Benjamin F. Kent v. R. James Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 04-181

BENJAMIN F. KENT , APPELLANT ,

V.

R. JAMES NICHOLSON ,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided March 31, 2006 )

Sean A. Ravin, of Washington, D.C., was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Richard

Mayerick, Deputy Assistant General Counsel; and Barbara J. Finsness, all of Washington, D.C.,

were on the brief for the appellee.

Before HAGEL, LANCE, and SCHOELEN, Judges.

SCHOELEN, Judge: The appellant, Benjamin F. Kent, through counsel, appeals an

October 8, 2003, Board of Veterans' Appeals (Board or BVA) decision that determined that he had

not presented new and material evidence to reopen his previously and finally denied claims for

service connection for psychogenic gastrointestinal reaction and psoriasis. Record (R.) at 1-13. The

appellant and the Secretary each filed a brief. This appeal is timely, and the Court has jurisdiction

over the case pursuant to 38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court will

vacate the October 8, 2003, Board decision and remand the matters for further proceedings consistent

with this opinion.

I. BACKGROUND

The appellant served on active duty in the U.S. Marine Corps from September 16, 1950, to

January 20, 1951, when he received a medical discharge as a result of a disability. R. at 17. The

report from his entrance medical examination reflects no mental or physical abnormalities. Id. On

October 30, 1950, he visited sick bay with complaints of stomach pain and vomiting of blood.

R. at 21. At that time, he reported that three years before he entered service he had had an "ulcer"

with pain, nausea, and vomiting of blood. R at 21. He stated that he was treated by his

midwife-grandmother. R. at 22. He reported that he had done well on a diet of soft food, and had

experienced no further symptoms until four days prior to his visit to sick bay. R. at 21. He was

diagnosed with acute gastroenteritis, and he was transferred to a naval hospital for treatment. Id.

After a series of medical tests were performed, the appellant was diagnosed with "hematemesis,

cause unknown." R. at 23-24. In December 1950, after a second hospitalization for the same

symptoms, the medical diagnosis was changed to "psychogenic gastrointestinal reaction."

R. at 25, 33. The appellant was also diagnosed as having "symmetrical acne" on his face and back.

R. at 28. In January 1951, the Board of Medical Survey determined that the appellant was not

medically fit for duty because of his psychogenic gastrointestinal reaction, and that the disability

preexisted service and was not aggravated by service. R. at 33.

In February 1951, the appellant filed a claim for disability compensation for an "ulcerated

stomach." R. at 36-39. On April 24, 1951, a VA regional office (RO) denied the claim (as a claim

for psychogenic gastrointestinal reaction). R. at 44. The RO gave the following reasons for its

denial:

Five weeks after induction into service, claimant was examined and

found to have psychogenic gastro-intestinal reaction. In view of the

short term of service, the nature and extent of the condition when

discovered, the failure of the records to reflect permanent increase in

severity due to injury, disease, pathological changes, emotional stress,

strain, or other adverse influences peculiar to service [sic] is rebutted

by clear and unmistakable evidence of record, including established

and accepted medical principles.

R. at 44. The appellant did not appeal that decision. In 1958, he attempted unsuccessfully to reopen

his claim. R. at 52-60.

In May 1996, he filed a claim for disability compensation for malaria, psoriasis, ulcers, and

anxiety. R. at 62. Postservice medical treatment records, obtained in connection with the claim,

revealed that the appellant had been treated for skin conditions that were diagnosed, inter alia, as

seborrheic lesions, psoriasis, actinic keratosis, and acne rosacea. R. at 67, 326, 397-99, 404-05, 412,

415-18, 424-28, 430. In a July 1996 decision, the RO denied entitlement to service connection for

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psoriasis on the basis that the appellant's service medical records were negative for any treatment,

findings, or diagnosis of psoriasis. R. at 68-69. The appellant's claim for service connection for

ulcers was denied because the RO determined that the service medical records (SMRs) were negative

for "any definite diagnosis of a chronic gastrointestinal disability during service or within the

one[-]year presumptive period." R. at 68. The RO also determined that the appellant had not

submitted new and material evidence to reopen his claim for service connection for psychogenic

gastrointestinal reaction. R. at 67. In December 1997, the appellant filed a Notice of Disagreement

that was untimely because it was not filed within the one-year appeal period. R. at 74.

The appellant attempted to reopen the service-connection claims for psoriasis and

psychogenic gastrointestinal reaction in July 1999. R. at 95. In support of his claims, he submitted

copies of his service medical records. R. at 97. On August 4, 1999, the RO determined that no new

and material evidence had been submitted. Id.

On March 16, 2000, the appellant submitted evidence from private physicians indicating that

he was being treated for gastroesophageal reflux disease and psoriasis. R. at 104-08. In April 2000,

the RO determined that the appellant had not submitted new and material evidence to reopen his

claims for service connection for psoriasis and psychogenic gastrointestinal reaction. R. at 110-12.

