Frank L. Gallegos, Jr. v. James B. Peake

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO . 05-2920

FRANK L. GALLEGOS, JR., APPELLANT ,

V.

JAMES B. PEAKE , M.D.,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued September 26, 2008 Decided December 31, 2008)

Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

Paul J. Hutter, General Counsel, with whom R. Randall Campbell, Assistant General

Counsel, Carolyn F. Washington, Deputy Assistant General Counsel, and James B. Cowden, all of

Washington, D.C., for the appellee.

Before KASOLD, LANCE, and SCHOELEN, Judges.

SCHOELEN, Judge, filed the opinion of the Court. KASOLD, Judge, filed a concurring

opinion.

SCHOELEN, Judge: Before the Court is an appeal by the appellant, Frank L. Gallegos, Jr.,

of a June 16, 2005, Board of Veterans' Appeals (Board) decision that denied entitlement to service

connection for post-traumatic stress disorder (PTSD). Record (R.) at 1-16. This appeal is timely,

and the Court has jurisdiction to review the Board's decision pursuant to 38 U.S.C. §§ 7252(a) and

7266(a). For the following reasons, the Court will affirm the Board's decision.

I. BACKGROUND

The appellant served on active duty in the U.S. Army from December 1966 to January 1970.

R. at 19. His service records indicate that he lost 32 days for time served in confinement pursuant

to a military court-martial sentence. R. at 19, 176-77; see 10 U.S.C. § 972. While in service, the

appellant underwent a single treatment for "nervous tension" and "situational anxiety" attributed to

his ongoing divorce proceedings. R. at 116.

In October 1997, a clinical social worker diagnosed the appellant with PTSD and depression.

R. at 343; see also R. at 518 (clinical diagnosis of PTSD and major depressive disorder). Thereafter,

in July 2000, the appellant filed a claim seeking service connection for both disorders. R. at 555-57.

To support his claim, the appellant submitted a stressor statement in which he attested that his PTSD

originated from two rapes that he suffered while imprisoned for his court-martial sentence. R. at

556, 669. The appellant said that he did not report the incidents out of shame, and that after they

occurred, he felt suicidal, isolated, distrustful of others, and he performed his military duties poorly.

Id. He also attested that the assaults prompted him to request a transfer to Vietnam, but that the

Army sent him to Alaska instead.1 R. at 642. In Alaska, the appellant recalled, he often drank and

got into fights in order to "prove that [he] was a man and get [his] anger out." Id.

In December 2000, pursuant to the version of 38 C.F.R. § 3.304(f)2 then in effect, the VA

regional office (RO) in Denver, Colorado, sent a letter to the appellant requesting that he provide

"alternate sources of information that would assist [VA] in evaluating your claim." R. at 647. The

RO set forth examples of such evidentiary sources, including statements from service medical

personnel, "buddy" statements, accident or police reports, physical examinations conducted for

1

The record indicates that the appellant actually volunteered to transfer to Alaska in May 1967, prior to

receiving his court-martial sentence. R. at 19, 126, 176.

2

The version of 38 C.F.R. § 3.304(f) in effect prior to March 7, 2002, provided:

Service connection for post-traumatic stress disorder requires medical evidence diagnosing

the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence,

between current symptoms and an in-service stressor; and credible supporting evidence that the

claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat

with the enemy and the claimed stressor is related to that combat, in the absence of clear and

convincing evidence to the contrary, and provided that the claimed stressor is consistent with the

circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may

establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran

was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related

to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary,

and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships

of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed

in-service stressor.

38 C.F.R. § 3.304(f) (2001).

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employment or insurance purposes, medical treatment reports, letters written during service,

photographs taken during service, and pharmacy records. R. at 647-48.

The appellant underwent a VA medical examination in October 2001. R. at 750-54. Upon

review of the appellant's claims file, including letters from his family detailing postservice behavioral

changes (R. at 272-75), Charles Oppegard, M.D., opined that "[t]he symptoms [the appellant] gives

are quite consistent with a highly traumatized experience of sexual rape to a man." R. at 753. The

RO denied the appellant's claim in November 2001, finding no evidence of an in-service stressor.

