Angel Vazquez -Flores v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-0355

ANGEL VAZQUEZ -FLORES, APPELLANT ,

V.

JAMES B. PEAKE , M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued March 8, 2007 (Decided January 30, 2008 )

Kathy A. Lieberman, of Washington, D.C., for the appellant.

Debra L. Bernal, with whom Tim S. McClain, General Counsel; R. Randall Campbell,

Assistant General Counsel; and Carolyn F. Washington, Deputy Assistant General Counsel, all of

Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, and KASOLD and HAGEL, Judges.

KASOLD, Judge, filed the opinion of the Court. HAGEL, Judge, filed an opinion

concurring in the result.

KASOLD, Judge: Veteran Angel Vazquez-Flores appeals through counsel a February 1,

2005, decision of the Board of Veterans' Appeals (Board) that denied a disability rating greater than

30% for nephrolithiasis (kidney stones), and denied service connection for a neuropsychiatric

disorder on a direct basis and as secondary to a service-connected renal disability. For the reasons

set forth below, the Board's decision will be set aside and these matters remanded for

readjudication.

I. BACKGROUND

Mr. Vazquez-Flores served on active duty in the U.S. Army from July 1963 to July 1965 and

from January 1966 to January 1969. Record (R.) at 26. He was granted service connection for

nephrolithiasis, and in April 1976 his disability rating was increased to 30%. R. at 242, 246.

Additional evidentiary development followed, during which Mr. Vazquez-Flores submitted an April

1979 private mental evaluation report from Dr. Raul Correa Grau that reflects a diagnosis of

moderately severe depressive reaction and April 1979 hospitalization records that reflect a diagnosis

of schizophrenia. R. at 250-52, 274-75. After additional adjudication wherein a VA regional office

(RO) denied his claim for service connection for a psychiatric disorder, Mr. Vazquez-Flores

submitted a June 1982 private psychiatric evaluation report that opined that he had undifferentiated

schizophrenia and that his condition "becomes more prominent when ph[y]sical symptomatology

flares up." R. at 280. He appealed the RO decision to the Board, and in September 1984 the Board,

inter alia, denied service connection for an acquired psychiatric disorder on the basis that it was not

incurred in or aggravated by service. R. at 296-305.

In August 1994, Mr. Vazquez-Flores sought to reopen his previously denied claim. R. at

358. He also claimed that his "service-connected kidney condition ha[d] increased in severity." Id.

During the development of these claims, Mr. Vazquez-Flores submitted a July 1994 VA medical

report that his nephrolithiasis caused depression. R. at 362. He also submitted a September 1995

letter from his private psychiatrist, Dr. Jose Juarbe, who opined that Mr. Vazquez-Flores'

"schizophrenic condition started back in 1964," and that he considered the schizophrenia to be

service connected. R. at 390. In February 1998, Dr. Juarbe testified before the RO that Mr.

Vazquez-Flores had major depression that "without any doubt is related to his physical condition."

R. at 455. In August 2000, the RO issued to Mr. Vazquez-Flores a Supplemental Statement of the

Case (SSOC) containing the diagnostic code (DC) criteria for nephrolithiasis, hydronephrosis, and

renal dysfunction. R. at 505-14. A November 2002 VA mental disorders examination report

reflected that Mr. Vazquez-Flores had a diagnosis of recurrent, moderate major depressive disorder

that was not related to service and was not precipitated or aggravated by Mr. Vazquez-Flores'

service-connected renal disability. The VA examiner stated that Mr. Vazquez-Flores "does not

report any subjective complaint, any type of relationship between his renal symptoms and his

psychiatric symptomatology," and that his clinical history demonstrated no type of relationship

between these conditions. R. at 585.

In the decision on appeal, the Board found that letters dated April 2001 from the RO and

December 2003 from the Appeals Management Center (AMC) satisfied the Secretary's 38 U.S.C.

§ 5103(a) duty to notify, and that a February 2004 SSOC satisfied the additional notice requirement

in 38 C.F.R. § 3.159(b) (2007). R. at 18-20. The Board denied service connection for a

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neuropsychiatric disorder on both a direct basis and as secondary to a service-connected renal

disability, and also denied an increased disability rating greater than 30% for nephrolithiasis.

Mr. Vazquez-Flores argues on appeal that the Board erred in its determination that adequate

section 5103(a) notice on how to substantiate his claim had been provided. Specifically, he argues

that the letters relied upon by the Board failed to explain the criteria for a disability rating greater

than 30% for nephrolithiasis, including the possibility of rating the condition under an alternative

DC. He further argues that notice that the evidence must show that his condition has "gotten worse"

– without explaining what "worse" means in the context of the claim – is also insufficient. Mr.

Vazquez-Flores also maintains that he should have been given notice on how to request an

extraschedular rating.

II. DISCUSSION

A. 38 U.S.C. § 5103(a) Notice

1. Required Notice in General

Upon receipt of a complete or substantially complete application for benefits, the Secretary

is required to inform a claimant of any information and evidence not of record (1) that is necessary

to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant

is expected to provide, if any. See 38 U.S.C. § 5103(a); Quartuccio v. Principi, 16 Vet.App. 183,

187 (2002) (failure to provide adequate section 5103(a) notice is remandable error); see also

Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1345-46 (Fed. Cir. 2003)

(section 5103(a) "appl[ies] only when a claim cannot be granted in the absence of additional

necessary information described in the notice"). Regulations also provide that the Secretary is

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

to the claim." 38 C.F.R. § 3.159(b)(1) (2007); see Pelegrini v. Principi, 18 Vet.App. 112, 121

(2004).

The purpose of section 5103(a) and § 3.159(b) is to require the Secretary to "provide

affirmative notification to the claimant prior to the initial decision in the case as to the evidence that

is needed and who shall be responsible for providing it." Mayfield v. Nicholson, 444 F.3d 1328,

1333 (Fed. Cir. 2006) (Mayfield II). However, section 5103(a) does not require a "predecisional

adjudication" of the evidence because "the duty to notify deals with evidence gathering, not the

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analysis of already gathered evidence." Locklear v. Nicholson, 20 Vet.App. 410, 415-16 (2006).

Indeed, section 5103(a) notice "may be generic in the sense that it need not identify evidence

specific to the individual claimant's case (though it necessarily must be tailored to the specific nature

of the veteran's claim)." Wilson v. Mansfield, 506 F.3d 1055, 1062 (Fed. Cir. 2007). Further,

although adequate section 5103(a) notice need not be provided in a single notice letter, when

multiple documents are used to provide adequate notice, they must relate to notice and "contain the

same content or serve the same purpose as [section] 5103(a) notification." Sanders v. Nicholson,

487 F.3d 881, 886 (Fed. Cir. 2007); see also Mayfield II, 444 F.3d at 1335 ("The Board's decision

was based on an incorrect understanding of the law, specifically that [section 5103(a)] and

[§ 3.159(b)] permitted compliance through a combination of unrelated pre- and post-decisional

communications.").