The appellant appealed that decision to the Board. R. at 126. In April 2001, the RO sent the

appellant a letter to advise him of the Veterans Claims Assistance Act. R. at 143. The April 2001

letter advised the appellant that in order to "establish entitlement for service[-]connected

compensation benefits," the evidence must show an injury or disease that began in or was made

worse during military service, a current physical or mental disability, and a relationship between the

appellant's current medical disability and an injury, disease, or event in service. Id. The April 2001

letter did not advise the appellant that he needed new and material evidence to reopen his claims.

On October 8, 2003, in the decision here on appeal, the Board concluded that the appellant had not

submitted new and material evidence to reopen his claims for service connection for psoriasis and

gastrointestinal psychogenic reaction. R. at 1-13.

In his brief, the appellant asserts that the Board did not provide an adequate statement of

reasons or bases for its decision because it failed to consider and discuss whether recent changes in

the interpretation of law pertaining to the presumption of soundness entitled him to a de novo

readjudication of his claim for service connection for psychogenic gastrointestinal reaction.

Appellant's Brief (Br.) at 6-10. Alternatively, he argues that changes in the interpretation of the law

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surrounding the presumption of soundness constituted new and material evidence to reopen his claim

for psychogenic gastrointestinal reaction. Id. at 10-11. He also argues that VA violated

38 U.S.C. § 5103(a) when it failed to give him adequate notice of the information or evidence

necessary to substantiate his claims. Id. at 11-14. The appellant asks the Court to vacate the Board

decision and remand the matter. Id. at 14.

In his brief, the Secretary argues that there was a plausible basis for the Board's finding that

there was no new and material evidence to reopen the appellant's service-connection claims, that the

Board provided an adequate statement of reasons or bases for its decision, and that VA complied

with its duty to notify pursuant to 38 U.S.C. § 5103(a). Secretary's Brief (Br.) at 8-15. He asks that

the Court affirm the Board's decision. Id. at 21-22.

II. ANALYSIS

A. Readjudication of a Final Claim Pursuant to 38 U.S.C. § 5110(g)

Once a claim has been finally decided and disallowed, it may not be reopened in the absence

of new and material evidence. 38 U.S.C. §§ 5108; 7104(b)(1). The appellant, citing to

Spencer v. Brown, 4 Vet.App. 283 (1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), argues that because

of "changes in the interpretation of law" surrounding the presumption of sound condition came about

after the RO in April 1951 denied his claim for service connection for psychogenic gastrointestinal

reaction in 1951, "the Secretary is required to conduct a de novo review of the previously denied

claim" irrespective of whether the appellant has submitted new and material evidence to reopen his

claim. Appellant's Br. at 7.

In Spencer, the Court recognized that when there has been an intervening liberalization of

law that creates a new basis of entitlement to a benefit, an otherwise previously and finally denied

claim may be readjudicated de novo on the same factual basis as the previously denied claim.

Spencer, 4 Vet.App. at 288. The authority for such readjudication is 38 U.S.C. § 5110(g) and its

implementing regulation, 38 C.F.R § 3.114 (2005). Section 5110(g) provides that "where

compensation . . . is awarded or increased pursuant to any Act or administrative issue, the effective

date of such award shall be fixed in accordance with the facts found but shall not be earlier than the

effective date of the Act or administrative issue." This statutory provision presupposes the right to

a de novo adjudication of a previously and finally denied claim because of an intervening change in

law that creates a new basis of entitlement to a benefit. Spencer, 4 Vet.App. at 288.

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Harmonizing the provisions of section 5110(g) and the prohibition in section 7104(b) against

reopening a finally denied claim in the absence of new and material evidence, the Court in Spencer

found that when a "provision of law or regulation creates a new basis of entitlement to benefits, an

applicant's claim of entitlement under such law or regulation is a claim separate and distinct from

a claim previously and finally denied prior to the liberalizing law or regulation."

Spencer, 4 Vet.App. at 289. In such a case, there is no attempt to reopen the finally denied claim;

rather, a different claim is presented for adjudication. Id.

The appellant points to two "changes in the interpretation of law" that, he argues, triggered

de novo adjudication of his claim for service connection for psychogenic gastrointestinal reaction.

First, he argues that the Court's holding in Crowe v. Brown, 7 Vet.App. 238, 245 (1994), constitutes

a change in intervening law. The appellant's argument fails because Crowe does not represent a

change in law. Indeed, there has been no intervening change in law since his claim was denied in

1951. In Crowe, the Court held that the presumption of sound condition attaches to a disability

unless the condition is detected at the time of a veteran's entrance examination. The Court's holding

in Crowe is essentially a literal application of the plain meaning of the clear and unambiguous

statutory language, which has been in effect, without substantive change, for more than 60 years.

More specifically, since 1943, the express statutory language of section 1111 has provided that a

veteran is presumed to be in sound condition except as to preexisting conditions that are noted upon

entry into service. See 38 U.S.C. § 1111 ("[E]very veteran shall be taken to have been in sound

condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or

disorders noted at the time of the examination, acceptance, and enrollment . . . . "); see also

Pub. L. No. 78-144 § 9(b), 57 Stat. 554-560 (1943) (codified as 38 U.S.C. app. ch. 12);

Wagner v. Principi, 370 F.3d 1089, 1094-96 (Fed. Cir. 2004) (discussing legislative history of 38

U.S.C. § 1111); Jordan v. Principi, 17 Vet.App. 261, 276-77 (2003) (Steinberg, J., separate views)

(discussing same), aff'd sub. nom Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005);

Cotant v. Principi, 17 Vet.App. 116, 123-26 (2003) (discussing same). In short, the law as it

currently exists was in effect at the time that the RO denied the appellant's service-connection claim

in 1951.