R. at 759-62. The appellant appealed this decision to the Board. R. at 770, 820.

On March 7, 2002, while his claim was pending at the Board, VA published a final rule

amending 38 C.F.R. § 3.304(f). 67 Fed. Reg. 10,330 (Mar. 7, 2002). Specifically, VA added the

following to the existing text:

If a post-traumatic stress disorder claim is based on in-service personal assault,

evidence from sources other than the veteran's service records may corroborate the

veteran's account of the stressor incident. Examples of such evidence include, but are

not limited to: records from law enforcement authorities, rape crisis centers, mental

health counseling centers, hospitals, or physicians; pregnancy tests or tests for

sexually transmitted diseases; and statements from family members, roommates,

fellow service members, or clergy. Evidence of behavior changes following the

claimed assault is one type of relevant evidence that may be found in these sources.

Examples of behavior changes that may constitute credible evidence of the stressor

include, but are not limited to: a request for a transfer to another military duty

assignment; deterioration in work performance; substance abuse; episodes of

depression, panic attacks, or anxiety without an identifiable cause; or unexplained

economic or social behavior changes. VA will not deny a post-traumatic stress

disorder claim that is based on in-service personal assault without first advising the

claimant that evidence from sources other than the veteran's service records or

evidence of behavior changes may constitute credible supporting evidence of the

stressor and allowing him or her the opportunity to furnish this type of evidence or

advise VA of potential sources of such evidence. VA may submit any evidence that

it receives to an appropriate medical or mental health professional for an opinion as

to whether it indicates that a personal assault occurred.

38 C.F.R. § 3.304(f)(3) (2002).

In September 2002, the RO sent the appellant a Statement of the Case (SOC) containing the

full text of the amended regulation. R. at 804-18. In June 2003, the appellant submitted a statement

from his ex-wife, which described his substance abuse, cheating, and violent tendencies. R. at 866,

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871. That same month, the appellant testified at a Board hearing, during which his representative

cited the amended version of § 3.304(f)(3) and pointed to examples of the appellant's behavioral

changes claimed to be indicative of an in-service assault. R. at 842-56. The appellant and his

representative also discussed with the Board chairman various alternative sources of evidence that

allegedly offered support for the appellant's claim. R. at 853-55.

The Board issued a decision in December 2003 remanding the appellant's claim for further

development in light of the changes to 38 C.F.R. § 3.304(f). R. at 858-63. Citing the amended

regulation, the Board found that although "the RO noted in its November 2001 rating decision that

the veteran could establish service connection through alternate sources of evidence which document

behavioral changes after the alleged incident, the RO did not actually determine if such evidence was

present." R. at 860. Accordingly, the Board ordered the RO to afford the appellant the opportunity

to submit additional supporting evidence and to subsequently readjudicate the claim. R. at 861-62.

In January 2004, the appellant provided a statement to the RO detailing his destructive behavior

following the alleged in-service assault. R. at 875.

In a letter dated March 2004, the RO requested that the appellant submit "evidence that

[PTSD] existed from military service to the present time." R. at 883. The letter also provided

examples of evidence that "w[ould] help [VA] make [its] decision," including dates of in-service

medical treatment, "buddy" statements, statements from service medical personnel, examination

reports conducted for employment and insurance purposes, postservice medical records, and

pharmacy records. R. at 883-84. The appellant received a followup medical opinion from Dr.

Oppegard in October 2004. R. at 899-903.

In January 2005, the RO issued a Supplemental Statement of the Case (SSOC) that

readjudicated, and ultimately denied, the appellant's claim for service connection. R. at 927-33. The

following month, the appellant asked VA to provide him a copy of his service records, which he

alleged would show hospitalizations for fighting and the loss of his military driver's license on

account of bad behavior. R. at 937. The appellant's February 2005 statement also quoted verbatim

a portion of the amended version of 38 C.F.R. § 3.304(f). See id.

The Board affirmed the adverse RO determination in the June 2005 decision here on appeal.

