NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7024
HYMAN E. WILLIAMS,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Hyman E. Williams, of Little Rock, Arkansas, pro se.
Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, for respondent-
appellee. With him on the brief were Gregory G. Katsas, Assistant Attorney General,
and Jeanne E. Davidson, Director. Of counsel were Brian M. Simkin, Assistant Director;
and Martie S. Adelman and David R. McLenachen Attorneys, United States Department
of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Lawrence B. Hagel
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2006-7024
HYMAN E. WILLIAMS,
Claimant-Appellant,
v.
JAMES B. PEAKE, M.D., Secretary of Veterans Affairs,
Respondent-Appellee.
Appeal from the United States Court of Appeals for Veterans Claims in Case No. 04-
766, Judge Lawrence B. Hagel.
___________________________
DECIDED: November 24, 2008
___________________________
Before NEWMAN and LOURIE, Circuit Judges, and ALSUP, District Judge ∗
PER CURIAM.
Hyman E. Williams appeals from the judgment of the United States Court of Appeals
for Veteran Claims (“CAVC”) which affirmed the decision by the Board of Veterans’ Appeals
(“the Board”) denying Mr. Williams’ disability claim. 1 We affirm the decision of the CAVC.
OPINION
∗
The Honorable William Alsup, District Judge, United States District Court
for the Northern District of California, sitting by designation.
1
Hyman E. Williams v. R. James Nicholson, Secretary of Veterans Affairs,
No. 04-0766 (Vet. App. Oct. 5, 2005).
Mr. Williams served in the United States Army from September 19, 1961 to
September 18, 1963. On July 17, 1963 he was the victim of an unfortunate accident,
where a training device designed to simulate artillery fire accidentally discharged, lodging
objects in his arm, buttocks, and thighs. He was treated for his injuries.
In May 1999, Mr. Williams sought compensation for back and leg problems and
pains, which he stated were due to the 1963 incident. The VA Regional Office (“RO”)
denied the claim. Mr. Williams then submitted private medical records documenting
degenerative changes in the spine. In January 2000 the RO maintained its denial, finding
that the evidence did not establish a relationship between the current ailments and the
1963 incident. The Board upheld the decision of the RO. Mr. Williams, through counsel,
appealed to the CAVC and moved to set aside the Board’s decision and to remand the
matter so that a medical nexus opinion could be obtained. The Secretary joined in the
remand motion, the CAVC granted the motion in December 2002.
The medical examination was conducted in Little Rock, Arkansas on July 22, 2003.
The VA examining physician concluded that it was “very unlikely” that the present
symptoms were caused by the injuries sustained in 1963, but are likely the result of “normal
aging process.” In view of this result, the RO again denied the claim, and the Board upheld
the RO’s determination.
In appeal to the CAVC, Mr. Williams raised two issues. First, he argued that the VA
failed to provide adequate notice pursuant to 38 U.S.C. §5103(a) and 38 C.F.R.
§3.159(B)(1), in that the VA failed to notify him as to what additional evidence would be
necessary in order to show service connection. He also argued that the hearing officers
who presided over the two pre-2002 hearings at the RO and the Board failed, in violation of
2006-7024 2
38 C.F.R. §3.103(c)(2), to fully explain the issue, which eventually turned on the adequacy
of the evidence, for they did not suggest submission of further evidence.
The CAVC affirmed the Board’s decision, holding that Mr. Williams was not
prejudiced by lack of notice because he already had actual knowledge of what would be
needed in order to show service connection. The CAVC relied on its decision in Mayfield v.
Nicholson, 19 Vet. App. 103 (2005), which held that the burden to show prejudice by lack of
notice lies with the veteran. The CAVC also held that any failures in the pre-2002 hearings
were cured by the CAVC remand and the post-remand hearings at the RO and the Board.
The only issue within this court’s jurisdiction is the adequacy of notice as to what
additional evidence might support his claim. We have no authority to review the medical
findings or to find and weigh the factual questions of diagnosis, treatment, and medical
nexus. See 38 U.S.C. §7292(a) (d)(1). Mr. Williams’ appeal to this court was stayed while
we considered Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), cert. granted sub nom.
Peake v. Sanders, 128 S. Ct. 2935 (June 12, 2008). In Sanders we held that “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.” 487 F.3d at 888. The Sanders
decision overruled the CAVC’s decisions placing the burden on the veteran, such as
Mayfield, supra.
The Secretary argues that even if the Supreme Court should sustain this court’s
ruling and a presumption of prejudice is applied to notice errors, in this case there was no
notice error and therefore no presumptive prejudice. The Secretary points out that that Mr.
Williams had a full medical examination, upon remand for that purpose, and that the reason
for that examination was made known by the Board and the RO. Mr. Williams does not
2006-7024 3
state that he was unaware of the reason for the examination, which followed from the
remand motion that he initiated. The Secretary is correct that this case is not affected by
the shift to the VA of the burden when there is defective notice, for in this case there was
no lack of notice and thus no presumption of prejudice. Thus the decision of the CAVC is
affirmed.
No costs.
2006-7024 4