Furthermore, there is no indication that when the RO denied the appellant's claim in 1951

it did so on the basis that he was not entitled to the presumption of soundness. Indeed, it appears that

the RO concluded that the presumption of soundness was rebutted by clear and unmistakable

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evidence that the appellant's psychogenic gastrointestinal reaction preexisted service and was not

aggravated by service.

The second alleged intervening change in law is the 2004 holding of the United States Court

of Appeals for the Federal Circuit (Federal Circuit) in Wagner, supra. In Wagner, the Federal

Circuit held that to overcome the presumption of soundness for wartime veterans under

38 U.S.C. § 1111, VA must show clear and unmistakable evidence of both a preexisting condition

and a lack of in-service aggravation. Wagner, supra; see also VA Gen. Coun. Prec. 3-2003

(July 16, 2003). Prior to the Court's holding in Wagner, VA was required to show only clear and

unmistakable evidence of a preexisting condition to overcome the presumption of soundness.

See Crowe, 7 Vet.App at 245; 38 C.F.R. § 3.304(b)(2004); cf. Presumption of Sound

Condition: Aggravation of a Disability by Active Service, 70 Fed. Reg. 23,027, 23,029 (May 4,

2005) (amending § 3.304(b) to conform to Wagner holding). Thus, the effect of the Federal Circuit's

decision in Wagner was to increase VA's burden to rebut the presumption of soundness for wartime

veterans.

It is clear that the Federal Circuit's holding in Wagner represents a change in interpretation

of law. However, the Court does not agree that this constitutes a liberalizing change in law

warranting a de novo adjudication of the appellant's claim for service connection for a psychogenic

gastrointestinal disorder. A change in law that is merely procedural does not create new rights to VA

benefits. See Spencer, 4 Vet.App. at 289. In Routen v. West, 142 F.3d 1434, 1439-41

(Fed. Cir. 1988), the Federal Circuit held that a change in the law that raised the evidentiary burden

required of VA to rebut the statutory presumption of aggravation available to peacetime veterans

from "competent" evidence to "clear and unmistakable" evidence was procedural, and not

substantive in nature. Id. The Federal Circuit stated that the change in the evidentiary standard did

not create a new cause of action since no new basis of entitlement to the underlying VA benefit was

created. Id. at 1442.

Here, as in Routen, the change in law brought about by the Federal Circuit's opinion in

Wagner is procedural, and not substantive, in nature. Hence, the Court concludes that the Federal

Circuit's decision in Wagner did not provide a new basis for establishing entitlement to benefits that

would warrant adjudicating de novo the appellant's claim for service connection for psychogenic

gastrointestinal disorder. In light of this holding, any failure by the Board to discuss the change in

law surrounding the presumption of soundness is nonprejudicial because the Court can still carry out

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a proper review. See 38 U.S.C. § 7261(b); Mayfield v. Nicholson, 19 Vet.App. 103, 129 (2005)

(holding that the Court's review was "not hindered by any reasons-or-bases deficiency in the Board

decision, and a remand would be of no benefit to [the appellant] and would therefore be pointless"),

appeal docketed, No. 05-7157 (Fed. Cir. June 14, 2005); Soyini v. Derwinski, 1 Vet.App. 540, 546

(1991) (holding that "strict adherence" to reasons-or-bases requirement where evidence was

"overwhelmingly" against the claim would unnecessarily impose additional burdens on the BVA

with no benefit flowing to the veteran); see also Valiao v. Principi, 17 Vet.App. 229, 232 (2003)

(holding that "[w]here the facts averred by a claimant cannot conceivably result in any disposition

of the appeal other than affirmance of the Board decision, the case should not be remanded for

development that could not possibly change the outcome of the decision").

B. Misapplication of Law as New and Material Evidence to Reopen a Claim

The appellant does not take issue with the Board's determination that the evidence submitted

since the claim was last disallowed was not new and material evidence. Instead, he argues, in the

alternative, that the changes in interpretation of law surrounding the presumption of soundness

constitute new and material evidence to reopen his claim for service connection for psychogenic

gastrointestinal reaction. Appellant's Br. at 7. The appellant's argument is without merit. The

Federal Circuit held unequivocally in Routen that "misapplication of, or failure to apply, a statutory

or regulatory burden-shifting presumption . . . does not constitute 'new and material evidence' for the

purpose of reopening a claim under 38 U.S.C. § 5108." Routen, 142 F.3d at 1440. Although

presumptions are rules of law for handling evidence, they are not themselves considered evidence.

Id. Accordingly, a change that raises the government's evidentiary burden to rebut the presumption

of sound condition may not constitute new and material evidence to reopen a finally decided claim.

C. VA Compliance with Notice Requirements

The appellant argues that VA failed to fulfill its duty to notify under 38 U.S.C. § 5103(a).