R. at 16. Applying the amended version of § 3.304(f), the Board determined that the appellant "ha[d]

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been informed that he could submit evidence from sources other than the service records in support

of his PTSD claim." R. at 12. However, the Board noted, credible evidence did not exist to

corroborate the appellant's account of his in-service stressor. R. at 13. The Board pointed out that

the appellant's testimony alone, as a matter of law, could not establish the event, and that his service

records contained no reference to sexual assault or evidence of behavioral changes. R. at 6, 11-12

(citing Moreau v. Brown, 9 Vet.App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet.App. 163, 166

(1996)). Further, the Board stated that the appellant lacked any other form of outside evidence that

corroborated his account. R. at 8-10, 13-14. Accordingly, the Board concluded that, in the absence

of a confirmed stressor, the appellant could not receive an award of service connection for PTSD.

R. at 15.

II. CONTENTIONS OF THE PARTIES

On appeal to the Court, the appellant asserts that the March 2002 amendment of 38 C.F.R.

§ 3.304(f) is favorable to him, and that Karnas v. Derwinski, 1 Vet.App. 308 (1991), requires that

the version of an amended regulation most favorable to the claimant be applied to pending claims.

Appellant's Brief (Br.) at 4-6; Appellant's Supplemental (Supp.) Br. at 3-4. The appellant recognizes

that his argument depends on the continuing viability of the rule of retroactivity set forth in Karnas.

Appellant's Br. at 6. However, he contends that, while overruled in other respects, Karnas remains

the law in cases where a regulation is amended in a manner favorable to the veteran while the claim

is pending. Appellant's Supp. Br. at 3-4. The appellant further argues that, should the Court find

that the amended version of 38 C.F.R. § 3.304(f) applies to his claim, it should also determine that

VA failed to provide notice that complied with the amended regulation. Appellant's Br. at 6-13;

Reply Br. at 1-8. According to the appellant, after VA promulgated the amended version of

38 C.F.R. § 3.304(f), it was required to advise him that he could submit sources of evidence other

than service records or evidence of postassault behavioral changes to corroborate his account of the

in-service stressor; to inform him of the types of evidence that could constitute "credible supporting

evidence" of a stressor under that regulation; and to readjudicate his claim for service connection in

light of any new evidence submitted. See Appellant's Br. at 6-9; Reply Br. at 1-5. He believes that

VA neglected to undertake these actions. Appellant's Br. at 6. The appellant asserts that this error

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prejudiced him in the adjudication of his claim, because "[i]f [he] had been given the required

notification, then the record may well have contained the necessary credible supporting evidence as

contemplated by 38 C.F.R. § 3.304(f)(3)." Appellant's Br. at 13.

The Secretary agrees that the amended version of § 3.304(f) applies to the appellant's claim

(Secretary's Supp. Br. at 10), though his reasoning differs from that of the appellant. The Secretary

disputes that the Court's holding in Karnas, supra, may be employed to determine whether an

amended regulation has impermissible retroactive effects when applied to a pending claim, as he

argues that Karnas was overruled by the United States Court of Appeals for the Federal Circuit

(Federal Circuit) in Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002), Bernklau v. Principi,

291 F.3d 795 (2002), and Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Secretary's Supp. Br.

at 5. Rather, under the test set forth by the Federal Circuit in Princess Cruises, Inc. v. United States,

397 F.3d 1358 (Fed. Cir. 2005), which the Secretary argues is the appropriate test to determine

whether a regulation has an impermissibly retroactive effect, the amended version of § 3.304(f) may

be properly applied to the appellant's claim. Id. at 2, 9-10 (citing Rodriguez v. Peake, 511 F.3d 1147

(Fed. Cir. 2008)). Moreover, the Secretary alleges, VA did in fact apply the amended regulation to

the appellant's claim: he was informed of the alternative forms of evidence that could be used to

establish an in-service stressor in the September 2002 SOC and December 2003 Board remand order,

and his claim was subsequently readjudicated in the January 2005 SSOC. Secretary's Br. at 11-13.

The Secretary also contends that the appellant demonstrated actual knowledge of the contents of the

amended § 3.304(f), thereby rendering any notice defect that may have occurred nonprejudicial. Id.

at 11-12 (citing Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), cert. granted sub nom.,

Peake v. Sanders, 128 S. Ct. 2935 (2008)).

