United States Court of Appeals for the Federal Circuit
2006-7092
PATRICIA D. SIMMONS,
Claimant-Appellee,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellant.
Richard R. James, of Glen Allen, Virginia, argued for claimant-appellee. Of
counsel on the brief was Sean A. Ravin, of Washington, DC.
Martin F. Hockey, Jr., Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellant. With him on the brief was Peter D. Keisler, Assistant Attorney General. Of
counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Martie S. Adelman, Staff Attorney, United States Department of Veterans Affairs, of
Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
United States Court of Appeals for the Federal Circuit
2006-7092
PATRICIA D. SIMMONS,
Claimant-Appellee,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellant.
__________________________
DECIDED: May 16, 2007
__________________________
Before NEWMAN, MAYER, and PROST, Circuit Judges.
PROST, Circuit Judge.
The Secretary of Veterans Affairs appeals a decision by the United States Court
of Appeals for Veterans Claims (“Veterans Court”) that vacated and remanded a
decision by the Board of Veterans’ Appeals (“Board”) denying Patricia D. Simmons’s
claim for service connection for hearing loss in her right ear and for an increased rating
for hearing loss in her left ear. Simmons v. Nicholson, No. 03-1731, 2005 WL 3312625
(Vet. App. Dec. 1, 2005). Because the Veterans Court properly placed the burden on
the Secretary to establish that an error in a notice the Department of Veterans Affairs
(“VA”) was required to give Ms. Simmons was not prejudicial, we affirm and remand for
further proceedings.
I. BACKGROUND
Ms. Simmons served in the United States Navy from December 1978 to April
1980. Upon her discharge in April 1980, she filed a claim with the VA for disability
benefits for hearing loss in her left ear. In November 1980, the VA regional office
(“VARO”) determined that Ms. Simmons’s in-service work environment had aggravated
a pre-existing hearing impairment in her left ear, causing further hearing loss. The
VARO concluded, however, that her degree of hearing loss did not warrant
compensation under the applicable rating schedule.
In March 1998, Ms. Simmons asked the VARO to reopen her claim for disability
compensation for her left-ear hearing loss and to amend her claim to include a request
for compensation for hearing loss in her right ear. The VARO denied her claim in
August 1998. On appeal, the Board remanded her claim back to the VARO, directing it
to, among other things, comply with the notice requirements imposed by the newly-
enacted Veterans Claims Assistance Act of 2000 (“VCAA”), 38 U.S.C. § 5103(a). 1
Accordingly, on remand, the VARO sent Ms. Simmons a letter in March 2001 in
an effort to comply with the VCAA notice requirements. Subsequently, the VARO
denied Ms. Simmons’s claim. The Board affirmed.
Ms. Simmons appealed to the Veterans Court, arguing, in part, that the VA failed
to comply with the VCAA notice requirements. Specifically, Ms. Simmons contended
that the VA’s March 2001 letter failed to identify (1) the information or evidence needed
1
The notice requirements of § 5103(a) are described in more detail below
and in our opinion in Sanders v. Nicholson, No. 06-7001 (Fed. Cir. May 16, 2007). In
essence, § 5103(a) requires the VA to notify claimants of the evidence needed to
substantiate their claims.
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to substantiate her claim for an increased rating, (2) which portion of the information and
evidence, if any, was to be provided by Ms. Simmons, and (3) which portion, if any, the
Secretary would attempt to obtain on her behalf.
The Veterans Court agreed with Ms. Simmons and remanded her claim for
further proceedings. According to the Veterans Court, the VCAA required the VA to
notify Ms. Simmons of the evidence needed to establish a claim for an increased
disability rating. But instead of identifying the evidence needed for an increased-rating
claim, the March 2001 notice letter erroneously stated that Ms. Simmons’s claim
required evidence to establish the three elements of service connection—elements that
had already been established back in November 1980. Such an error, the court held,
“constitute[d] a VA failure to ‘provide a key element of what it takes to substantiate her
claim, thereby precluding her from participating effectively in the processing of her
claim, which would substantially defeat the purpose of section 5103(a) notice.’”
Simmons, 2005 WL 3312625, at *7 (quoting Mayfield v. Nicholson, 19 Vet. App. 103,
122 (2005) (“Mayfield I”), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006)).
Because it held that this type of error had “the natural effect of producing prejudice,” the
court placed the burden on the VA to demonstrate that Ms. Simmons was not
prejudiced by the defective notice letter. Id. And because the VA did not meet this
burden, the court remanded Ms. Simmons’s claim for further development and directed
the VA to comply with the VCAA notice requirements.
The Secretary of the VA appeals to this court. We have jurisdiction under 38
U.S.C. § 7292. See Conway v. Principi, 353 F.3d 1369, 1373-74 (Fed. Cir. 2004).
2006-7092 3
II. DISCUSSION
A. Standard of Review
In reviewing a Veterans Court decision, this court must decide “all relevant
questions of law, including interpreting constitutional and statutory provisions” and set
aside any regulation or interpretation thereof “other than a determination as to a factual
matter” relied upon by the Veterans Court that is “(A) arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law; (B) contrary to constitutional right,
power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or
limitations, or in violation of a statutory right; or (D) without observance of procedure
required by law.” 38 U.S.C. § 7292(d)(1) (2006). We review questions of statutory
interpretation de novo. Summer v. Gober, 225 F.3d 1293, 1295 (Fed. Cir. 2000).
Except to the extent that an appeal presents a constitutional issue, this court “may not
review (A) a challenge to a factual determination, or (B) a challenge to a law or
regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2).