Generally, section 5103(a) notice must be given on "all five elements of a claim for service

connection." Dingess v. Nicholson, 19 Vet.App. 473, 487 (2006); see also D'Amico v. West,

209 F.3d 1322, 1327 (Fed. Cir. 2000) (noting five elements of claim). Regarding the

initial-disability-rating element of a claim for service-connected disability compensation, we held

in Dingess that general section 5103(a) pre-adjudicatory notice regarding an initial disability rating

must be provided, to wit:

[T]he Secretary must, at a minimum, notify the claimant that, should service

connection be awarded, a schedular or extraschedular disability rating will be

determined by applying relevant [DCs] in the rating schedule, found in title 38, Code

of Federal Regulations, to provide a disability rating from 0% to as much as 100%

(depending on the disability involved) based on the nature of the symptoms of the

condition for which disability compensation is being sought, their severity and

duration, and their impact upon employment. Moreover, consistent with the

statutory and regulatory history, that notice must provide examples of the types of

medical and lay evidence that the claimant could submit (or ask [the Secretary] to

obtain) that are relevant to establishing a disability – e.g., competent lay statements

describing symptoms, medical and hospitalization records, medical statements,

employer statements, job application rejections, and any other evidence showing

exceptional circumstances relating to the disability.

Dingess, 19 Vet.App. at 488 (citing 66 Fed. Reg. 45,620, 45,622 (Aug. 29, 2001)). However, when

the application for benefits "suggests there is specific information or evidence necessary to resolve

an issue relating to elements of a claim," the Secretary "must consider that when providing notice

and tailor the notice to inform the claimant of the evidence and information required to substantiate

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the elements of the claim reasonably raised by the application's wording." Id. at 488-89; see also

Kent v. Nicholson, 20 Vet.App. 1, 9-10 (2006) (holding more specific notice is required for claims

to reopen). In short, the nature of the claim defines the scope of the notice required by section

5103(a). See Wilson and Dingess, both supra.

2. Required Notice for an Increased-Compensation Claim

In the claimant-friendly VA-benefits system, a claimant's assertion that an already

service-connected disability has worsened or increased in severity is a claim for additional (or

increased) compensation. See 38 U.S.C. §§ 1110 (providing for the award of compensation for

service-connected disabilities), 1114 (providing rates for disability compensation). An

increased-compensation claim for a given disability is a new and separate claim for which section

5103(a) pre-adjudicatory notice is required. See 38 C.F.R. § 3.400 (2007) (recognizing claim for

increase as separate from original claim or claim reopened after final disallowance); see also

Smallwood v. Brown, 10 Vet.App. 93, 97 (1997). Unlike an initial claim for disability compensation

where the evaluation of the claim is generally focused on substantiating service connection by

evidence of an in-service incident, a current disability, and a nexus between the two, the nature of

an increased-compensation claim centers primarily on evaluating the worsening of a disability that

is already service connected. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); Proscelle v.

Derwinski, 2 Vet.App. 629 (1992). That worsening generally is measured by the degree of the

disability impairment, which in turn is measured by the symptoms exhibited and the effect that

impairment has on the claimant's employment and daily life. See 38 U.S.C. § 7104(d)(1); 38 C.F.R.

§ 4.10 (2007) (basis of disability evaluations is ability to function under ordinary conditions of daily

life, including employment); Moore v. Nicholson, 21 Vet.App. 211, 218 (2007); Otero-Castro v.

Principi, 16 Vet.App. 375, 381-82 (2002).

Accordingly, for an increased-compensation claim, section 5103(a) requires, at a minimum,

that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask

the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity

of the disability and the effect that worsening has on the claimant's employment and daily life.

Further, if the DC under which the claimant is rated contains criteria necessary for entitlement to

a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable

worsening or increase in severity of the disability and the effect of that worsening has on the

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claimant's employment and daily life (such as a specific measurement or test result), the Secretary

must provide at least general notice of that requirement to the claimant. See Wilson, 506 F.3d at

1060-62; Moore and Otero-Castro, both supra; 38 C.F.R. § 4.10. Additionally, the claimant must

be notified that, should an increase in disability be found, a disability rating will be determined by

applying relevant DCs, which typically provide for a range in severity of a particular disability from

0% to as much as 100% (depending on the disability involved), based on the nature of the symptoms

of the condition for which disability compensation is being sought, their severity and duration, and

their impact upon employment and daily life. Dingess, 19 Vet.App. at 488; 38 C.F.R. § 4.10. As

with proper notice for an initial disability rating and consistent with the statutory and regulatory

history, the notice must also provide examples of the types of medical and lay evidence that the

claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to

increased compensation–e.g., competent lay statements describing symptoms, medical and

hospitalization records, medical statements, employer statements, job application rejections, and any

other evidence showing an increase in the disability or exceptional circumstances relating to the

disability. See Dingess, supra.

3. Administrative Claims Processing

Section 5103(a) notice must be given before an initial decision on the claim is rendered in

order to serve its statutory purpose of promoting development of the claim properly the first time.

See Mayfield II, 444 F.3d at 1333 ("The purpose of the statute and the corresponding regulation is

to require that the VA provide affirmative notification to the claimant prior to the initial decision in

the case as to the evidence that is needed and who shall be responsible for providing it."); 146 Cong.

Rec. S9212-13 (Sept. 25, 2000) (statement of Sen. Rockefeller) (notice is intended to ensure that

claim is "developed properly the first time the veteran submits an application for benefits" such that

it will "lead to expedited decisionmaking and higher satisfaction in the process"). This purpose is

wholly frustrated when inadequate notice leads to inadequate development of a claim prior to the

initial decision.

To ensure that claimants receive the benefits to which they are entitled, Congress created a

uniquely pro-claimant, nonadversarial VA-benefits adjudicatory system that contains several

important procedural steps to promote that pro-claimant environment. See Wilson, 506 F.3d at

1060-62 (discussing statutory and regulatory provisions relating to the adjudicatory scheme);

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Sanders, 487 F.3d at 889 (noting the "uniquely pro-claimant benefits system" at VA); Hodge v.

West, 155 F.3d 1356, 1362 (Fed. Cir. 1998); Hayre v. West, 188 F.3d 1327, 1334 (Fed. Cir. 1999)

(veterans system is "uniquely claimant friendly system of awarding compensation"). Those

procedural steps allow claimants who disagree with initial decisions on their claims to receive a

Statement of the Case (SOC) (and an SSOC if necessary), explaining the reasons, law, and

regulations governing that decision. Additionally claimants may receive further development of

their claim if deemed proper by the Secretary, they may appear at a hearing, request a review by a

decision review officer (DRO), and receive at least one review of the initial decision by the Board.

