Clay v. Principi , 2002 U.S. Vet. App. LEXIS 819 ( 2002 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 01-482
KENNETH R. CLAY , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before IVERS, STEINBERG, and GREENE, Judges.
ORDER
The appellant, through counsel, seeks review of a January 12, 2001, Board of Veterans'
Appeals (Board) decision that denied his claim to reopen his previously and finally disallowed claim
for Department of Veterans Affairs (VA) service connection for injuries to his back and knees,
because the Board found that new and material evidence had not been presented regarding that claim.
The appellant has filed a brief, in which he argues, inter alia, that the VA regulations issued to
implement the provisions of the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (VCAA), are applicable to his claim to reopen insofar as those
regulations require that VA obtain a medical opinion regarding whether there is a nexus between his
in-service injury and his present disabilities. 66 Fed. Reg. 45,620, 45,630-32 (Aug. 29, 2001).
Brief (Br.) at 5. The Secretary has filed a brief, in which he (1) argues that the Court should affirm
the Board decision on the merits and (2) counters the appellant's duty-to-assist argument by
contending that the duty is not triggered unless the claim is reopened. Br. at 14.
On July 16, 2002, a similar case was submitted to a panel of the Court in Pelegrini v.
Principi, No. 01-944 (Vet. App. filed May 31, 2001). On August 22, 2002, the Court issued a
briefing order in that case regarding the applicability to claims to reopen of the duty-to-assist
provisions in the VCAA and in the August 29, 2001, VA regulations. Pelegrini, 16 Vet.App. 259,
260-61 (2002) (per curiam order). The issues in the two cases regarding (1) application of the duty
to assist under section 5103A to claims to reopen, (2) application of amended regulation
§ 3.159(c)(4), see 66 Fed. Reg. at 45,631, to claims to reopen, and (3) the effect, if any, of the
recently decided Quartuccio v. Principi, 16 Vet.App. 187 (2002), are substantially similar, and the
disposition of Pelegrini could materially affect the instant proceedings. Therefore, in the interest
of judicial economy, the Court will stay further proceedings in the instant case pending the
disposition of Pelegrini.
Upon consideration of the foregoing, it is
ORDERED, sua sponte, that this matter is stayed pending the outcome of Pelegrini, supra,
or further order of the Court.
DATED: October 30, 2002 PER CURIAM.
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