concurring:
I believe the appellant’s motion for a panel decision should be granted because the appellant has raised a matter of first impression that was not addressed in the single-judge order. I hope that the parties will address the implications, if any, for the prevailing-party issue of Jacobsen v. West, 12 Vet.App. 546, 547-48 (1999)(holding that Secretary’s position not substantially justified at administrative stage where Secretary had conceded at merits stage that Board failed to follow established law, even though Court had not so found at merits stage).