See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1346-47 (Fed. Cir. 2003)

(invalidating regulation that precluded claimant's right to two reviews before the Agency); Dingess,

19 Vet.App. at 489-91 (discussing section 5103(a) within statutory adjudicatory scheme); see, e.g.,

38 U.S.C. §§ 5104(a)-(b) (requiring notice of initial decision on claim, to include explanation of

procedure for obtaining review of decision and, when benefit sought is denied, statement of reasons

for decision and summary of evidence considered by Secretary), 7104(a) (vesting Board with

jurisdiction over appeals from decision by Secretary on claim), 7105(d) (providing that after initial

decision is rendered on claim, claimant may file Notice of Disagreement (NOD) and Secretary must

attempt to resolve disagreement or issue SOC); see also 38 C.F.R. §§ 3.103(b)(1), (c) (requiring

notice of any decision affecting payment of benefits or granting relief, to include notice of decision

made, right to hearing, and notice of procedures necessary to initiate appeal), 3.103(c)(2) (providing

that VA hearing officer has duty to "suggest the submission of evidence which the claimant may

have overlooked and which would be of advantage to the claimant's position"), 3.2600 (providing

for review by DRO after NOD has been filed); 19.31(a) (2007) (providing for an SSOC to be issued

to inform claimant of material changes since the SOC or prior SSOC).

When an NOD is filed to the initial decision and there is alleged a notice error, the surest and

often quickest way to correct that error is for the adjudicator to issue a new, adequate notice and

readjudicate the claim. See Medrano v. Nicholson, 21 Vet.App. 165, 169 (2007) (Secretary "may

cure timing defects by issuing a fully compliant [section 5103(a)] notification and then

readjudicating the claim"); see also Mayfield II, 444 F.3d at 1333-34 (timing-of-notice defect may

be cured by issuance of content-compliant section 5103(a) notice and subsequent readjudication).

For those claims that are not resolved by the adjudicator and an appeal ultimately reaches the Board

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for final decision, the Board must necessarily consider any established predecisional notice error to

be presumptively prejudicial. Cf. Sanders, 487 F.3d at 886, 891 (noting that the claimant has the

burden of demonstrating notice error); Simmons v. Nicholson, 487 F.3d 892, 894-96 (Fed. Cir. 2007)

(claimant must establish that VA committed predecisional notice error before Court takes account

of prejudice). The Board may evaluate for harmless error, however, such evaluation is subject to

the Court's de novo review. See Medrano, 21 Vet.App. at 170-71 (citing Mayfield v. Nicholson,

20 Vet.App. 537, 542-43 (2006) (Mayfield III)).

4. Rule of Prejudicial Error

In filings with the Court, an appellant generally must demonstrate error. See Sanders,

487 F.3d at 891 (appellant has burden of demonstrating section 5103(a) notice error); Hilkert v.

West, 12 Vet.App. 145, 151 (1999) (en banc) (appellant has burden of demonstrating error);

compare U.S. VET. APP. R. 28(a) (requiring appellant to provide the Court with a brief presenting

all issues on appeal) with U.S. VET . APP. R. 28(I) (suspending Rule 28(a) and allowing a pro se

veteran to submit an informal brief). Whether adequate section 5103(a) notice has been provided

is reviewed under the "clearly erroneous" standard of review. See Garrison v. Nicholson, 494 F.3d

1366, 1370 (Fed. Cir. 2007); Gordon v. Nicholson, 21 Vet.App. 270, 281 (2007) (section 5103(a)

notice error is a factual determination reviewed under the "clearly erroneous" standard);

Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990) (Board's findings of fact are reviewed under the

"clearly erroneous" standard of review in 38 U.S.C. § 7261(a)(4)). A finding of material fact is

clearly erroneous when the Court, after reviewing the entire evidence, "'is left with the definite and

firm conviction that a mistake has been committed.'" Id. (quoting United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948)).

When it is established on appeal to the Court that the Board has committed an error, the

Court must take due account of the rule of prejudicial error. See 38 U.S.C. § 7261(b)(2) (Court shall

"take due account of the rule of prejudicial error"); Newhouse v. Nicholson, 497 F.3d 1298, 1301

(Fed. Cir. 2007) (stating "that the Veterans Court was required to examine whether any errors by

VA were prejudicial and that it must do so based on the administrative record"); Conway v. Principi,

353 F.3d 1369, 1374-75 (Fed. Cir. 2004). Although an appellant generally must establish that error

is prejudicial, see Marciniac v. Brown, 10 Vet.App. 198, 201 (1997) (citing Parker v. Brown,

9 Vet.App. 476, 481 (1996) (appellant must demonstrate prejudice, or Court will conclude that a

8

technical procedural defect is harmless)), once an appellant establishes that there was a section

5103(a) notice error, such error is presumptively prejudicial, see Sanders, 487 F.3d at 886, 891. A

presumptively prejudicial notice error will require reversal of the Board's finding of adequate section

5103(a) notice unless the Secretary "can show that the error did not affect the essential fairness of

the adjudication." Id. at 889; see also Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007)

(same); Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996) (procedural or

substantive error is prejudicial when error results in "injury to an interest that the statute, regulation,

or rule in question was designed to protect").

To overcome the presumption of prejudice associated with a pre-adjudicatory notice error,

the Secretary "must persuade the reviewing court that the purpose of the notice was not frustrated."

Sanders, 487 F.3d at 889; see also Mlechick, 503 F.3d at 1346 (holding that our Court reviews

predecisional notice errors to determine whether any differences between notice given and section

5103(a) notice required "affect[ed] the fundamental fairness of the adjudication"). This may be

done by demonstrating, for example, (1) that the claimant had actual knowledge of what was

necessary to substantiate the claim and that the claim otherwise was properly developed, (2) that "a

reasonable person could be expected to understand from the notice what was needed" to substantiate

the claim,1 or (3) that the benefit could not be awarded as a matter of law. Sanders, 487 F.3d at 889

(reiterating examples noted in Mayfield v. Nicholson, 19 Vet.App. 103 (2005) (Mayfield I).

Additionally, because the Court reviews only final Board decisions and not the initial or

intermittent decisions rendered below, see 38 U.S.C. § 7252, and because reversal is not warranted

unless an error affects the essential fairness of the adjudication, see Sanders, 487 F.3d at 886, the

Court should consider whether the post-adjudicatory notice and opportunity to develop the case that

is provided during the extensive administrative appellate proceedings leading to the final Board

decision and final Agency adjudication of the claim, see, e.g., 38 U.S.C. §§ 5104(a)-(b), 7104(a),

7105(d); 38 C.F.R. §§ 3.103(b)(1), (c), (c)(2), 3.2600, 19.31(a) (2007), served to render any pre-

1

Although demonstrating that a reasonable person would be expected to understand from a particular notice

what was necessary to substantiate the claim is cited in Sanders as a means of demonstrating no prejudice, it is more

correctly stated to be a demonstration that there was no error. See Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333,

337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Of

course, that also means there was no prejudice arising from the notice. See Kitt v. Clark, 931 F.2d 1246, 1249 (8th Cir.

1991) ("[I]f there is no error, there can be no prejudice.").

