Alesse v. Nicholson

216 F. App'x 976

Opinion

LOURIE, Circuit Judge.

ORDER

The Secretary of Veterans Affairs moves to waive the requirements of Fed. Cir. R. 27(f) and to remand this appeal to the United States Court of Appeals for Veterans Claims. Hildagarde E. Alesse opposes in part.

The Secretary argues that this court should remand so that the Court of Appeals for Veterans Claims may consider the applicability of 38 U.S.C. § 5101(b)(1) and 38 C.F.R. § 3.156(c)(3) to Alesse’s claim for an earlier effective date. Alesse argues that, based upon the Secretary’s arguments and her arguments, the court should summarily reverse the decision of the Court of Appeals for Veterans Claims.

Both parties indicate that the statute may be relevant, although it was not raised before or expressly considered by the Court of Appeals for Veterans Claims. The regulation may also be relevant, based upon the Secretary’s arguments. We deem the better course is to allow the Court of Appeals for Veterans Claims to address the issues in the first instance.

Accordingly,

IT IS ORDERED THAT:

(1) The motion to waive the requirements of Fed. Cir. R. 27(f) is granted.

(2) The motion to remand is granted.