Wilson v. Mansfield

United States Court of Appeals for the Federal Circuit

2007-7099

DOUGLAS M. WILSON,

Claimant-Appellant,
v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. On the brief were Peter D. Keisler, Acting Attorney General,
Jeanne E. Davidson, Director, Brian M. Simkin, Assistant Director, and Phyllis Jo
Baunach, Trial Attorney. Of counsel on the brief were Michael J. Timinski, Deputy
Assistant General Counsel, and Michael G. Daugherty, Attorney, United States
Department of Veterans Affairs.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit

2007-7099

DOUGLAS M. WILSON,

Claimant-Appellant,

v.

GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: October 15, 2007
___________________________

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit
Judge.

DYK, Circuit Judge.

Appellant Douglas M. Wilson (“Wilson”) appeals from a decision of the Court of

Appeals for Veterans Claims (“Veterans Court”). The Veterans Court affirmed a

decision of the Board of Veterans’ Appeals (“Board”) denying Wilson’s claim for service

connection for a psychiatric disability. Wilson claims that the Department of Veterans

Affairs (“VA”) failed to provide the notice required by 38 U.S.C. § 5103(a) (2000). We

affirm.

BACKGROUND

Wilson served on active duty in the United States Marine Corps from June 1964

to March 1974. He served two tours of combat duty in Vietnam, where he “experienced

stressful events in service,” J.A. at 56, including seeing his colleagues killed and
sustaining a shrapnel injury to his head. Wilson explained to a VA physician who

examined him that these experiences left him with “constant ruminations about

Vietnam,” dreams of being shot at, poor memory, and headaches exacerbated by

anxiety. J.A. at 60. The physician found that, despite these symptoms, Wilson did not

meet the full criteria for a diagnosis of post-traumatic stress disorder (“PTSD”).

In a January 1998 rating decision, the VA regional office (“RO”) denied Wilson’s

claim for service connection for “a psychiatric disability to include PTSD and for memory

loss.” J.A. at 40. Wilson filed a notice of disagreement (“NOD”) in January 1998. The

RO issued a statement of the case (“SOC”) in June 1998, and Wilson perfected his

appeal in July 1998. In a February 2004 decision the Board denied service connection.

Pursuant to a joint motion for remand, which reflected the parties’ agreement that the

Board’s decision failed to set forth sufficient reasons and bases for its denial of service

connection of a psychiatric disorder other than PTSD, the Veterans Court in December

2004 vacated and remanded that denial to the Board for readjudication. Also pursuant

to the parties’ stipulation, the Veterans Court dismissed Wilson’s appeal with regard to

the service-connection claims for PTSD and memory loss.

By a letter dated January 18, 2005, Wilson’s counsel requested that the Board

remand the case to the RO “for review and preparation of a Supplemental Statement of

the Case.” J.A. at 45. She further requested: “If you determine there is significant

negative evidence on a material issue in this claimant’s record, please let my client

know what this evidence is and what types of evidence would aid in rebutting this

negative evidence and thus substantiate these claims.” Id.

2007-7099 2
 On February 11, 2005, the Board denied Wilson’s claim for service connection

for a psychiatric disability other than PTSD. On appeal, the Veterans Court affirmed. In

response to Wilson’s argument that the VA violated its duty to provide adequate notice

pursuant to 38 U.S.C. § 5103(a), the Veterans Court stated that “VA was not required to

analyze the evidence gathered and inform the appellant of the inadequacy of his

submissions.” Wilson v. Nicholson, Vet. App. No. 05-0566, slip op. at 2 (Oct. 24, 2006).

The court explained that the “duty to notify deals with evidence gathering, not the

analysis of already gathered evidence.” Id. It concluded that “appellant is not entitled to

an advisory opinion from the Board as to the adequacy of his evidence prior to its formal

decision.” Id., slip op. at 3. Citing its recent decision in Locklear v. Nicholson, 20 Vet.

App. 410 (2006), the court reaffirmed its rejection of the argument that section 5103(a)

requires what it characterized as a “predecisional adjudication” of the claimant’s case.

Wilson v. Nicholson, Vet. App. No. 05-0566, slip op. at 2.

Wilson timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C.

§ 7292(a).

