UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 02-80
EDWARD HACKETT , JR., APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, KASOLD, and HAGEL, Judges.
ORDER
In a January 8, 2003, single-judge order, the Court vacated a January 7, 2002, Board of
Veterans' Appeals (Board) decision that declined to reopen Mr. Edward Hackett's previously
disallowed claim for service connection for retinitis pigmentosa and remanded the matter because
VA had failed in its duty to notify under 38 U.S.C. § 5103(a). The Court, on March 6, 2003, entered
judgment, and the Secretary appealed to the United States Court of Appeals for the Federal Circuit
(Federal Circuit). The Federal Circuit, on May 6, 2004, granted the Secretary's motion to vacate this
Court's January 2003 order and remanded the matter to the Court for reconsideration in light of the
Federal Circuit's decision in Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).
On July 12, 2004, Mr. Hackett, through counsel, filed a motion for leave to file a supplemental
brief. On that same date, the Court received Mr. Hackett's supplemental brief. On July 16, 2004,
the Secretary filed a motion opposing Mr. Hackett's motion to file a supplemental brief and also
moved for a stay of the proceedings pending this Court's disposition of Conway v. Principi, U.S. Vet.
App. No. 01-0107 (Notice of Appeal filed Jan. 16, 2001); Nelson v. Principi, U.S. Vet. App. No.
02-2140 (Notice of Appeal filed Nov. 21, 2002); and McCutcheon v. Principi, U.S. Vet. App. No.
01-1027 (Notice of Appeal filed June 14, 2001). The Court will deny the Secretary's motion for a
stay, grant Mr. Hackett's motion for leave, and accept for filing Mr. Hackett's supplemental brief.
Furthermore, the Court will order the Secretary to file with the Court a response addressing the
issues raised in Mr. Hackett's supplemental brief and will afford Mr. Hackett the opportunity to
reply to the Secretary's response. The Secretary will further be ordered to supplement the record on
appeal. In particular, the Court requires inclusion in the record of the "VCAA letter" Mr. Hackett
refers to in his November 2001 letter to the Board. See R. at 255.
Additionally, because the Court believes that oral argument will materially assist in the
disposition of this appeal, the Clerk of the Court will set the matter for oral argument after the
responses of the parties have been received and as soon as the business of the Court permits. Cf.
Winslow v. Brown, 8 Vet. App. 469, 471 (1996) (denying motion for oral argument where Court does
not believe it will materially assist the disposition of the appeal). Under 38 U.S.C. § 7261(b)(2) and
Conway, supra, the Court is required to take due account of the rule of prejudicial error in all cases
addressing the notice requirements in 38 U.S.C. § 5103(a). At oral argument, the parties should be
prepared to address, among other things, which party has the burden of establishing that there has
been prejudicial error committed in the proceedings before VA.
Upon consideration of the foregoing, it is
ORDERED that the Secretary's motion for stay of proceedings is denied. It is further
ORDERED that Mr. Hackett's motion for leave to file a supplemental brief is granted and the
brief received on July 12, 2004, will be filed as of the date of this order. It is further
ORDERED that, not later than 14 days after the date of this order, the Secretary file, and serve
on Mr. Hackett, a response to the issues raised in Mr. Hackett's supplemental brief. It is further
ORDERED that, not later than 14 days after the filing of the Secretary's response, Mr. Hackett
may file, and serve on the Secretary, a reply. It is further
ORDERED that, not later than 28 days after the date of this order, any interested individual or
entity may file and serve on the other parties a brief, as amicus curiae, on the issues stated above.
It is further
ORDERED that, the Clerk of the Court set the matter for oral argument as soon as the business
of the Court permits.
DATED: November 3, 2004 PER CURIAM.