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adjudicatory section 5103(a) notice error non-prejudicial. See Sanders, 487 F.3d at 886 (recognizing

that the purpose of the rule of prejudicial error is "'to avoid wasteful proceedings on remand where

there is no reason to believe a different result would have been obtained had the error not occurred'"

(quoting In re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004))); see also Newhouse, 497 F.3d at 1301

(stating "that the Veterans Court was required to examine whether any errors by VA were prejudicial

and that it must do so based on the administrative record").2

5. Application in this Case

The record before the Board reveals that Mr. Vazquez-Flores was assigned a 30% disability

rating for nephrolithiasis under 38 C.F.R. § 4.115b, DC 7508 (2007), the highest disability rating

for that disability under that DC. However, DC 7508 cross-references 38 C.F.R. § 4.115b, DC 7509,

"hydronephrosis," which provides that severe hydronephrosis may be rated as renal dysfunction

under 38 C.F.R. § 4.115a. Under § 4.115a, hypertension that is found to be 40% disabling under

38 C.F.R. § 4.104, DC 7101 (2007), is sufficient to increase a disability rating for nephrolithiasis

to 60%. See 38 C.F.R. §§ 4.115a, 4.115b. Adequate section 5103(a) notice for Mr. Vazquez-Flores'

increased-compensation claim should have included, at a minimum, notification that he must either

provide, or ask the Secretary to obtain, medical or lay evidence demonstrating the worsening of the

disability and the effect of that worsening on his employment and daily life. Additionally, because

2

Although our dissenting colleague takes exception to our noting that pre-adjudicatory notice may be rendered

non-prejudicial by the administrative appellate process, we see nothing in Sanders that might limit the Court solely to

the "examples" cited therein when assessing prejudice. Indeed, the very designation of the three stated means of

demonstrating no prejudice as "examples" indicates there may be other means of doing so. Moreover, we note that our

error in Mayfield I was in determining that pre-adjudicatory notice had been satisfied by a document not otherwise

discussed by the Board. The Federal Circuit in Sanders, Newhouse, and Mlechick made it clear that our focus should

be on whether the final Board decision under review is rendered essentially unfair as a result of the initial notice error,

i.e., whether the notice error prejudicially affected the Board's final decision. See also Dunlap v. Nicholson, 21 Vet.App.

112, 118 (2007) ("[I]n order for the Court to be persuaded that no prejudice resulted from a notice error, the record must

demonstrate that, despite the error, the adjudication was nevertheless essentially fair."). Finally, the purpose of pre-

adjudicatory notice is to ensure the initial decision is correct. See Mayfield II, 444 F.3d at 1333 ("The purpose of the

statute and the corresponding regulation is to require that the VA provide affirmative notification to the claimant prior

to the initial decision in the case as to the evidence that is needed and who shall be responsible for providing it."

(emphasis added)). As noted in section II.A.(4) of the text, we review final Board decisions that are rendered after an

extensive administrative appellate process. Nothing in law or common sense supports a conclusion that the Court should

put on blinders and ignore this process or a conclusion that a notice error prior to the initial decision by the Secretary

could not be rendered non-prejudicial when the full panoply of administrative appellate procedures established by

Congress are provided to the claimant. It is well settled that a remand is not warranted when no benefit would flow to

the claimant. See Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (remand unnecessary when it "would result in this

Court's unnecessarily imposing additional burdens on the [Board and the Secretary] with no benefit flowing to the

veteran. This we cannot do.").

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at least some of the higher disability ratings authorized under the DC (and referenced DCs) under

which Mr. Vazquez-Flores' disability is rated are based on specific criteria beyond the obvious effect

of the worsening of the disability and its effect upon his employment and daily life, the Secretary

should have notified Mr. Vazquez-Flores, at least in general terms, of the information and evidence

necessary to establish these more specific criteria. Further, if an increase in disability is found, a

disability rating would be assigned by applying relevant DCs based on the nature, severity, and

duration of the symptoms and their impact upon his employment and daily life to the extent

permitted by law.

In this case, the Board relied on notice letters dated April 2001 and December 2003 and a

February 2004 SSOC to find adequate notice. We observe that the Board relied on the February

2004 SSOC only to find compliance with § 3.159. The Board found that the April 2001 and

December 2003 notice letters provided the notice required by section 5103(a). See Prickett v.

Nicholson, 20 Vet.App. 370, 375-76 (2006) (concluding that Board found one letter alone satisfied

Secretary's section 5103(a) duty despite discussion of other documents within the decision). The

Board considered the April 2001 letter to be a routine notice letter issued by the RO. Although the

Board noted that the December 2003 letter from the AMC was not a "formal" section 5103(a) notice

letter, it nevertheless found that this letter informed Mr. Vazquez-Flores of the status of both of his

claims and provided him basic notice required under section 5103(a). R. at 19; see R. at 928.

Because the December 2003 letter was not a decisional notification and contained elements of notice

required by section 5103(a), it was not improper for the Board to rely on it when determining

whether adequate section 5103(a) notice had been provided to Mr. Vazquez-Flores. See Mayfield II,

444 F.3d at 1333 (post-decisional documents have contents and purposes different from those of

compliant section 5103(a) notice documents and therefore cannot serve to satisfy the purpose of

section 5103(a)); cf. Sanders, 487 F.3d at 886.

Nonetheless, neither of these letters provided to Mr. Vazquez-Flores the necessary

information regarding substantiating his claim for a disability rating higher than the 30% rating

currently assigned. The April 2001 letter does not advise how to substantiate an

increased-compensation claim. Rather, it focuses only on what is necessary to substantiate a

service-connection claim. R. at 550-53. The December 2003 letter advised him only to submit

evidence that shows that his nephrolithiasis has "gotten worse." R. at 928. It fails to explain that

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the evidence must demonstrate the effect of that worsening on his occupational and daily life or to

provide, at least in general terms, the criteria beyond the effect of the worsening of the disability

upon the occupational and daily life that is necessary to be awarded the higher disability rating for

his condition. See 38 C.F.R. §§ 4.115a, 4.115b; Wilson, Moore, and Otero-Castro, all supra.

Moreover, the totality of information provided in these documents was also confusing in that it

provided differing versions of what was required to show entitlement to a higher disability rating.

See Kent, 20 Vet.App. at 12 (incomplete and confusing information renders section 5103(a) notice

inadequate). Accordingly, the lack of adequate information in the notice and the otherwise

confusing nature of the notice leaves us with a definite and firm conviction that the Board's finding

that the Secretary provided section 5103(a)-compliant notice is clearly erroneous. See Gordon,

supra.

Having found notice error, that error is presumptively prejudicial. See Sanders, 487 F.3d at

891. The Secretary argues that Mr. Vazquez-Flores was not prejudiced because the "record clearly

shows that [he] had actual knowledge of what was necessary to substantiate his claim. Indeed, [Mr.

Vazquez-Flores] was clearly advised of the evidence necessary to substantiate his claim."

Secretary's Brief at 23. We are not convinced by the Secretary's argument. To the extent he argues

that the April 2001 and December 2003 letters clearly identified the information and evidence that

would assist in substantiating Mr. Vazquez-Flores' claim, his argument fails. As discussed above,

these documents were incomplete and confusing concerning what was necessary for Mr.