As amended by the Veterans Claims Assistance Act (VCAA), 38 U.S.C. § 5103(a) requires that VA

inform the claimant of the information and evidence not of record (1) that is necessary to substantiate

the claim; (2) that VA will seek to obtain; and (3) that the claimant is expected to provide.

38 U.S.C. § 5103(a). In addition, 38 C.F.R. § 3.159(b)(1) (2005) imposes a fourth requirement that

VA "request that the claimant provide any evidence in the claimant's possession that pertains to the

claim." See Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004). These are referred to as the "four

VCAA notice requirements." See Mayfield, 19 Vet.App. at 122. The provisions of the VCAA apply

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to claims to reopen. See Quartuccio v. Principi, 16 Vet.App. 183, 186 (2002). Failure to comply

with any of the four VCAA requirements may constitute remandable error.

See Pelegrini, 18 Vet.App. at 121-22; Quartuccio, 16 Vet.App. at 188. In addition, a Board failure

to provide an adequate statement of reasons or bases as to VCAA compliance may also constitute

remandable error. See 38 U.S.C. § 7104(a), (d)(1); Charles v. Principi, 16 Vet.App. 370, 374

(2002).

The appellant bears the burden of identifying, with specificity, how the notice document(s)

are noncompliant with the VCAA notice requirements. See Mayfield, 19 Vet.App. at 111. When

reviewing a VA notice letter, the letter is read as a whole for compliance with the VCAA.

Mayfield, 19 Vet.App. at 124. In the event that the Court finds error, it must "take due account of

the rule of prejudicial error." 38 U.S.C. § 7261(b)(2); see Mayfield, 19 Vet.App. at 112-21

(explaining how the Court "take[s] due account of the rule of prejudicial error" both in general, and

in the context of VCAA notice).

Establishing service connection generally requires medical evidence of a current disability;

medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease

or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the

present disease or injury. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,

78 F.3d 604 (Fed. Cir. 1996). Upon receipt of an application for a service-connection claim, section

5103(a) and § 3.159(b) require VA to review the information and the evidence presented with the

claim and to provide the claimant with notice of what information and evidence not previously

provided, if any, will assist in substantiating or is necessary to substantiate each of the five elements

of the claim, including notice of what is required to establish service connection and that a disability

rating and an effective date for the award of benefits will be assigned if service connection is

awarded. Dingess v. Nicholdson, __Vet.App.__, No.01-1917 (Mar. 3, 2006); see also

Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (stating that a service-connection claim that

provides for disability-compensation benefits consists of the following five elements: "(1) Veteran

status; (2) existence of a disability; (3) a connection between the veteran's service and the disability;

(4) degree of disability; and (5) effective date of the disability"); Fenderson v. West, 12 Vet.App.

119, 125 (1999) (stating same).

In this case, we deal with VA's obligation in the context of claims to reopen previously and

finally disallowed claims. In order to successfully reopen a previously and finally disallowed claim,

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the law requires the presentation of a special type of evidence–evidence that is both new and

material. The terms "new" and "material" have specific, technical meanings that are not commonly

known to VA claimants. Because these requirements define particular types of evidence, when

providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform

claimants seeking to reopen a previously and finally disallowed claim of the unique character of

evidence that must be presented. This notice obligation does not modify the requirement that VA

must provide a claimant notice of what is required to substantiate each element of a

service-connection claim. In other words, VA must notify a claimant of the evidence and

information that is necessary to reopen the claim and VA must notify the claimant of the evidence

and information that is necessary to establish his entitlement to the underlying claim for the benefit

sought by the claimant.

VA's obligation to provide a claimant with notice of what constitutes new and material

evidence to reopen a service-connection claim may be affected by the evidence that was of record

at the time that the prior claim was finally denied. The new-and-material-evidence regulation that

was in effect at the time of the April 2000 RO decision defined "new" to mean evidence "not

previously submitted to agency decisionmakers . . . [that] is neither cumulative nor redundant."

38 C.F.R. § 3.156(a) (1999). "Material evidence" was defined to mean evidence that "bears directly

and substantially upon the specific matter under consideration" and "is so significant that it must be

considered in order to fairly decide the merits of the claim." Id. Generally, a claimant is seeking to

reopen a finally denied claim for service connection because there is either no evidence on one or

more of the three Caluza elements to establish service connection or insufficient evidence on one

or more of these elements. Therefore, material evidence would be (1) evidence on an element where

the claimant initially failed to submit any competent evidence; (2) evidence on an element where the

previously submitted evidence was found to be insufficient; (3) evidence on an element where the

appellant did not have to submit evidence until a decision of the Secretary determined that an

evidentiary presumption had been rebutted; or some combination or variation of the above three

situations.

The legislative interest underlying the VCAA notice requirement is the intent of Congress

to provide claimants a meaningful opportunity to participate in the adjudication of claims.

