.App. 174 (2000); Savage v. Gober, 10 Vet.App. 488 (1997); Landicho v. Brown, 7 Vet.App. 42 (1994); Austin v. Brown, 6 Vet.App. 547 (1994); Stillwell v. Brown, 6 Vet.App. 291 (1994); Thurber v. Brown, 5 Vet.App. 119 (1993); Rosler v. Derwinski, 1 Vet.App. 241 (1991); Cerullo v. Derwinski, 1 Vet.App. 195 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991); Manio v. Derwinski, 1 Vet.App. 140 (1991); Fugere v. Derwinski, 1 Vet.App. 103 (1990); Lovelace v. Derwinski, 1 Vet.App. 73 (1990). For the following reasons, I suggest that the “exceptional importance” criterion alone did not provide sufficient reason to put Mayfield before the en banc Court.
The Federal Circuit has stayed numerous cases awaiting this Court’s opinion on what constitutes prejudicial error. Moreover, numerous cases have been held here awaiting a precedent on prejudicial error and the fourth notice requirement added by 38 C.F.R. § 3.159(b)(1) (2004). These cases need to be moved forward, and full-Court consideration would have caused significant delay. See IOP V.(b)(8) (allowing 30 calendar days after date of circulation of the proposed full-Court opinion for Judge to circulate separate opinion without specifying additional time for any respon*221sive opinions). As to securing or maintaining uniformity of Court decisions, the Mayfield panel did not believe that the Mayfield opinion conflicted with any existing caselaw, including Pelegrini, supra. Rather, Mayfield evolved Pelegnni by generally eliminating the need for “speculation” by the Court in order to consider the prejudice question in a case. Mayfield, 19 Vet.App. at 112-13, 118-19. As to the timing-of-notice requirement, Mayfield applied Pelegrini to conclude that there was a timing-of-notice deficiency and then to conclude that that deficiency was cured — and thereby rendered nonprejudicial — by subsequent complying notice and opportunity for the appellant to respond to it. As to the fourth notice requirement (“VA will also request that the claimant provide any evidence in the claimant’s possession that pertains to the claim”, 38 C.F.R. § 3.159(b)(1) (2004)), Mayfield is the first precedential opinion of the Court to apply that element and find no error based on substantial compliance. In sum, the Mayfield panel saw no conflict in the Mayfield proposed opinion with any of the Court’s caselaw regarding the three statutory notice requirements, timing of notice, the regulatory fourth notice requirement, or prejudice.
In light of the foregoing considerations and consistent with the Court’s prior practice in deciding whether to take a case before the full Court, I believe that full-Court consideration generally is not warranted where a majority of the full Court does not disagree with a panel opinion’s proposed holdings, which in Mayfield were: (1) Prejudice burden; (2) prejudice standard; (3) fulfillment of statutory notice requirements; (4) fulfillment of regulatory fourth notice requirement in the context of statutory notice compliance; and (5) prejudice from any Charles, 16 Vet.App. at 373-74, reason-or-bases error in light of statutory notice compliance/no prejudice.
I regret that our- dissenting colleagues conclude otherwise, and I concede that merely because the majority — even an overwhelming majority — disagrees with them certainly does not mean that they are wrong in their votes. However, they are wrong, I believe, in suggesting that the Mayfield opinion was written without “the full and contemporaneous participation of all judges of the Court.” A proposed panel opinion was circulated to the other six judges of the Court for comments prior to issuance of the proposed panel opinion, see IOP IV.(a)(2) (providing for review and comment by all judges); the panel received and considered extensive substantive comments from nonpanel members and, as a result of this comment process, the panel made substantive changes in the proposed opinion. It was only after that collegial and collaborative process had run its course that the Court voted 2-7 against the suggestion for full-Court consideration.