Vazquez-Flores to substantiate his claim for increased compensation.

Additionally, the Secretary's assertion that Mr. Vazquez-Flores had actual knowledge of

what was necessary to substantiate his claim appears to be premised on a misunderstanding that

receipt of notice equates to actual knowledge. It does not. Actual knowledge is established by

statements or actions by the claimant or the claimant's representative that demonstrate an awareness

of what was necessary to substantiate his or her claim. See Dalton v. Nicholson, 21 Vet.App. 23,

30-31 (2007); see also Short Bear v. Nicholson, 19 Vet.App. 341, 344 (2005). To the extent the

Secretary contends that by submitting evidence Mr. Vazquez-Flores demonstrated actual knowledge

of what was needed to substantiate his claim, the Secretary proffers no evidence from the record on

appeal that demonstrates such actual knowledge or understanding on the part of Mr. Vazquez-Flores.

See Sanders, Dalton, and Short Bear, all supra. Finally, the record on appeal otherwise does not

12

demonstrate that during the administrative appeal process Mr. Vazquez-Flores was provided the

information necessary such that any defective predecisional notice error was rendered non-

prejudicial in terms of the essential fairness of the adjudication.3 4 See Mlechick, Newhouse, and

Sanders, all supra.

B. Statement of Reasons or Bases

The Board must include in its decision a written statement of the reasons or bases for its

findings and conclusions, adequate to enable an appellant to understand the precise basis for the

Board's decision as well as to facilitate review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v.

Brown, 7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with this requirement,

the Board must analyze the credibility and probative value of the evidence, account for the evidence

that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material

evidence favorable to the claimant. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per

curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, 1 Vet.App. at 57.

Mr. Vazquez-Flores argues that the Board, in denying his neuropsychiatric disorder claim,

relied heavily on a November 2002 VA examination report despite the fact that the report is unclear

as to the scope of a key statement, and without explaining evidence in the record that refutes that

key statement. Specifically, the report states that Mr. Vazquez-Flores "does not report any

subjective complaint, any type of relationship between his renal symptoms and his psychiatric

3

Unlike our dissenting colleague, we believe our duty to "take due account of the rule of prejudicial error" is

not limited to considering only the three "examples" cited in Sanders. See n.2, supra, and accompanying text. Moreover,

having noted that notice error before the initial decision might be rendered non-prejudicial by the full panoply of

administrative appellate procedures below, we proceed to find that the administrative appellate proceedings below fail

to so demonstrate. Having confronted an issue germane to resolution of this case, our ruling is not dicta. See, e.g.,

Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) ("As we have noted before, 'where a panel confronts an

issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion,

that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.'"

(quoting United States v. Johnson, 256 F.3d 895, 914 (9th Cir. 2001) (en banc))); Hatch v. Principi, 18 Vet.App. 527,

531 (2004) ("Although '[n]o controlling precedent can arise from dictum on a question not before the court,' '[w]hen an

opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by

which we are bound.'" (quoting Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996), and Sullivan v. Dep't of Navy,

720 F.2d 1266, 1279 (Fed. Cir. 1983))).

4

In light of our conclusion that the presumption of prejudice was not rebutted with regard to specific notice of

how an increased rating might be substantiated, we need not further address other alleged errors in the notice and any

resultant prejudice. See Dunn v. West, 11 Vet.App. 462, 467 (1998) (remand of appellant's claim under one theory moots

the remaining theories advanced on appeal).

13

symptomatology," and that his clinical history shows no type of relationship between these

conditions. R. at 585. This statement in the November 2002 VA examination report may be read

broadly to say that there is no medical evidence and no complaints of record from Mr.

Vazquez-Flores regarding a relationship between his nephrolithiasis and his psychological condition.

However, the record contains at least three reports that, on their face, contradict this statement. See

R. at 280 (June 1982 psychiatric evaluation report stating that Mr. Vazquez-Flores' psychiatric

condition "becomes more prominent when ph[y]sical symptomatology flares up"), 362 (July 1994

VA medical record reflecting that Mr. Vazquez-Flores' complaints of depression were the result of

his nephrolithiasis), 455 (February 1998 testimony of Dr. Juarbe that Mr. Vazquez-Flores' major

depression "without any doubt is related to his physical condition"). The Board erred in not

explaining the discrepancy in this apparently contradictory information or why it gave greater

weight to the November 2002 examination report than it gave to the contradictory information. See

Gilbert, supra.

It is also possible that the November 2002 examination report can be read more narrowly to

mean that, during that particular examination, Mr. Vazquez-Flores provided no history or complaint

to the examiner. The Board should have recognized and addressed the fact that the November 2002

examination report statement on this key issue could fairly be read broadly or narrowly, with

differing meanings, and it should have either returned the examination report to the examiner for

clarification of its meaning or explained why such action was not necessary. See Daves v.

Nicholson, 21 Vet.App. 46, 51 (2007) (when medical examination report was susceptible to multiple

fair but inconsistent meanings, Board erred in failing to seek clarification); 38 C.F.R. § 4.2 (2007).

C. Foreign Language Documents Contained in the Record on Appeal

The record on appeal contains numerous documents obtained from the Social Security

Administration that are in a language other than English but are unaccompanied by an English

translation, thus impeding judicial review. See, e.g., R. at 863-64, 866. The "Court conducts its

reviews and deliberations in English. Any document transmitted to the Court (including one in the

record on appeal) in a language other than English must be accompanied by an English translation

that is certified by the translator, pursuant to 28 U.S.C. § 1746, as true and accurate." U.S. VET.

APP. R. 3(h). The parties are reminded that compliance with the Court's Rules of Practice and

Procedure is mandatory, not permissive.

14

D. Remand

Where, as here, the Board has failed to provide an adequate statement of reasons or bases

and there have been other errors prejudicial to an appellant, the general remedy is to remand the

affected matters for corrective action. See Tucker v. West, 11 Vet.App. 369, 374 (1998) ("[W]here

the Board has incorrectly applied the law, failed to provide an adequate statement of reasons or bases

for its determinations, or where the record is otherwise inadequate, a remand is the appropriate

remedy."). On remand, Mr. Vazquez-Flores may present any additional evidence and argument in

support of the matters remanded, and the Board must consider any evidence and argument so

presented. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). These matters must be provided

expeditious treatment on remand. See 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION

Upon consideration of the foregoing, the Board's February 1, 2005, decision is SET ASIDE,

and the matters are REMANDED for readjudication consistent with this opinion.

HAGEL, Judge, concurring in the result: I concur only in the majority's ultimate conclusion

that a claim for increased disability compensation requires at least general section 5103(a) notice

tailored to the particulars of an individual's claim. This is a logical conclusion flowing from our

previous decisions, as is the majority's ultimate determination that the notice provided to Mr.