B. Prejudicial Error Rule in the VCAA Context
This case requires us to interpret the meaning of “the rule of prejudicial error” as
it applies to the notice requirements of the VCAA. Our opinion in Sanders v. Nicholson,
No. 06-7001 (Fed. Cir. May 16, 2007), which is being issued concurrently with this
opinion, resolves this issue. Accordingly, we will provide only a brief summary here.
The VCAA notice requirements are contained within 38 U.S.C. § 5103(a), which
states:
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
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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
which portion, if any, the Secretary, in accordance with section 5103A of
this title and any other applicable provisions of law, will attempt to obtain
on behalf of the claimant.
The statutory notice requirement of § 5103(a) is implemented in 38 C.F.R.
§ 3.159(b)(1), which provides, in pertinent part:
When VA receives a complete or substantially complete application for
benefits, it will notify the claimant of any information and medical or lay
evidence that is necessary to substantiate the claim. VA will inform the
claimant which information and evidence, if any, that the claimant is to
provide to VA and which information and evidence, if any, that VA will
attempt to obtain on behalf of the claimant. VA will also request that the
claimant provide any evidence in the claimant’s possession that pertains
to the claim.
As we explain in Sanders,
the notice required by the VCAA can be divided into four separate
elements: (1) notice of what information or evidence is necessary to
substantiate the claim; (2) notice of what subset of the necessary
information or evidence, if any, that the claimant is to provide; (3) notice of
what subset of the necessary information or evidence, if any, that the VA
will attempt to obtain; and (4) a general notification that the claimant may
submit any other evidence he or she has in his or her possession that may
be relevant to the claim. Errors with regard to these elements are referred
to as first-element, second-element, third-element, and fourth-element
notice errors, respectively.
Slip op. at 9.
In Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004), this court held that
the Veterans Court must review appeals alleging VCAA notice errors for prejudicial
error. The basis for our holding in Conway was 38 U.S.C. § 7261(b)(2), which states
that the Veterans Court shall “take due account of the rule of prejudicial error” when
reviewing the record of proceedings before the Secretary and the Board of Veterans’
Appeals. The court in Conway, however, did not express an opinion as to what it
2006-7092 5
means for the Veterans Court to “take due account” of the rule, nor did it define what
constituted prejudicial error. Conway, 353 F.3d at 1375.
Subsequently, in Mayfield I, the Veterans Court took it upon itself to address how
to apply the rule of prejudicial error in the context of the VCAA notice requirements.
First, the court held that a claimant asserting a VCAA notice error bears the initial
burden of establishing that a notice error has, indeed, been committed, by referring to
specific deficiencies in the documents in the record on appeal, including any documents
that may have been relied on as satisfying the notice requirements of § 5103(a).
Mayfield I, 19 Vet. App. at 111.
Next, the court in Mayfield I held that “an error is prejudicial if it affects the
‘substantial rights’ of the parties in terms of ‘the essential fairness of the [adjudication].’”
Id. at 115 (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 553-54
(1984)). With respect to the first notice element—notice regarding the information and
evidence necessary to substantiate the claim—the court held that the natural effect of
an error would be to “preclud[e the claimant] from participating effectively in the
processing of her claim, which would substantially defeat the very purpose of section
5103(a) notice.” Id. at 122. Accordingly, the court concluded that a first-element notice
error should be presumed prejudicial, and that the VA had the burden of demonstrating
that the claimant was not prejudiced by the notice error. Id.
In this case, the Veterans Court applied the Mayfield I framework to Ms.
Simmons’s claim that the March 2001 letter did not comply with the notice requirements
of the VCAA. First, the court determined that the March 2001 letter did not identify the
information and evidence necessary to substantiate Ms. Simmons’s claim—a first-
2006-7092 6
element notice error. Next, the court placed the burden on the Secretary to
demonstrate that Ms. Simmons was not prejudiced by the defective notice. That is, the
court required the Secretary to demonstrate that the purpose of the notice was not
frustrated—for example, by demonstrating: (1) that any defect in notice was cured by
actual knowledge on the part of Ms. Simmons, (2) that a reasonable person could be
expected to understand from the notice provided what was needed, or (3) that a benefit
could not possibly have been awarded as a matter of law. Because the VA did not meet
this burden, the court remanded Ms. Simmons’s claim for further development and
directed the VA to comply with the VCAA notice requirements.
On appeal to this court, the Secretary does not take issue with the Veterans
Court’s determination that the March 2001 notice letter contained a first-element notice
error. Instead, the Secretary argues that the Veterans Court misinterpreted the rule of
prejudicial error when it presumed that the defective notice was prejudicial to Ms.
Simmons and placed the burden on the VA to demonstrate otherwise. According to the
Secretary, the Veterans Court should have placed the burden on Ms. Simmons to
establish that she was prejudiced by the defective notice.
Our opinion in Sanders resolves this issue. As we stated in Sanders, once the
veteran establishes that the VA has committed a VCAA notice error, the Veterans Court
should presume that such error was prejudicial to the veteran. Sanders, slip op. at 18.
The VA may rebut this presumption by establishing that the error was not prejudicial to
the veteran. Id. Consequently, for the reasons set forth in Sanders, we reject the
Secretary’s argument and hold that the Veterans Court properly placed the burden on
the Secretary to establish that the notice error was not prejudicial.
2006-7092 7
III. CONCLUSION
The decision of the Veterans Court is affirmed. The case is remanded for further
proceedings.
COSTS
No costs.
AFFIRMED AND REMANDED
2006-7092 8