           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           N O . 97-2178

                                   D ORIS M ARSO , A PPELLANT ,

                                                V.


                                     A NTHONY J. P RINCIPI,
                          S ECRETARY OF V ETERANS A FFAIRS, A PPELLEE.


                   Before HOLDAWAY, and IVERS, and GREENE, Judges.

                                           ORDER

        On December 23, 1999, the Court affirmed an August 15, 1997, decision of the Board
of Veterans' Appeal (Board) which determined that the veteran's heart disease was not incurred
in service and that a service-connected disability did not cause or substantially or materially
contribute to the veteran's death. The appellant, the veteran's widow, abandoned those issues
on appeal, but instead contended that the Board erred by failing to consider whether she was
entitled to dependency and indemnity compensation (DIC) benefits pursuant to 38 U.S.C. §
1318(b)(1). In its decision, the Court determined that the Board had not committed error when
it did not consider the appellant's eligibility for DIC benefits on the basis of section 1318(b)(1).


         The appellant, through counsel, filed an appeal of the decision to the U.S. Court of
Appeals for the Federal Circuit (Federal Circuit). On August 17, 2001, the Federal Circuit
remanded the case in light of Nat'l Org. of Veterans' Advocates, Inc. (NOVA) v. Sec'y of Veterans
Affairs, 260 F.3d 1365 (Fed. Cir. 2001). Pursuant to the Federal Circuit's decision in NOVA, the
Secretary was required to conduct expedited rulemaking to resolve what that court found was an
inconsistency in VA's interpretation of "virtually identical statutes" (38 U.S.C. §§ 1318 and
1311(a)(2)), through the two implementing regulations for those statutes (38 C.F.R. §§ 3.22 and
20.1106) . Id. at 1379. By way of update, the Court notes that the Secretary, on December 21, 2001,
proposed rules that would remove the inconsistency.

       Upon consideration of the foregoing, it

    ORDERED that the Board's August 15, 1997, decision is VACATED and that matter is
REMANDED to the Board for readjudication consistent with the Federal Circuit opinion.


DATED:         January 23, 2002                      PER CURIAM.