Vazquez-Flores was deficient and that the Secretary failed to rebut the presumption of prejudice as

required by the Federal Circuit in its opinion in Sanders. However, I write separately to express my

disagreement with the majority's establishment, in dicta, of a fourth means of rebutting the

presumption of prejudice when a section 5103(a) notice error is shown by the appellant. I also write

to articulate my opposition to the majority's unnecessary and misleading statements regarding the

analysis of prejudice and the misguided application of the U.S. Court of Appeals for the Federal

Circuit's (Federal Circuit's) recent opinions in Sanders, Newhouse, Mlechick, and Wilson, all supra,

that, if applied, would frustrate the purpose of pre-decisional section 5103(a) notice obligations in

the VA adjudicatory scheme. The majority's statements are neither necessary to reach the decision

in this case nor applied in reaching it. They are, then, purely dicta. There is danger in permitting

such language to survive in a precedential opinion, as its existence invites selective quotation and

15

misapplication of that language in future cases, similar to what the majority has done with the

Federal Circuit opinions claimed to support its mistaken view. The majority's attempt to enumerate

a fourth "example" for rebutting prejudice circumvents the Federal Circuit's holdings in both

Mayfield and Sanders.

1. Analysis of Decisions of the Federal Circuit Regarding the Application of the Rule of

Prejudicial Error in Cases Involving Allegations of Defective Section 5103(a) Notice

There is no doubt that this Court has the responsibility to take into account the rule of

prejudicial error. 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369 (2004) (holding that

this Court may not refuse to take into account the rule of prejudicial error). We are also instructed

that, in making such determinations, we are not limited solely to the facts as found by the Board.

Newhouse v. Nicholson, 497 F.3d 1298 (2007). These two holdings, however, do not, in cases of

section 5103(a) notice error, permit the Court to conduct an unlimited and unconstrained foraging

of the record to make such determinations. In the context of making a determination regarding

prejudicial error in section 5103(a) notice cases, the Federal Circuit has prescribed the Court to

follow a particular method of analysis. It has done so for a variety of reasons, not the least of which

is to ensure that the purpose for which that statute was created is not frustrated and to ensure that

the burden of proof of the harmlessness of defective notice remains on the Secretary, who is charged

by Congress with providing adequate notice. See Sanders, 487 F.3d at 887 (holding that "the

Secretary is required to persuade the [C]ourt that the purpose of the notice was not frustrated").

After this Court wrestled with the application of the rule of prejudicial error in the context

of section 5103(a) notice, this question was definitively resolved by the Federal Circuit by its

decision in Sanders.1 See Mayfield v. Nicholson, 19 Vet.App. 103 (2005); Mayfield v. Nicholson,

19 Vet.App. 220, 222 (2005) (denying full-Court consideration; Ivers, J., and Hagel, J., dissenting);

Overton v. Nicholson, 20 Vet.App. 427 (2006); Overton, supra n.1 (denying full-Court

1

I have expressed my view that it is best to develop a general test for the application of the rule of prejudicial

error that can be applied in all cases, rather than to devise a special test applicable only to section 5103(a) notice cases.

See Overton v. Nicholson, 20 Vet.App. 494, 498 (2006) (denying full-Court consideration; Hagel, J., Davis, J., and

Schoelen, J., dissenting). I believe such a general test could, if so formulated, include a more general use of the

administrative record for consideration of the facts of each case to determine whether a notice error is prejudicial.

However, the Federal Circuit has found, for the persuasive reasons stated in Sanders, that a special test is to be used in

deciding cases in which a section 5103(a) notice error is found. We are, of course, required to follow that precedent.

16

consideration; Hagel, J., Davis, J., and Schoelen, J., dissenting); see also Sanders, 487 F.3d at 891

(Fed. Cir. 2007) (holding that "all [section 5103(a)] notice errors are presumed prejudicial and that

the VA has the burden of rebutting this presumption"). Consequently, despite the majority's

characterization to the contrary, see n.2 of the majority opinion, this Court's initial decision in

Mayfield has been discredited. The Federal Circuit's decision in Mayfield found error in this Court's

reliance on a document not considered by the Board to be error and Sanders overruled this Court's

Mayfield decision with respect to the placement of the burden on the appellant to show prejudice.

In Sanders, the Federal Circuit made several key findings. First, the veteran bears the burden

of establishing that there is section 5103(a) notice error. Consequently, if the veteran fails in this

regard, then there is no need to engage in a prejudicial-error analysis with regard to that issue. See

id. at 891. In making this finding the Federal Circuit relies on Rule 28(a) of this Court's Rules of

Practice and Procedure. That rule, in pertinent part, requires that the appellant submit a brief that

includes his or her contentions with respect to the issues and a short conclusion stating the precise

relief sought.2 In short, it appears that, in order to satisfy the requirement of demonstrating error,

the represented appellant3 must allege the error in the brief and support the allegation with proper

legal and factual citations.

Second, Sanders holds that if the veteran alleges a notice error and properly supports that

allegation, that the error is presumed to be prejudicial, while VA has the burden of proving that the

notice error did not result in prejudice. Id. at 889.

Third, in Sanders, the Federal Circuit held that if the Court finds a notice error and the

2

Rule 28(a) of the Court's Rules of Practice and Procedure states in full:

The appellant must file a brief which, unless the appellant is self-represented and submits an informal

brief pursuant to subsection (I), must contain, in the following order, the appropriate division headings

and following separate divisions: (1) A table of contents, with page references; (2) a table of cases

(alphabetically listed), statutes, and other authorities cited, with references to the page of the brief

where they are cited, unless the case is expedited under Rule 47; (3) a statement of the issues; (4) a

statement of the case, showing briefly the nature of the case, the course of proceedings, the result

below, and the facts relevant to the issues, with appropriate references to the record on appeal; (5) an

argument, beginning with a summary and containing the appellant's contentions with respect to the

issues and the reasons for those contentions, with citations to the authorities and parts of the record

on appeal relied on; and (6) a short conclusion stating the precise relief sought.

3

As recognized by the majority, briefs of self-represented appellants are governed by Rule 28(I), which exempts

them from adhering to the form set forth in Rule 28(a), and which provides: "Only a self-represented party may submit,

without regard to the requirements of subsection (a) and Rule 32, an informal brief on the form provided by the Court."

17

Secretary fails to satisfy its burden of proving that such notice error is not prejudicial, there is only

one course of action: The matter must be remanded. This requirement could not have been put

more directly or succinctly by the Federal Circuit: "[W]e hold that the [Veterans Claims Assistance

Act] notice errors should be presumed prejudicial, requiring reversal unless the VA can show that

the error did not effect the essential fairness of the adjudication. To do this, the VA must persuade

the reviewing court that the purpose of the notice was not frustrated." Id. (emphasis added).

Fourth, in Sanders, the Federal Circuit went to great pains to explain how such a method of

analysis fits within the general rule of prejudicial error, stating that "[a] presumption of prejudice

does not require reversal in all instances of [section 5103(a)] notice error. Only in situations where

the VA cannot rebut the presumption would reversal be warranted." Id. at 891 (emphasis added).