On June 12, 2008, the Court ordered supplemental briefing to address the impact of the

Federal Circuit's decision in Rodriguez, supra, which was decided after initial briefing. In particular,

the Court requested that the parties analyze what impact, if any, the Federal Circuit's holding in

Rodriguez has on the rule of retroactivity set forth in Karnas, supra.

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III. ANALYSIS

The Court recognizes, as an initial matter, the questions raised by the parties with regard to

the continuing viability of the Court's holding in Karnas, supra. However, it is not necessary to

resolve those matters here today, as both parties agree that the amended version of 38 C.F.R.

§ 3.304(f) may be properly applied to the appellant's claim. As an Article I Court, we are "not

constitutionally bound by the case or controversy restraints on the judicial power of Article III

courts." Nolan v. Nicholson, 20 Vet.App. 340, 348 (2006) (citing 38 U.S.C. § 7251; Mokal v.

Derwinski, 1 Vet.App. 12, 14 (1990)). As a matter of policy, however, the Court adheres to the case

or controversy requirements followed by the Article III courts, and thus will not decide hypothetical

cases. Id. (citing Mokal, 1 Vet.App. at 15); see United States v. Johnson, 319 U.S. 302, 305 (1943)

(noting that Article III requires an "'honest and actual antagonistic assertion of rights' to be

adjudicated" (quoting Chicago & G.T. Ry. Co. v. Wellman, 143 U.S. 339, 345 (1892))).

Accordingly, the only question remaining before the Court is whether the appellant did, in

fact, receive the benefit of the regulatory changes to § 3.304(f). In order to answer this question, we

must first determine what, specifically, is required of VA under the revised regulation and then

assess whether VA satisfied those requirements.

A. The 38 C.F.R. § 3.304(f)(3) Notice Requirement

With the addition of § 3.304(f)(3) in March 2002, VA codified its existing internal policies

that provided for additional development assistance in claims for PTSD based on personal assault.

See M21-1 Manual, pt. III, para. 5.14(c) (Feb. 20, 1996). By doing so, VA recognized that "in

personal assault cases[,] the Secretary has undertaken a special obligation to assist a claimant . . . in

producing corroborating evidence of an in-service stressor." Patton v. West, 12 Vet.App. 272, 280

(1999). In accordance with this "special obligation," § 3.304(f)(3) places a heightened burden of

notification on VA in claims for service connection for PTSD based on in-service personal assault.

First, the RO must inform the claimant that he may submit alternative forms of evidence, that is,

evidence other than service records, to corroborate his account of an in-service assault, and suggest

potential sources for such evidence. 38 C.F.R. § 3.304(f)(3); see Bradford v. Nicholson, 20 Vet.App.

200, 206 (2006); Patton, 12 Vet.App. at 281-82 (noting that the RO must send the claimant a

"special PTSD personal-assault letter" and questionnaire to assist VA in identifying alternative

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sources of evidence to establish an in-service stressor (citing M21-1, pt. III, para. 5.14(c)(6)-(7))).

The claimant should also be notified that, alternatively, evidence of behavioral changes following

the alleged in-service assault may constitute "credible supporting evidence of the stressor" under

§ 3.304(f)(3). 38 C.F.R.§ 3.304(f)(3); see Bradford, 20 Vet.App. at 206. Second, VA must assist

the claimant in the submission of alternative sources of evidence, by providing additional time for

the claimant to submit such evidence after receipt of the personal-assault letter and, where

appropriate, by obtaining evidence on the claimant's behalf. 38 C.F.R.§ 3.304(f)(3); Patton,

12 Vet.App. at 282.

In the Court's view, the notification requirement of § 3.304(f)(3) is akin to the notification

requirement set forth in the VCAA. In November 2000, Congress enacted the Veterans Claims

Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (codified as amended at

38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126). Section 5103 of the VCAA, codified

at 38 U.S.C. § 5103, imposes a "duty of affirmative notification on VA," requiring that the Agency

inform the claimant "prior to the initial decision in the case as to the evidence that is needed."

Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (citing Paralyzed Veterans of Am. v.