DISCUSSION

I

This case involves issues as to the scope of section 5103(a), which obligates the

VA to notify claimants of what information and evidence they must submit to

substantiate their claims. It provides:

Upon receipt of a complete or substantially complete application, the
Secretary shall notify the claimant and the claimant’s representative, if
any, of any information, and any medical or lay evidence, not previously
provided to the Secretary that is necessary to substantiate the claim. As
part of that notice, the Secretary shall indicate which portion of that
information and evidence, if any, is to be provided by the claimant and

2007-7099 3
 which portion, if any, the Secretary . . . will attempt to obtain on behalf of
the claimant.

38 U.S.C. § 5103(a). The regulation implementing this statute tracks the statutory text

and imposes no additional notice obligation on the VA. See 38 C.F.R. § 3.159(b)

(2007). 1

Wilson does not argue that he received inadequate notice when he initially filed

his claim with the RO. 2 However, Wilson contends that the VA violated its duty of notice

under section 5103(a) following remand of his case from the Veterans Court to the

Board. He contends that, upon remand from the Veterans Court, the Board was

required under section 5103(a) to provide him with additional, specific notice that would

provide him with the Board’s “pre-decisional assessment of the evidence.” Appellant’s

Br. at 14. Wilson’s claim is essentially twofold. First, he argues that the duty imposed

by section 5103(a) is not limited to providing notice after the initial filing of a “complete

or substantially complete application” but continues throughout the claim process.

Second, Wilson contends that the notice required by section 5103(a) is specific notice of

what evidence is missing—that the VA must, at least upon request, “share its pre-

1
Wilson contends that another regulation, 38 C.F.R. § 3.103(a), compels
his interpretation of the statute. We see nothing in that regulation, which contains a
general statement of procedural policy for the VA claims process, that is relevant to the
interpretation of the plain language of section 5103(a).
2
In its 2005 decision, the Board determined that a February 2001 letter
from the RO to the claimant provided the requisite notice in connection with Wilson’s
initial filing. That letter explained what information and evidence was needed to
substantiate Wilson’s service-connection claim, what information Wilson needed to
submit, and what information the VA would obtain on his behalf. The Veterans Court
agreed with the Board’s conclusion that this notice was sufficient. Wilson does not
challenge this aspect of the court’s decision on appeal.

2007-7099 4
decisional assessment of the evidence.” Appellant’s Br. at 14. We reject both

arguments.

Wilson is incorrect that section 5103(a) applies throughout the claim process.

Under the plain language of the statute, the notice obligation is triggered by the filing of

a “complete or substantially complete application.” The statutory language does not

suggest that the notice required extends beyond this filing. Contrary to Wilson’s

argument, the “previously provided” language does not indicate that the duty extends

throughout the claim process. The legislative history of section 5103(a) confirms that it

does not. Section 5103(a) was enacted as part of the Veterans Claims Assistance Act

of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (“VCAA”). The purpose of that statute,

according to its legislative history, is “to reinstate VA’s traditional practice of assisting

veterans at the beginning of the claims process.” S. Rep. No. 106-397, at 22 (2000).

Our decisions also have confirmed that section 5103(a) is intended “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.”

Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (“Mayfield II”); see also

Sanders v. Nicholson, 487 F.3d 881, 886 (Fed. Cir. 2007) (citing Mayfield II, 444 F.3d at

1333); Hartman v. Nicholson, 483 F.3d 1311, 1314 (Fed. Cir. 2007) (citing Mayfield II,

444 F.3d at 1333).

In Mayfield II, the Board had determined that the notice requirement of section

5103(a) was satisfied by “three post-decisional communications with [the claimant],”

including a notice of decision and two statements of the case. 444 F.3d at 1334. We

held that this determination was inconsistent with the statute, which requires notification

2007-7099 5
“prior to the initial decision on the claim, not afterwards.” Id. at 1333. Although the

notice does not have to be contained in a single document, all of the required

information must be given to the claimant sufficiently in advance of the initial RO

decision to enable the claimant to develop his case. See id. In this way section 5103(a)

“ensure[s] that the claimant’s case is presented to the initial decisionmaker with

whatever support is available.” Id. (emphasis added).

Following Mayfield II, we specifically held in Hartman that section 5103(a) does

not apply to proceedings that take place after the RO’s initial decision. 483 F.3d at

1314-15. In that case the claimant had filed a NOD after the RO awarded him service

connection but established an effective date later than the one to which the veteran

believed he was entitled. Id. at 1313-14. The claimant argued that, upon filing his

NOD, the VA was required to provide him notice under section 5103(a). Id. at 1314.