See Mayfield, 19 Vet.App. at 120-21 (stating that section 5103a notice requirement "assumes a

fundamental role in furthering an interest that goes to the very essence of the nonadversarial,

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pro-claimant nature of the VA adjudication system . . . that is, to assist claimants in the development

of their claims); Quartuccio, 16 Vet.App. at 186-87 (noting that the intent of Congress in enacting

the VCAA was to expand the Secretary's duty to notify). To satisfy this intent, in the context of a

claim to reopen a previously denied claim for service connection, the VCAA requires the Secretary

to look at the bases for the denial in the prior decision and to respond with a notice letter that

describes what evidence would be necessary to substantiate that element or elements required to

establish service connection that were found insufficient in the previous denial. Therefore, the

question of what constitutes material evidence to reopen a claim for service connection depends on

the basis on which the prior claim was denied. See Evans v. Brown, 9 Vet.App. 273, 283 (1996)

(holding evidence is material if it is relevant to and probative of an issue that was a specified basis

for the last final disallowance), overruled, in part, on other grounds by Hodge v. West, 155 F.3d

1356 (Fed. Cir. 1998); Anglin v. West, 203 F.3d 1343, 1347 (Fed. Cir. 2000) (stating that Hodge left

intact the requirement that the evidence must be relevant to and probative of an issue that was a

specified basis for the last final disallowance). The Secretary can determine the basis for the denial

in the prior decision from the face of that decision.

The failure to provide notice of what constitutes material evidence would generally be the

type of error that has the natural effect of producing prejudice because it would constitute a failure

to provide a claimant notice of a key element of what it takes to substantiate a claim to reopen.

See Mayfield, 19 Vet.App. at 122. Without such notice, a claimant effectively would be deprived of

an opportunity to participate in the adjudication process because he would not know what evidence

was needed to reopen his claim.

While the failure to provide a claimant notice of what constitutes material evidence will

almost always be prejudicial, this is not necessarily the case where VA fails to inform the claimant

of the necessity to submit new evidence. When a claim for service connection was denied because

the evidence (as to one element of the claim) was insufficient, then it is incumbent upon the

Secretary to explain that resubmitting the previously submitted evidence will not constitute "new"

evidence that will result in reopening the claim. Thus, the Secretary's failure to notify the claimant

of the need to submit "new" evidence would generally be prejudicial because it would defeat the

fundamental purpose of the notice by failing to inform the claimant of critical information on an

essential requirement needed to reopen the claim. On the other hand, if the evidence needed to

reopen a claim pertains to an element of the claim for which no evidence has been previously

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submitted, then any evidence pertaining to that element will, per se, be new. Thus, under these

circumstances, if VA provides a claimant with notice of what constitutes material evidence but fails

to inform him of what would constitute new evidence, the failure to inform the claimant of the "new"

requirement is not prejudicial because the notice on materiality effectively provides the essential

information to the claimant regarding what is needed to substantiate the claim. Therefore, the failure

to tell a claimant who has not submitted any evidence on a Caluza-service-connection element that

the evidence must be new would not defeat the fundamental purpose of the notice and would not

affect the essential fairness of the proceedings. See Mayfield, 19 Vet.App. at 115.

Here, the Board concluded that the appellant was given adequate notice under the VCAA

with respect to his attempts to reopen both of his service-connection claims. R. at 4-5. The BVA

identified three documents that it concluded provided the appellant with adequate notice under the

VCAA: 1) An April 2001 letter from the RO to the veteran; 2) a January 2003 Statement of the Case

(SOC); and 3) an April 2003 Supplemental Statement of the Case (SSOC). R. at 4-5. For the

reasons discussed below, the Court finds that the Secretary did not fulfill his notice obligations with

respect to informing the appellant of the evidence and information that was needed to substantiate

his attempts to reopen his claims for service connection for psychogenic gastrointestinal disorder and

psoriasis. Because the Court finds that the Secretary failed to provide the appellant adequate notice

of what evidence was needed to reopen his claims, the Court need not decide whether the Secretary

fulfilled his notice obligation with respect to informing the appellant of the information and evidence

that was needed to substantiate his entitlement to the underlying compensation benefits.

1. Adequacy of VCAA Notice With Regard to Appellant's Attempt to Reopen His Claim for

Service Connection for a Psychogenic Disorder

With regard to the appellant's application to reopen his claim for service connection for

psychogenic gastrointestinal disorder, the appellant argues that the notice provided to him failed to

satisfy the first, second, and third VCAA requirements (regarding the information and evidence

necessary to substantiate the claim and who would be responsible for obtaining the evidence).

Appellant's Br. at 11-13. None of the documents identified by the BVA satisfied the first

requirement of the VCAA. The April 2001 letter, which purported to advise the appellant of the

evidence or information that he needed to substantiate his claim to reopen, did not inform him that

he needed new and material evidence to reopen his claim for service connection for his psychogenic

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disorder. Moreover, the April 2001 letter did not inform the appellant what would constitute new

and material evidence to reopen the psychogenic disorder claim.

a. Notice on Material Evidence

The April 2001 letter does not inform the appellant what would constitute "material"

evidence to reopen the psychogenic disorder claim. Under 38 U.S.C. § 5103(a), VA was required

to notify the appellant of what constituted "material" evidence in the context of his particular claim

to reopen. The appellant's underlying claim had been denied previously on the basis that the

appellant's psychogenic disorder was not incurred in service. The RO concluded that the disorder

preexisted service and was not aggravated by service. In order for the appellant to substantiate the

claim to reopen with evidence that is material, he is required to submit evidence that indicates that

the psychogenic disorder either (1) did not preexist service and was incurred therein or (2) was

aggravated by service. Consequently, in order to satisfy its obligation under the VCAA to notify the

appellant of any "information[] and . . . evidence, not previously provided to the Secretary that is

necessary to substantiate the claim" to reopen, the appellant was entitled to notice that he needed

evidence that would reflect either that his psychogenic disorder (1) did not preexist service and was

incurred therein or (2) was aggravated by service. 38 U.S.C. § 5103(a). The April 2001 letter did

not inform the appellant that to substantiate his claim to reopen he needed evidence that indicated

that his psychogenic disorder did not preexist service and was incurred therein.