Newhouse followed Sanders. Newhouse v. Nicholson, 497 F.3d 1300 (Fed. Cir. 2007). In

Newhouse, the Federal Circuit upheld this Court's finding of a non-prejudicial notice error, holding

that we have the statutory obligation to take into account whether prejudicial error existed, even in

the absence of a Board finding on that issue. Id. at 1302. The Federal Circuit, thus, dismissed the

appellant's argument that when notice error was found, the Court had to remand the matter to the

Board for it to determine in the first instance whether the error was harmless. Nowhere in the

decision does Newhouse relieve the Secretary of his burden under Rule 28(b) to articulate his case

for non-prejudicial error. Indeed, the Newhouse decision goes on to quote Sanders with approval

for the proposition that "the Secretary is required to persuade the [C]ourt that the purpose of the

notice was not frustrated – e.g., by demonstrating … that any defect in the notice was cured by

actual knowledge on the part of the claimant." Newhouse, 497 F.3d at 1302 (quoting Sanders, 487

F.3d at 887) (emphasis added). The Federal Circuit's discussion in Newhouse of review of the

administrative record to make a prejudice determination must be read in the factual context of that

decision.

In Mlechick, decided after Newhouse, the Federal Circuit overruled this Judge's single-judge

decision, relying on Pelegrini v. Principi, to find that it would be speculative and, thus, impossible

to apply the rule of prejudicial error in certain circumstances where the appellant established a notice

error. Mlechick v. Mansfield, 503 F.3d 1340, 1344 (Fed. Cir. 2007); see also Pelegrini v. Principi,

18 Vet.App. 112, 120 (2004). Mlechick cites both Sanders and Newhouse in its decision, stating:

Given this framework [i.e., the framework established in Sanders and Newhouse], the

18

Veterans Court should have first presumed that any inadequacies in the notice [Mr.]

Mlechick received were prejudicial. See [Sanders, 487 F.3d at 889]. Next, the

Veterans Court should have determined whether VA had overcome the presumption

that the notice error was prejudicial by demonstrating that the "error did not affect the

essential fairness of the adjudication." Id. In conducting this inquiry the Veterans

Court can review the entire "record of the proceedings before the Secretary and the

Board" in determining whether an error was non-prejudicial. Newhouse [, 497 F.3d

at 1302]; 38 U.S.C. § 7261(b)(2). Thus, the Veterans Court's inquiry should have

included a review of the record to determine if VA had met its burden of showing that

the notice error was non-prejudicial.

503 F.3d at 1345 (emphasis added). In short, in assessing the prejudicial effect of a notice error, the

Court's review of the administrative record is not intended to be an unrestrained review but is limited

to determining the validity of the Secretary's allegations that the error in the notice was not

prejudicial.

Most recently, the Federal Circuit decided Wilson v. Mansfield. 506 F.3d 1055 (Fed. Cir.

2007). In Wilson, the issue was whether section § 5103(a) requires VA to advise the veteran of

precisely what evidence was missing in his claims file in order for the claim to be successful. The

Federal Circuit found section 5103(a) was not so inclusive. Wilson is significant, however, in that

the Federal Circuit, as the majority does here, recognizes the extensive nature of the procedures

involved in the adjudication of a claim for VA benefits. Id. at 1060-62. Unlike the conclusion

drawn by the majority, however, Wilson does not hold that those procedures provide an alternative

basis for finding section 5103(a) notice compliance. Indeed, Wilson cites Sanders and the Federal

Circuit's decision in Mayfield for the proposition that section 5103(a) notice is intended to require

VA to provide affirmative notification to the claimant prior to the initial decision in the case, and

not that post-adjudicatory procedures can serve to render a notice error non-prejudicial through their

existence alone. Id. at 1062.

2. Application of the Federal Circuit Decisions to the Majority Opinion

In considering the application of recent Federal Circuit precedent in this case, it is important

to note that, other than an argument based on our now defunct Mayfield analysis, the only argument

made by the Secretary that any notice error should be found harmless is that Mr. Vasquez-Flores had

actual knowledge of the notice elements and, thus, the purpose for which the notice requirement was

19

instituted was not frustrated.4

The majority makes several important omissions when quoting the abundance of recent

Federal Circuit precedent regarding section 5103(a) notice. Although the majority cites Sanders and

this Court's Rule 28(a) for the proposition that "an appellant generally must demonstrate error," the

words "demonstrate error" only appear in Sanders, which explains that its holding "does not displace

the rule that the claimant bears the burden of demonstrating error in the [section 5013(a)] notice."

See ante at 8; see also Sanders, 487 F.3d at 891 (citing Rule 28(a)) (emphasis added). However, the

majority fails to find that this rule applies to the Secretary under Rule 28(b), which makes Rule 28(a)

applicable to the Secretary's briefing as well.5 This is important where, as here, the majority would

seek to impose a pleading requirement on an appellant to show a notice error, but would not, in turn,

require the Secretary to so plead a theory under which the alleged error did not result in prejudice.

As explained below, the majority would decline to do so, as it would prefer to conduct an

unrestrained search of the record to look to post-initial-adjudication procedures to support findings

of no prejudice in cases where the Secretary is otherwise unable to rebut the presumption of a

prejudicial notice error. Cf. Sanders, 487 F.3d at 889 ("[W]e hold that the [section 5103(a)] notice

errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did

not affect the essential fairness of the adjudication."); see also Mlechick, 503 F. 3d at 1345 (same).

The majority's application is wrong on two counts. First, the Secretary failed to make any

argument that procedures following the initial adjudication eliminated the presumptive prejudice of

the notice error. Because of this pleading failure, and because the Secretary presented no other

viable arguments that any notice errors were rendered non-prejudicial, reversal is required under

Sanders. Sanders, 487 F.3d at 889; see also U.S. VET.APP. R. 28(b). Second, the Federal Circuit

has on several occasions expressed its view that post-adjudication procedures alone cannot satisfy

the fundamental purpose for which the pre-adjudication notice requirements of 5103(a) were

established. See Sanders, 487 F. 3d at 886 ("VA's duty to notify cannot be satisfied 'by various

4

After the Federal Circuit's decision in Sanders, both parties were given the opportunity to supplement their

arguments with regard to prejudicial error. See Misc. Order No. 14-07 (July 3, 2007) (en banc order). The Secretary

chose not to do so in this case.

5

Rule 28(b)(1) states in full: "The Secretary must file a brief, which must conform to the requirements of

subsection (a), but a statement of the issues or of the case need not be made unless the Secretary is dissatisfied with the

appellant's statement."

20

post-decisional communications from which a claimant might have been able to infer what evidence

the VA found lacking in the claimant's presentation,' as such post-decisional notices do not contain

the same content or serve the same purpose as § 5103(a) notification." (quoting Mayfield, 444 F.3d

at 1333-34)). The majority's attempt here to establish that the notice may be provided at any time

prior to the Board's decision–the decision we review–is clearly at odds with the Federal Circuit's

holding in Mayfield and with the purpose of section 5013(a). See ante n.2; see also Mayfield, 444

F.3d at 1333 ("The purpose of [section 5103(a)] and the corresponding regulation is to require that

the VA provide affirmative notification to the claimant prior to the initial decision in the case . . .