We rejected this argument, because “[t]he filing of a notice of disagreement takes place

after, not prior to, the regional office’s decision.” Id.

Wilson is also incorrect in arguing that section 5103(a) is not satisfied by generic

notice and requires specific notice of the missing evidence with respect to a particular

claim. The statute on its face does not address the level of required detail, stating only

that the notice must identify “any information, and any medical or lay evidence, not

previously provided to the Secretary that is necessary to substantiate the claim.” 38

U.S.C. § 5103(a). The legislative history of section 5103(a) reveals that Congress

intended this language to provide an “objective test for the types of evidence that could

be useful to the Secretary in deciding the claim.” 146 Cong. Rec. H9912, 9914 (daily

ed. Oct. 17, 2000) (Explanatory Statement on H.R. 4864, As Amended) (emphasis

2007-7099 6
added). Plainly the notice must identify the information and evidence necessary to

substantiate the particular type of claim being asserted by the veteran (which we refer to

here as “generic notice”), but there is no indication that Congress intended to require an

analysis of the individual claim in each case. Indeed, this court already has rejected the

argument that section 5103(a) requires the VA “to identify with specificity the evidence

necessary to substantiate the claim.” Paralyzed Veterans of Am. v. Sec’y of Veterans

Affairs, 345 F.3d 1334, 1347 (Fed. Cir. 2003). In Paralyzed Veterans, four veterans’

advocacy groups challenged the validity of several regulations implementing the VCAA.

The petitioners objected to 38 C.F.R. § 3.159(b) on the ground that it was inconsistent

with section 5103(a), in part because it did not require VA to provide specific notice to

claimants. Paralyzed Veterans, 345 F.3d at 1347. In refusing to hold the regulation

invalid for this reason, we stated that “the regulation is clearly consistent with the

statute, and its requirements are both reasonable and sufficient.” Id. at 1348.

Finally, while we think that section 5103(a) must be interpreted as requiring only

generic notice at the outset, even if the statute were ambiguous, we would be required

to defer to the VA’s interpretation under Chevron U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 843-44 (1984) (holding that “a court may not substitute its

own construction of a statutory provision for a reasonable interpretation made by the

administrator of an agency”). The Secretary of Veterans Affairs has interpreted section

5103(a) as limited to the provision of notice at the outset of the process and as requiring

only generic notice. During the promulgation of 38 C.F.R. § 3.159(b), commenters

proposed that the regulation “should state in more specific detail what will be required to

be contained in every notice to the claimant on what is needed to establish entitlement

2007-7099 7
for an individual claim.” Duty To Assist, 66 Fed. Reg. 45,620, 45,622 (Aug. 29, 2001).

In rejecting this proposal, VA explained that “the statutory notice required by the VCAA

occurs at an early point in the claims process when . . . VA does not yet know what

kinds of specific evidence to try to obtain on behalf of the claimant.” Id. The Secretary

similarly rejected a proposal for the regulation to provide that “if VA receives evidence

that is inadequate to substantiate the claim, VA should contact the claimant and give

him or her the opportunity to correct the inadequacy or bolster the evidence.” Id. at

45,623. In rejecting the contention that the statute requires such ongoing and specific

notification, the Secretary explained that “[w]hether all of this relevant evidence is

sufficient to substantiate the claim is a determination that is not made until the claim is

adjudicated.” Id. Clearly, then, the Secretary has interpreted section 5103(a) to require

only a generic notice after the initial claim for benefits has been filed. Thus even if the

statute itself did not speak directly to the level of specificity required in the notice, we

would be required under Chevron to defer to the Secretary’s reasonable interpretation in

that regard.

The February 2005 letter from Wilson’s counsel, requesting that the Board “let

[Wilson] know what . . . types of evidence would aid in rebutting . . . negative evidence

and thus substantiate these claims,” J.A. at 45, does nothing to alter the situation.

Whether or not the claimant requests a detailed notice pursuant to section 5103(a) at

later stages of the claim process, there is no obligation under that provision to provide

one.

2007-7099 8
 II

Wilson asserts that this interpretation of the statute “permits the VA to evade its

obligation ‘to analyze the evidence gathered and inform the appellant of the inadequacy

of his submissions.’” Appellant’s Br. at 16. He argues that such an interpretation is

inconsistent with the “uniquely pro-claimant nature of the veterans compensation

system.” Hensley v. West, 212 F.3d 1255, 1262 (Fed. Cir. 2000); see also Hodge v.