Like the April 2001 letter, neither the January 2003 SOC (R. at 474-85), nor the April 2003

SSOC (R. at 491-93), informed the appellant of the information or evidence needed to substantiate

the claim to reopen. Both the SOC and SSOC discussed the regulatory definition of "new and

material evidence," as amended in 2001. R. at 479-80, 491-92. See Duty to Assist, 66 Fed. Reg.

45,620, 45,630 (Aug. 29, 2001) (codified at 38 C.F.R. § 3.156(a)). However, as the BVA correctly

noted, this version of the regulation did not apply to the appellant's claim to reopen since the claim

was filed before August 21, 2000. R. at 7. The Court notes that the definition of "new and material

evidence" was changed by the 2001 amendments. See Paralyzed Veterans of Am. v. Sec'y of

Veterans Affairs, 345 F.3d 1334, 1350-51 (Fed. Cir. 2003) (noting that the new regulation differs

from the old regulation in defining "new evidence" as "existing" evidence and defining "material

evidence" as evidence that "must raise a reasonable possibility of substantiating the claim"). In

addition to discussing the wrong regulatory definition of "new and material evidence," the content

of the notice provided by the SOC and SSOC was otherwise insufficient. Both documents informed

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the appellant that he had not submitted material evidence to reopen his psychogenic disorder claim

because he had not submitted evidence that his condition was aggravated in service. R. at 481-82,

492. Like the notice provided in the April 2001 letter, the notice provided in the SOC and SSOC

was too narrow in scope. Neither the SOC nor the SSOC informed the appellant that he could

substantiate his claim to reopen with information or evidence that indicated that his psychogenic

disorder did not preexist service and was incurred therein.

b. Notice on New Evidence

In addition to notifying the appellant of what would constitute material evidence, VA was

also obligated to notify him what would constitute new evidence to reopen the psychogenic

gastrointestinal disorder claim. In this regard, the April 2001 letter is inadequate. The evidence at

the time VA last denied the claim included the appellant's SMRs, which revealed that he was treated

for a condition that was ultimately diagnosed as psychogenic gastrointestinal disorder (R. at 19-33).

Because this evidence was relevant as to whether the appellant's psychogenic disorder was either

incurred or aggravated in service, VA should have informed the appellant that he needed to submit

new evidence regarding his psychogenic disorder claim. However, nowhere in the letter is the

appellant informed that evidence would be considered new only if it had not been submitted

previously to VA and was neither "cumulative nor redundant" of evidence already in the record.

38 C.F.R. § 3.156(a).

The SOC and SSOC informed the appellant that new evidence was required to reopen his

claim; however, these documents used the definition of "new evidence" from the 2001 amendments

to § 3.156. As noted above, the amended version of § 3.156(a) changed the definition of "new and

material evidence." The SOC and SSOC provided the appellant some notice that evidence submitted

must meet the requirement to be new. Nonetheless, the SOC and the SSOC contained another

significant flaw that compounded this error and prevented the appellant from effectively and fully

participating in the adjudication of his claim. See Mayfield, supra. In the latter part of these

documents, the appellant was informed that the evidence he had submitted to reopen his claim

satisfied the "new evidence" requirement. R. at 481-82, 483-84, 491-92. Thus, these documents

contained information that was incomplete and confusing, thereby rendering the VCAA notice

inadequate. See Mayfield, 19 Vet.App. at 125 (stating that confusing notice about what information

and evidence had not been previously provided may amount to a notice deficiency);

Pelea v. Nicholson, 19 Vet.App. 296 (2005) (noting that incomplete or affirmatively misleading

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correspondence might discourage a reasonable person from otherwise submitting evidence to

substantiate a claim), appeal dismissed, No.06-7019, 2005 U.S. App. LEXIS 28138 (Federal Circuit

Dec. 1, 2005).

c. Prejudicial Error

Having found a failure to fulfill VA's section 5103(a) notice obligations, the Court must take

into account the rule of prejudicial error. Error is prejudicial when it affects a substantial right that

the statutory or regulatory provision involved was designed to protect so that the error affects "the

essential fairness" of the adjudication. Mayfield, 19 Vet.App. at 115. Once an appellant

demonstrates a VCAA notice error, he has the burden of going forward with a plausible showing of

how the essential fairness of the adjudication was affected by the error. Id. at 119. If the appellant

makes such a showing, the burden shifts to the Secretary to demonstrate that the error was clearly

nonprejudicial, i.e., that the error did not affect the essential fairness of the adjudication. Id. at 120.