. [and] is not satisfied by various post-decisional communications . . . ."). The majority's view

would, in effect, define the "initial decision" as the Board decision. Given the clear statements of

the Federal Circuit in its decision in Mayfield and in its post-Mayfield decisions to the contrary,

such an interpretation is simply wrong. I do not suggest that the Court is prohibited from

considering, in a particular case, the facts that occur in the VA adjudication scheme along with other

facts in the record in order to determine, upon proper pleading by the Secretary, that despite not

receiving proper 5103(a) notice, the purpose of 5103(a) notice has not been frustrated and thus the

claim's adjudication has been essentially fair. However this Court must not ignore the importance

of pre-initial-decision section 5103(a) notice, consistently reinforced by the Federal Circuit. By

making the Board decision the point by which affirmative notice must be provided, it is the majority

that puts blinders on the Court's consideration of prejudicial error by determining that the mere

participation in the VA adjudication scheme alone should erase the prejudicial effect of a 5103(a)

notice violation.6 If Congress, in enacting section 5013(a), and the Federal Circuit, in interpreting

it, meant for such a gaping exception to the rule of prejudicial error to exist, surely it would have

referred to the administrative process in considering prejudice. However, it has not. Indeed, in its

6

See 38 U.S.C. § 5103(a) (requiring VA to provide notice to a claimant upon receipt of a "substantially

complete application" for benefits); see also 38 U.S.C. § 7105(b) (Notice of Disagreement "shall be filed within one year

from the date of mailing the notice of the result of the initial review or determination" (emphasis added)); see also 38

U.S.C. § 7105(a) ("Appellate review will be initiated by a [N]otice of [D]isagreement and completed by a [S]ubstantive

[A]ppeal after a statement of the case is furnished . . . ."). There are, in my view, three distinct stages in the VA

adjudication process: The initial decision, appellate status at the agency of original jurisdiction (which is triggered by

a Notice of Disagreement), and the appeal to the Board (which commences with the filing of the Substantive Appeal).

The Federal Circuit's Sanders holding that proper notice must be provided before the initial adjudication is, in my view,

logically within this framework.

21

decision in Mayfield, the Federal Circuit found just the opposite; it found a 5103(a) notice error

when the Board considered notices provided to Ms. Mayfield after the initial regional office decision

but before she filed her Substantive Appeal to the Board as satisfying 5103(a) notice requirements.

Sanders provides three examples of situations that, if proven by the Secretary, could rebut

the presumption of prejudice. Sanders, 487 F.3d at 889. The majority in this case subtly ignores

the requirement of reversal, instead finding that where the Secretary has not rebutted the

presumption of prejudice and the three enumerated examples do not apply, reversal may merely be

"warranted." Ante at 9. This is so because without ignoring the reversal requirement, the majority

could not attempt to create a new route to a finding of no prejudice, stating that the Court should

"consider whether the post-adjudicatory notice and opportunity to develop the case that is provided

during the extensive administrative appellate proceedings leading to the final Board decision . . .

served to render any pre-adjudicatory notice error non-prejudicial." Id. at 9-10; see ante n.2. The

Federal Circuit has had several opportunities, discussed supra, to provide additional examples that

would require reversal where a notice error exists, but has not indicated that the post-adjudicatory

process alone could serve to cure such notice deficiencies. See Wilson, 506 F.3d at 1062 ("Within

this detailed procedural scheme, section 5103(a) serves to facilitate the claim process by ensuring

'that the claimant be given the required information prior to the VA's decision on the claim and

enables the claimant to understand the process . . . .'"). The point of the prejudice analysis in

Sanders is to ensure "that the purpose of the notice was not frustrated." Sanders, 487 F.3d at 889.

I cannot agree with my colleagues that the Court can, sua sponte, look only to the post-adjudicatory

proceedings to find that the purpose of providing claimants with proper pre-adjudicatory section

5103(a) notice was not frustrated.

By expanding the recognized "examples" to the prejudice analysis beyond those endorsed

by the Federal Circuit, the majority, at a minimum, induces confusion regarding how this Court is

to apply this mysterious fourth example in determining whether a notice error is prejudicial. By

judging the prejudicial effect of inadequate notice in terms of the subsequent adjudication of the

claim, I believe the Court runs afoul of the original purpose of the duty to notify. Although the

majority refers to the Federal Circuit's recent Newhouse decision to support its view that it may

scour the record for support of a finding of no prejudice in the absence of allegations by the

22

Secretary, nowhere in the Newhouse decision, nor in Mlechick or Wilson does the Federal Circuit

abandon Sanders' command to reverse the Board's decision if the Secretary fails to fulfill his

obligation to rebut the presumption of prejudice. Nor do those decisions suggest that the Court can

use only the appellate history of a claim to find that the purpose of pre-decisional notice was

satisfied. Indeed, in the dissent from the denial of full-Court consideration in Overton, three judges

of this Court believed that the majority had improperly shifted its focus away from compliance with

the duty to notify prior to the initial adjudication. See Overton, 20 Vet.App. at 500 (en banc; Hagel,

J., Davis, J., and Schoelen, J., dissenting) ("The effect of the Court's decision is that compliance

with section 5103(a) now plays second fiddle to this Court's determination as to whether a claimant

engaged in 'meaningful participation' in the processing of the claim.").

Finally, and perhaps most significantly, the majority, after advocating their new example,

finds that it has no application in this case, rendering the exercise contained in sections A(4) and

A(5) quintessential obiter dicta. See, e.g., BLACK 'S LAW DICTIONARY 1100 (7th ed. 1999) ("A

judicial comment made during the course of delivering a judicial opinion, but one that is

unnecessary to the decision in the case and therefore not precedential."). The majority's creation of

a new example by which the Court may find a notice error non-prejudicial when that example is

neither applicable in this case nor argued by the parties, is far from necessary to the resolution of

this case. At best it can be said that the majority recognizes an issue that may someday be raised

and thus require resolution by the Court, but its attempt here to answer a question not dispositive

of the appeal renders the discussion non-precedential.

For reasons unknown to me and despite the Federal Circuit's continued insistence on

compliance with the pre-adjudicatory notice requirements of the Veterans Claims Assistance Act,

my colleagues persist in their quest to find no prejudice through a review of post-adjudicatory

procedures. As a consequence, I concur only in the result and again voice my concern with the

majority's language as it amounts to the subtle yet clear minimization of the duty to notify. In the

end, I disagree with my colleagues to the extent that they might suggest that an appellant's post-

adjudicatory participation in the overall VA appellate process could alone render a duty-to-notify

error non-prejudicial, their apparent view that the Court, in section 5103(a) notice cases, is free to

search the record for reasons not pled by the Secretary in order to find harmless error, and their

failure to properly apply the law of the Federal Circuit.

23