West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This argument overlooks the many

statutory and regulatory provisions that do apply to VA’s actions after an initial RO

decision, and that provide the claimant with notice as to why his claim was rejected and

an opportunity to submit additional relevant evidence. Indeed, the existence of other

statutes—including 38 U.S.C. §§ 5104(b) and 7105(d)(1), discussed below—requiring

specific notice at other points during the claim adjudication process strongly suggests

that section 5103(a) was not intended to sweep as broadly as appellant contends.

After an initial rejection by the RO of a claim for benefits, the VA must notify the

claimant and provide a statement of the reasons for the decision and a summary of the

evidence considered. 38 U.S.C. § 5104; see also 38 C.F.R. § 3.103(b)(1). At that point

the claimant has one year in which to file an NOD under 38 U.S.C. §§ 7105(a) and

7105(b)(1). If the claimant does file an NOD, the VA is required to “reexamine the claim

and determine whether additional review or development is warranted.” 38 C.F.R. §

19.26(a). If the VA does not grant the claim based on this additional development, it is

then required to supply the claimant with an SOC that summarizes the existing evidence

relevant to the disputed issues, explains how applicable laws and regulations affected

the decision, and discusses the reasons for the decision. 38 U.S.C. § 7105(d)(1).

2007-7099 9
Additionally, either before or after receiving the SOC, the claimant may submit

additional evidence to the RO; the VA will consider this evidence as if it had been filed

in connection with the original claim. 38 C.F.R. § 3.156(b). If necessary, VA also will

provide the claimant with a supplemental statement of the case (“SSOC”) to correct

problems in the initial SOC or account for evidence submitted after the SOC was

issued. See id. § 19.31(b).

When the claimant has no further evidence to submit and no further

supplemental statements of the case are required, the claimant has sixty days in which

to file a substantive appeal. 38 U.S.C. § 7105(d)(3). The RO then will certify the appeal

to the Board. 38 C.F.R. § 19.35. Once the appeal is certified, the claimant has ninety

days in which to submit additional evidence to the Board; he may also submit it after

that period upon a showing of good cause. Id. § 20.1304(a), (b). The claimant also is

entitled to notice of any new medical or legal opinions received by the Board, or any

new law the Board intends to apply; in either situation, the claimant may submit

additional argument or evidence within sixty days of receiving the notice. Id. § 20.903. 3

The claimant also receives a hearing before the Board, at which he can submit

additional evidence even if the ninety-day period has expired. 38 U.S.C. § 7107(b); 38

C.F.R. § 20.1304(a). Once the Board has decided the appeal it must, like the RO,

provide the claimant with a statement of the reasons or bases for its decision. 38

3
However, as with section 5103(a) notice, this notice by the Board is not
intended to apprise the claimant of the Board’s analysis of the claim or weighing of the
evidence. As with 38 C.F.R. § 3.159(b), the Secretary rejected a proposal that this
regulation provide the claimant with a form of predecisional adjudication, stating that
“[t]hese matters are generally not determined until the Board weighs the evidence and
decides the appeal.” Board of Veterans’ Appeals: Obtaining Evidence and Curing
Procedural Defects Without Remanding, 67 Fed. Reg. 3099, 3100 (Jan. 23, 2002).

2007-7099 10
U.S.C. § 7104(d)(1). If the Board remands the claim to the RO, the agency conducts

additional development and provides the claimant a new SSOC. 38 C.F.R. §§ 19.31(c),

19.38.

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 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 II, 444 F.3d at 1333. Other statutory and regulatory provisions

ensure that, after the VA rejects a claim, the claimant understands the basis for that

decision and has the opportunity to submit additional evidence. As we also recently

noted, “[a]ll claimants are entitled to appear at their hearings for the purpose of

presenting evidence, and VA personnel conducting hearings are instructed to ‘suggest

the submission of evidence which the claimant may have overlooked and which would

be of advantage to the claimant’s position.’” Sanders, 487 F.3d at 885 (quoting 38

C.F.R. § 3.103(c)(2)).

In summary, section 5103(a) requires only that the VA give a claimant notice at

the outset of the claims process of the information and evidence necessary to

substantiate the claim, before the initial RO decision and in sufficient time to enable the

claimant to submit relevant evidence. This 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). It need not

describe the VA’s evaluation of the veteran’s particular claim.

2007-7099 11
 CONCLUSION

For the foregoing reasons, the decision below is

AFFIRMED.

COSTS

No costs.

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