Even though the appellant has not asserted specifically how he was prejudiced by the VCAA error,

the "natural effect" of VA's failure to give notice as to the first requirement produced prejudice

because it precluded the appellant from participating effectively in the processing of his claim,

"thereby substantially defeat[ing] the very purpose of section 5103(a) notice."

Mayfield, 19 Vet.App. at 122. Accordingly, the burden shifted to the Secretary to demonstrate that

there was no clear prejudice. The Secretary argues in his brief that any notice errors were not

prejudicial because "the outcome was not affected by VA's alleged failure to comply with the

38 U.S.C. §5103(a) notice requirements." Secretary's Br. at 17. This argument was specifically

rejected by the Court in Mayfield. See Mayfield, 19 Vet.App. at 115. The Secretary has not filed a

supplemental brief, pursuant to In re: 38 U.S.C. § 7261(b)(2) and Mayfield v. Nicholson, 19 Vet.App.

103 (2005), Misc. No. 3-05 (June 2, 2005) (en banc order) [hereinafter Mayfield order], which

allowed him an opportunity to meet his burden of establishing that there was clearly not prejudice

to the appellant in this case. Because the Secretary failed to meet this burden, the Court finds that

the notice error was prejudicial to the appellant. The Court's conclusion that the Secretary failed to

satisfy the first VCAA requirement necessarily subsumes a conclusion that the Secretary also failed

to satisfy the second and third VCAA elements (that is who would be responsible for seeking to

obtain the information and evidence required by the first notice requirement).

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2. Adequacy of VCAA Notice with Regard to Appellant's Attempt to Reopen His Claim for

Service Connection for Psoriasis

With regard to the appellant's application to reopen his claim for service connection for

psoriasis, he argues that the notice provided to him was inadequate under the first, second, and third

VCAA requirements. The appellant's service-connection claim for psoriasis was denied previously

on two bases. First, the regional office determined that "[t]here is no record of psoriasis showing

a chronic disability subject to service connection." R. at 68. In other words, the RO concluded that

the appellant had not established service connection under 38 C.F.R. § 3.303(b) (2005). This

regulation provides two alternative methods of establishing service connection–chronicity and

continuity of symptomatology. First, chronicity is established if the appellant can demonstrate (1)

the existence of a chronic disease in service and (2) present manifestations of the same disease.

See Savage v. Gober, 10 Vet.App. 488, 495-97 (1997). Alternatively, continuity of symptomatology

may be established if the appellant can demonstrate (1) that a condition was "noted" during service;

(2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain

circumstances, lay evidence of a nexus between the present disability and the postservice

symptomatology. See 38 C.F.R. § 3.303(b); Savage,10 Vet.App. at 495.

The evidence of record at the time that the RO denied the appellant's claim in 1996 included

evidence that the appellant was treated on a single occasion for a skin condition diagnosed as

"symmetrical acne" on his face and back. Additionally, the record included postservice medical

evidence of treatment for psoriasis. The RO denied service connection under § 3.303(b) because it

concluded that the SMRs of "symmetrical acne" were insufficient to prove chronicity of psoriasis

in service and that there was insufficient medical evidence to establish a nexus between his current

condition and the postservice symptomatology. Essentially, when the RO denied the claim in 1996,

it did so on the basis that the appellant had not submitted sufficient evidence to satisfy § 3.303(b).

Thus, to reopen a claim for a chronic condition based on § 3.303(b), the appellant would need new

evidence, other than the evidence already of record, to demonstrate that his skin condition in service

was chronic and the same as his current skin condition, or the appellant would need additional

medical evidence to establish a nexus between his current disability and the postservice

symptomatology.

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In addition, the RO considered direct service connection and concluded that there was no

evidence that the appellant's current psoriasis was "caused by service." R. at 69. Thus, the RO

denied the claim for direct service connection because it concluded that the appellant had failed to

submit any nexus evidence linking his current condition to an event, disease, or injury in service.

To reopen the claim on a direct service connection basis, the appellant would need medical nexus

evidence, which he had not previously submitted to the RO. In light of the two different reasons for

denial of the claim and the two different bases for reopening the appellant's claim, to determine

whether the notice complied with the VCAA, we turn to the notice that VA provided the appellant

with regard to reopening his psoriasis claim.

a. Notice on Material Evidence

The April 2001 letter advised the appellant that in order to "establish entitlement for

service[-]connected compensation benefits," the evidence must show an injury or disease that began

in or was made worse during military service, a current physical or mental disability, and a

relationship between the appellant's current medical disability and an injury, disease, or event in

service. R. at 143. The letter further explained the importance of medical evidence and suggested

that the appellant could send records of the medical treatment he had received dating back to service,

lay statements documenting any observable symptoms that had been witnessed since his condition

had first been noticed, and medical opinion evidence establishing a relationship between the

appellant's current disability and service. R. at 144. Although the April 2001 letter does not use the

statutory language that such evidence would constitute material evidence to reopen the psoriasis

claim, the letter's discussion of the evidence required to reopen a claim was sufficiently broad so as

to encompass both bases upon which the appellant could reopen his claim. The letter conveyed to

the appellant the essence of what would be material evidence in the context of his claim to reopen.