Sec'y of Veterans Affairs, 345 F.3d 1334, 1344-45 (Fed. Cir. 2003); 66 Fed. Reg. 45,620 (Aug. 29,

2001)); see H.R. REP. 106-781, at 9 (2000), 2000 WL 1097456. In Mayfield, the Federal Circuit

noted that the purpose of section 5103 notification is "to ensure that the claimant's case is presented

to the initial decisionmaker with whatever support is available." Mayfield, 444 F.3d at 1333; see

146 CONG . REC. H9912-01, H9914 (Oct. 17, 2000), 2000 WL 1532572.

Like 38 U.S.C. § 5103, § 3.304(f)(3) contemplates that a claimant seeking service connection

for PTSD based on in-service assault will receive the required notification and an opportunity to

submit evidence prior to the adjudication of his claim. In reaching this conclusion, the Court notes

the language of the regulation itself, which states that

VA will not deny a post-traumatic stress disorder claim that is based on in-service

personal assault without first advising the claimant that evidence from sources other

than the veteran's service records or evidence of behavior changes may constitute

credible supporting evidence of the stressor and allowing him or her the opportunity

to furnish this type of evidence or advise VA of potential sources of such evidence.

38 C.F.R. § 3.304(f)(3) (emphasis added). Similarly, in VA's comments accompanying the

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publication of the final rule in the Federal Register, VA explained the addition of the language in

§ 3.304(f)(3) as "necessary to ensure that VA does not deny such claims simply because the claimant

did not realize that certain types of evidence may be relevant to substantiate his or her claim."

67 Fed. Reg. at 10,300. Thus, because, like the VCAA, § 3.304(f)(3) provides for preadjudicatory

notification with the hope that the claimant can be an informed participant in his claim and that his

claim will be adjudicated in light of all potentially relevant evidence, see 67 Fed. Reg. at 10,331, the

Court believes that VA's compliance with that provision is properly and analogously guided by the

Federal Circuit's decision in Mayfield, supra.

That decision provides that VA's

duty of affirmative notification is not satisfied by various post-decisional

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

the VA found lacking in the claimant's presentation.

....

This is not to say that . . . notification must always be contained in a single

communication from the VA . . . . What the statute and regulation require is that the

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

and in a form that enables the claimant to understand the process, the information

that is needed, and who will be responsible for obtaining that information.

Mayfield, 444 F.3d at 1333; see also Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007);

Pelegrini v. Principi, 18 Vet.App. 112, 119-20 (2004).

The Court acknowledges that while 38 U.S.C. § 5103 requires notification prior to the initial

adjudication of the claim, "[u]pon receipt of a complete of substantially complete application," see

Pelegrini, 18 Vet.App. at 120, this timing may not be feasible in claims for service connection for

PTSD based on an allegation of in-service assault. Rather, it may not be evident until after the

initial adjudication of a claim that the alleged stressors relate to a personal assault. Therefore, unlike

the notification requirement of 38 U.S.C. § 5103, § 3.304(f)(3) is not applicable to a claim for

service connection for PTSD until VA knows or has reason to know of the existence of evidence

raising the possibility of an in-service assault. At that point, VA must (1) furnish a "deliberate act

of notification" informing the appellant of the content of the amended law and of his ability to submit

new evidence in accordance with that provision, and (2) subsequently adjudicate the appellant's

claim in light of any new evidence submitted. See Mayfield, 444 F.3d at 1333. This notification

9

may be properly issued either before or after the initial adjudication of the veteran's claim, contingent

upon the timing of VA's knowledge that the claim may be based on an in-service assault. The Court

reaches this conclusion by adopting by analogy the remedy for timing defects set forth in Prickett

v. Nicholson, 20 Vet.App. 370, 376 (2006). In Prickett, the Court recognized that, where strict

adherence to VCAA timing-of-notification requirements is not possible, "VA may cure timing

defects through compliance with proper remedial measures[, including] . . . . (1) [t]he issuance of

a fully compliant VCAA notification, followed by (2) readjudication of the claim" (citing Mayfield,

444 F.3d at 1333-34; Pelegrini, 18 Vet.App. at 122-24). Like Prickett, strict compliance with

§ 3.304(f)(3)'s preadjudicatory notification requirement may not be possible here, as VA may lack

evidence of an alleged in-service assault until after one or more adjudications of the appellant's

claim. However, where VA has adjudicated the claim prior to providing the notification required

by § 3.304(f)(3), VA may cure that defect by furnishing a fully compliant notification and

readjudicating the appellant's claim in light of any new evidence submitted. See Mayfield, 444 F.3d

at 1333-34; Prickett, supra; Pelegrini, 18 Vet.App. at 122-24.

