Cotant v. Principi

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 00-2382
MICHAEL D. COTANT , APPELLANT ,
V.
ANTHONY J. PRINCIPI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FARLEY, IVERS, and STEINBERG, Judges.
ORDER
The appellant, through counsel, seeks review of an August 21, 2000, decision of the Board
of Veterans' Appeals (Board) that denied the appellant's claim for Department of Veterans Affairs
(VA) service connection, based on a theory of aggravation of a preexisting injury or disease, for
degenerative joint disease of the right hip. On January 11, 2002, the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) issued an opinion in Davis (John F.) v. Principi, 276 F.3d 1341(Fed. Cir. 2002). In that opinion, the Federal Circuit held that 38 U.S.C. § 1153 (which requires that
there be an increase in disability from such a preexisting injury or disease during service and existing
at discharge in order for the presumption of aggravation to attach) was applicable in a case where
the preexisting condition was not noted at entry, as provided for in 38 U.S.C. § 1111, but had been
found by the Board based on clear and unmistakable evidence rebutting the presumption of sound
condition established by section 1111. Davis (John F.), 276 F.3d at 1343-44. The Court notes that
the appellant in both his principal and reply brief in the instant case, and the Secretary in his brief,
presents arguments as to whether the Board properly applied section 1153 to the appellant's appeal.
Because the Federal Circuit's opinion in Davis may be applicable to this Court's review of the Board
decision in this case, see Brewer v. West, 11 Vet.App. 228, 233-34 (1998) (holding that judicial
decisions are generally retroactive), the Court requires further briefing from the parties addressing
the relevance and impact, if any, of Davis regarding the instant appeal. On consideration of the
foregoing, it is
ORDERED that, not later than 30 days after the date of this order, the appellant file, and
serve on the Secretary, a supplemental brief addressing the impact, if any, of Davis, supra, on the
appellant's appeal. It is further
ORDERED that, not later than 30 days after service of the appellant's supplemental brief, the
Secretary file, and serve on the appellant, a supplemental brief in response. It is further
ORDERED that, not later than 15 days after service of the Secretary's supplemental brief, the
appellant may file a reply thereto.
DATED: February 22, 2002 PER CURIAM.
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