See Mayfield, 19 Vet.App. at 126-27 (stating that "a complying [VCAA] notice need not necessarily

use the exact language of the regulation so long as that notice properly conveys to a claimant the

essence of a regulation").

b. Notice on New Evidence

However, the April 2001 letter did not provide adequate notice regarding what would

constitute new evidence to reopen the psoriasis claim. VA should have notified the appellant that

he needed to submit evidence that was neither "cumulative nor redundant" of the evidence that was

previously submitted. While the April 2001 letter indicated what evidence was already in the

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appellant's file (R. at 144), nothing in the letter indicated how the appellant should consider the

evidence already submitted when trying to determine what further evidence was needed. Although

the April 2001 letter provided the appellant notice of the evidence or information that was needed

to substantiate the "material" element of a claim to reopen, the notice is insufficient in light of the

letter's failure to notify the appellant of what information and evidence was needed to substantiate

the "new" element of the claim to reopen. For this reason, the Court holds that the April 2001 letter

did not inform the appellant adequately of the information and evidence not of record that is

necessary to substantiate the claim to reopen the service-connection claim for psoriasis.

The Board also relied on the January 2003 SOC (R. at 474-85) and the April 2003 SSOC

(R. at 491-93) to conclude that VA had satisfied the notice obligations of the VCAA. These

documents do not satisfy VA's duty to notify under the VCAA. Although the SOC and SSOC

informed the appellant that new evidence was required to reopen his claim, these documents used

the definition of "new evidence" from the 2001 amendments to § 3.156. In addition to providing the

appellant with the wrong definition of "new evidence," the SOC and SSOC informed the appellant

that the evidence that he had submitted satisfied the "new" requirement. Because these notice

documents provided the appellant with information that was incomplete and confusing, the notice

was insufficient. Mayfield, supra. Therefore, the Court holds that the appellant was not provided

adequate notice of the first VCAA requirement. The Secretary's failure to satisfy the first VCAA

requirement necessarily subsumes a conclusion that he also failed to satisfy the second and third

VCAA elements.

c. Prejudicial Error

Having found a failure to fulfill the Secretary's section 5103(a) notice obligations, the Court

must again take into account the rule of prejudicial error. Mayfield, supra. As indicated above, a

failure to explain the new-evidence requirement is not generally prejudicial where VA has provided

adequate notice as to what would constitute material evidence to reopen the claim and that any

material evidence would necessarily be new as well. In this regard, the two different bases upon

which the appellant could reopen his claim become important. As to the direct-service-connection

basis for reopening the claim, material evidence would be evidence relating to the element, for which

he had failed to submit any competent evidence, i.e., a medical nexus between his current psoriasis

and his in-service skin condition. As to this basis for reopening, the failure to explain the concept

of new evidence is not prejudicial because any nexus evidence would necessarily be new evidence.

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However, as to reopening of the claim based on § 3.303(b), the failure to explain the

importance of new evidence is prejudicial. The 1996 RO decision considered his SMRs and

postservice medical evidence and found that the evidence was insufficient to prove service

connection under § 3.303(b). Therefore, to reopen a claim on this basis, the appellant needed new

evidence where the evidence had previously been weighed and found wanting. In other words, he

needed something other than the previously submitted SMRs and postservice medical evidence to

support the proposition that his in-service condition was chronic psoriasis. However, it was not clear

from the April 2001 letter that cumulative and redundant evidence–such as the duplicative SMRs

submitted by the appellant (R. at 28)–would not be sufficient to reopen the claim. Moreover, when

the SOC and the SSOC provided wrong and confusing information, the "natural effect" of VA's

failure to give notice as to the requirement that the appellant submit "new" evidence effectively

deprived him of an opportunity to participate in the adjudication process because he was not

informed of the new evidence that was needed to reopen his claim. Mayfield, 19 Vet.App. at 122.

As with appellant's psychogenic gastrointestinal claim, the Secretary argues that any notice error is

harmless in this case because the outcome would not have been different. Secretary's Br. at 17. The

Secretary has chosen not to submit a supplemental brief on this issue pursuant to the Mayfield order.

As noted above, this argument was specifically rejected by the Court in Mayfield.

See Mayfield, 19 Vet.App. at 115. Thus, the Secretary has not sustained his burden in this case to

demonstrate that there was clearly no prejudice to the appellant based on his failure to give notice

as to the first VCAA requirement. Hence, a remand is required for notice that adequately explains

to the appellant what evidence he must submit in support of his psoriasis claim. As a claim for

service connection includes all theories under which service connection may be granted, see

Bingham v. Principi, 18 Vet.App. 470, 474 (2004), the Court notes that this remand does not limit

the appellant to pursuing a theory of service connection under § 3.303(b) on remand even though the

VCAA letter was prejudicially erroneous only as to that theory.

III. CONCLUSION

After consideration of the appellant's and the Secretary's briefs, and a review of the record,

the Board's October 8, 2003, decision is VACATED and the matters are REMANDED to the Board

for further proceedings consistent with this decision.

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