B. VA's Compliance with § 3.304(f)(3)

The Board's determination that a communication satisfies the notice requirement of 38 U.S.C.

§ 5103 is a factual finding that the Court reviews under the "clearly erroneous" standard of review.

See Prickett, 20 Vet.App. at 378. The Court in this case must make a similar factual inquiry, namely,

whether a given communication provides adequate notification to the appellant under 38 C.F.R.

§ 3.304(f)(3). As such, we believe that, as in Prickett, the Court should employ the "clearly

erroneous" standard of review when reviewing the Board's determination that a communication

fulfills the § 3.304(f)(3) regulatory notice requirement. VA's failure to provide compliant notice may

constitute remandable error. See Quartuccio v. Principi, 16 Vet.App. 183, 187-88 (2002).

Analyzing the appellant's claim under the standards delineated in Mayfield, supra, the Court

holds that VA did not provide the appellant adequate notice under the terms of the amended

§ 3.304(f). The Court recognizes that the appellant could not receive § 3.304(f)(3) notification prior

to the initial adjudication of his claim, because when the amended regulation took effect in March

2002, his claim had already been denied by the RO (R. at 759-62) and was pending on appeal to the

Board. Once the amended regulation took effect, however, VA was obligated to issue fully

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compliant notice and readjudicate the appellant's claim in light of any new evidence that had been

submitted. Mayfield, 444 F.3d at 1333-34; Prickett, supra; Pelegrini, 18 Vet.App. at 122-24. VA

failed to do so in this case.

From the text of its decision, it is not entirely clear which documents the Board relied upon

as providing the requisite notice under § 3.304(f)(3). Rather, the Board stated, without elaboration,

that "[t]he veteran has been informed that he could submit evidence from sources other than the

service records in support of his PTSD claim" (R. at 12), and that "the RO made an attempt to verify

the veteran's alleged stressors, but there is no credible supporting evidence to corroborate his

statements regarding the alleged sexual trauma" (R. at 13). Upon review of these factual

determinations, however, the Court finds that they are clearly erroneous.

To be adequate, notice – whether in the context of the VCAA or not – has two core elements:

(1) It must give the appellant notice of the content of the law, and (2) explicitly provide the claimant

the opportunity to utilize that information by submitting further evidence. See Mayfield, 444 F.3d

at 1333 (noting that predecisional notification "is required to have different contents from the post-

decisional notices, and it is designed for different purposes – to ensure that the claimant's case is

presented to the initial decisionmaker with whatever support is available"); see also Wilson and

Pelegrini, both supra. Additionally, as noted above, the Federal Circuit established in Mayfield that

VA satisfies its notification duties only by providing a "deliberate act of notification" prior to the

adjudication of the veteran's claim, "not an assemblage of bits of information drawn from multiple

communications issued for unrelated purposes." Mayfield, 444 F.3d at 1333. The various

communications in the record do not satisfy these criteria.

Although the September 2002 SOC transcribed the text of the amended § 3.304(f) (R. at 813-

14), by its nature, an SOC cannot provide compliant notification under that provision. Rather, the

SOC is a decisional document that provides notification to the veteran in the context of an

adjudication of his claim. Thus, the timing of such a communication prevents the Court from

plausibly construing it as the "deliberate act of notification" contemplated by Mayfield. Further, the

contents of the September 2002 SOC are also deficient, in that they did not explicitly advise the

appellant that § 3.304(f) had been recently amended, nor did they inform him that he could submit

new evidence pursuant to the changed provision. See R. at 804-18. The December 2003 Board

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remand order (R. at 858-863) and the January 2005 SSOC (R. at 926-33) suffer similar defects, as

both are also decisional documents. Moreover, the January 2005 SSOC contained no mention of the

amended regulation. The March 2004 letter (R. at 883-87), while not a decisional document, is not

content-compliant notice under § 3.304(f)(3). Like the September 2002 SOC and the January 2005

SSOC, the March 2004 letter did not inform the appellant of the amended terms of § 3.304(f)(3) or

give him the opportunity to furnish additional evidence in accordance with that provision. The Court

therefore finds that VA did not provide adequate notice to the appellant under 38 C.F.R.

