The opinion
NEBEKER, Chief Judge,
concurring:
I concur in the denial of en banc review. I add that the Secretary is wrong when he argues that “the panel asserted that the Court had not been made aware of the precedent Gregory v. Brown, 5 Vet.App. 108 (1993) which was issued while the instant case was pending before the Court....” The Court, of course, was clearly aware of its own Gregory decision and what the panel opinion criticizes the Secretary for is his failure “to promptly advise the Clerk [of the Court] of the change in law brought about by that case and, its relation to the underlying appeal here, as it was clearly a pertinent and significant au-thorit[y].” (Emphasis added.) What the Secretary appears to misunderstand is that his duty in light of the Gregory decision was to change his litigation position in response to that precedent, as, indeed, he had done in Stillwell v. Brown, 46 F.3d 1111, 1113 (Fed.Cir.1995).