§ 3.304(f)(3).

The Court, however, is statutorily obligated to "take due account of the rule of prejudicial

error."3 38 U.S.C. § 7261(b)(2); Newhouse v. Nicholson, 497 F.3d 1298, 1302-03 (Fed. Cir. 2007);

Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). An error is prejudicial when it "affects

a substantive right that a statutory or regulatory provision was designed to protect" and "affects the

essential fairness of the adjudication." Overton v. Nicholson, 20 Vet.App. 427, 434-35 (2006) (citing

McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984); Intercargo Ins. Co. v. United

States, 83 F.3d 391 (Fed. Cir. 1996); Parker v. Brown, 9 Vet.App. 476 (1996)). In order for the

Court to find that a notice error is not prejudicial, it must find that, "despite the error, the

adjudication was nevertheless essentially fair." Overton, 20 Vet.App. at 435 (citing McDonough,

supra).

In this case, it is evident that VA's failure to provide notice in accordance with 38 C.F.R.

§ 3.304(f)(3) did not constitute prejudicial error. Assuming arguendo that the appellant put forth

sufficiently specific allegations of prejudice (see Appellant's Br. at 13), the Court holds that VA has

rebutted those allegations and demonstrated that no prejudice resulted from the § 3.304(f)(3) notice

error. At several points in the record, the appellant demonstrated his actual knowledge of the

amended provisions of § 3.304(f) and his ability to submit supporting evidence thereunder. See

Sanders, 487 F.3d at 889 (holding that the Secretary may demonstrate that an error is nonprejudicial

by a showing that "the purpose of the notice was not frustrated, e.g., by demonstrating . . . that any

3

Although our concurring colleague would hold that a decisional document can provide notice that complies

with the regulation, the guidance provided by the Federal Circuit in Mayfield makes clear that notice is not properly

provided through this type of document. Accordingly, the effect of relevant information in decisional documents is better

analyzed when dealing with the issue of prejudice.

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defect was cured by actual knowledge on the part of the claimant"); Overton, 20 Vet.App. at 438-39

(finding that the actions of an attorney could be attributed to his client when assessing prejudice in

the notice error context). During his June 2003 hearing, for example, the appellant's representative

read the text of § 3.304(f)(3) aloud and remarked: "Through Mr. Gallegos' testimony today[,] we're

going to show that he did have a dramatic behavior change after his incident when he was sexually

assaulted while serving in the stockade." R. at 843-44. The appellant then proceeded to provide

testimony on this issue, citing several examples of behavioral changes alleged to have followed the

assault, and also discussed alternative sources of evidence potentially supportive of his claim. R.

at 846-55. The appellant's February 2005 statement also quoted verbatim a portion of the amended

version of 38 C.F.R. § 3.304(f). R. at 937. Like the June 2003 hearing testimony, this statement

illustrates the appellant's actual knowledge of his ability to submit evidence of behavioral changes

to corroborate his account of the in-service assault, and compels a finding that VA's failure to

provide adequate notice pursuant to § 3.304(f)(3) was not prejudicial to his claim. See Sanders and

Overton, both supra.

Moreover, in December 2003, the appellant received a Board remand for the specific purpose

of affording him the opportunity to support additional evidence in light of the changes to § 3.304(f).

R. at 861-62. He subsequently submitted new evidence in support of his claim. See, e.g., R. at 875.

The Court recognizes that a decisional document such as the December 2003 remand order cannot

serve as the "deliberate act of notification" contemplated by Mayfield, 444 F.3d at 1333. However,

because it contained the full text of the amended regulation (R. at 859-60) and afforded the appellant

the opportunity to submit further evidence in accordance with the new provision, the Board remand

order is a factor to be considered when concluding that there was no prejudicial error in this case.

Ultimately, the record makes clear that the appellant knew what type of evidence, pursuant to the

revised regulation, could be submitted to substantiate his stressor, that he was aware that he could

submit such evidence, and that he did furnish additional evidence in support of his claim. Therefore,

the Court cannot hold that the process is "essentially unfair" simply because the evidence submitted

was ultimately found by the Board to be insufficient to corroborate his stressor and prove his claim.

Overton, 20 Vet.App. at 435. As such, the June 2005 Board decision must be affirmed on appeal.

See 38 U.S.C. § 7261(b)(2); Newhouse and Conway, both supra.

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IV. CONCLUSION

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

record, the Board's June 16, 2005, decision is AFFIRMED.

KASOLD, Judge, concurring: I agree with the majority's determination that Mr. Gallegos

had actual knowledge of the amended provisions of 38 C.F.R. § 3.304(f)(3) and of the kinds of

evidence he could present in support of his claim. I also agree with the majority's determination that

the SOC issued to Mr. Gallegos could not provide adequate notice because it did not notify him that

he could submit the additional evidence suggested by § 3.304(f)(3). However, as discussed below,

I do not believe documents that are part decisional in nature can never provide the advice required

by § 3.304(f)(3), and, in this instance, I believe a 2003 Board remand order fulfilled all the

substantive advice requirements of § 3.304(f)(3).

Although I generally agree that the advice required by § 3.304(f)(3) is "akin to the

notification requirements set forth in the VCAA" (emphasis added), I do not believe the similarity

requires the strict application of the holding in Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir.

2006)[hereinafter Mayfield II] that a decisional document never can serve to provide the notice

required by 38 U.S.C. § 5103(a). Unlike section 5103(a) notice, which is to be provided upon receipt

of a completed or substantially completed application, the advice required by § 3.304(f)(3) only

needs to be provided before the Secretary denies a claim. It is axiomatic that a claim is not finally

denied until a final Board decision is rendered. 38 U.S.C. § 7104; Bingham v. Nicholson, 421 F.3d

1346, 1348-49 (Fed. Cir. 2005). This is not to say that the advice required by § 3.304(f)(3) should

not be provided at the earliest time and before an initial denial of the claim, but the regulation should

not be read to mean that when a mistake is made it cannot be corrected by providing the required

advice in a SOC or Board remand order, along with notice that the alternate evidence may yet be

submitted, and thereafter followed by another decision on the claim by the agency of original

jurisdiction (AOJ). See Prickett v. Nicholson, 20 Vet.App. 370, 377 (2006).

Further, section 5103(a) necessitates "notice" how to substantiate a claim and who should

provide what, if anything, see Mayfield II, supra, whereas § 3.304(f)(3) requires the Secretary to

"advise" the claimant of alternative sources of evidence. An SOC is, by statute, a statement that

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provides the claimant 1) a summary of the evidence, 2) a cite to pertinent statutes and regulations

and a discussion of how each affected the Secretary's decision, and 3) a decision on each issue and

the reasons for such decision. 38 U.S.C. § 7105 (d)(1). Thus, although an SOC is a decisional

document, it is also a document that is intended to advise the claimant how regulations and statutes

affected the decision. I see no reason why the advice required by § 3.304(f)(3), if erroneously not

provided prior to the initial decision on the claim, cannot be provided in the SOC sufficient to satisfy

the requirements of that section, when the claimant is further advised that he can still submit the

alternate evidence and the matter is readjudicated by the AOJ if and when such evidence is

submitted, and I do not believe we should impose a per se rule that the SOC never can suffice to

correct a timing error under § 3.304(f)(3).

Similarly, I see no reason why a Board remand order cannot satisfy the content-advice

requirements of § 3.304(f)(3), and in this instance, I believe it did so. Specifically, a 2003 Board

remand order specifically advised Mr. Gallegos of the forms of alternative evidence that he could

submit, and provided the text of and a citation to § 3.304(f)(3). R. at 859-60. It also ordered that

the RO "afford the veteran the opportunity to submit any additional evidence in support of his claim

for service connection for PTSD," adding that Mr. Gallegos "is advised that this information is

necessary to obtain supportive evidence of the stressful events and that he must be as specific as

possible." R. at 61. The 2003 Board remand order provided all of the advice required by

§ 3.304(f)(3), and it was followed by continued development of the evidence and another decision.

There simply is no reason to issue a per se rule to the effect that documents that are in-part decisional

may not also satisfy the advice requirement of § 3.304(f)(3).

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