Mayfield v. Nicholson

United States Court of Appeals for the Federal Circuit

05-7157

LIZZIE K. MAYFIELD,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued
for claimant-appellant. With him on the brief were Linda E. Blauhut and William S.
Mailander.

Martin F. Hockey, Jr., Senior Trial Attorney, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. With him on the brief were Peter D. Keisler, Assistant Attorney
General and David M. Cohen, Director. Of counsel on the brief were Richard J. Hipolit,
Assistant General Counsel and Martie S. Adelman, Staff Attorney, United States
Department of Veterans Affairs, of Washington, DC.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, Kansas, argued for
amicus curiae The Veterans Law Group. On the brief was Mark R. Lippman, The
Veterans Law Group, of La Jolla, California.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Jonathan R. Steinberg
 United States Court of Appeals for the Federal Circuit

05-7157

LIZZIE K. MAYFIELD,

Claimant-Appellant,

v.

R. JAMES NICHOLSON, Secretary of Veterans Affairs,

Respondent-Appellee.

___________________________

DECIDED: April 5, 2006
___________________________

Before MICHEL, Chief Judge, MAYER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

This case requires us to resolve an issue involving the notification provision of

the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat.

2096 (“VCAA”), codified at 38 U.S.C. § 5103(a). Based on various communications

between the Department of Veterans Affairs (“VA”) and the claimant-appellant, the

Board of Veterans Appeals held that the VA had satisfied its obligations under the

notification provision. The Court of Appeals for Veterans Claims (“the Veterans Court”)

affirmed the Board’s decision, but it did so based on a communication other than the

ones the Board relied on. Mayfield v. Nicholson, 19 Vet. App. 103 (2005). We hold that

it was improper for the Veterans Court to affirm the Board based on the court’s analysis
of a communication not relied on by the Board. We therefore reverse the court’s order

and remand for further proceedings.

I

Estey Mayfield, a veteran who served in the U.S. Army during the Second World

War, was awarded service connection and a 50 percent disability rating in 1985 for a

left-leg injury and varicosities of both legs. He died in 1999 of congestive heart failure

due to coronary artery disease. Following Mr. Mayfield’s death, his widow Lizzie K.

Mayfield filed a claim for dependency and indemnity compensation (“DIC”). In order for

her to be eligible for DIC benefits, Mr. Mayfield’s death had to be the result of a service-

connected disability. See 38 U.S.C. § 1310(a). Mrs. Mayfield alleged that the required

causation was established because Mr. Mayfield’s veins were in such poor condition

that he was unable to undergo a bypass operation to treat his coronary artery disease.

A VA regional office denied Mrs. Mayfield’s DIC claim on the ground that the

evidence failed to establish any causal relationship between Mr. Mayfield’s military

service and his death. Mrs. Mayfield filed a notice of disagreement with the regional

office’s decision, and in June 2000 the regional office issued a Statement of the Case

(“SOC”) in which the regional office noted that “[n]o medical evidence has been

presented which provides a link between the veteran’s varicose vein condition and his

death.” Mrs. Mayfield then filed an appeal with the Board.

In December 2000, the Board remanded Mrs. Mayfield’s claim to the regional

office for readjudication in light of the recently enacted VCAA. The Board held that a

remand was necessary for the VA to comply with the notice and duty-to-assist

requirements of the new law. In particular, the Board directed the regional office to

05-7157 2
ensure that “the new notification requirements and development procedures contained

in sections 3 and 4 of the Act (to be codified as amended at 38 U.S.C. §§ 5102, 5103,

5103A, and 5107) are fully complied with and satisfied.” After doing so, the Board

directed, the regional office should “readjudicate the issue on appeal,” and if “the benefit

sought on appeal remains denied, [Mrs. Mayfield and her representative] should be

provided with a supplemental statement of the case.”

On remand, the regional office sent Mrs. Mayfield a letter dated December 13,

2000, in which it asked that she “identify all VA and non-VA health care providers who

have treated the veteran subsequent to service, and particularly any medical treatment

rendered to the veteran during the period immediately preceding his death.” In

response, she submitted forms authorizing Mr. Mayfield’s physicians to release his

medical records and requesting that the physicians submit any medical evidence

relating to his heart condition and his varicose veins, and in particular “any and all

medical evidence which would help establish that [he] could not undergo treatment for

[his] heart condition because of the severe varicosities of the lower extremities.”

On March 15, 2001, the regional office sent Mrs. Mayfield a letter that

presumably was intended to serve as the notice required by the VCAA. The letter

informed her of the VA’s duty to explain what information or evidence the VA needed to

grant the benefit she wanted and its duty to assist her in obtaining that information or

evidence. The letter then set forth the three requirements that must be satisfied to

establish entitlement to service-connected death benefits: (1) the cause of death; (2) an

injury, disease or event in service; and (3) a relationship between the cause of death

and injury, disease, or event in service. The letter further explained what had been

05-7157 3
done to assist her with her claim and what information or evidence the VA still needed

from Mrs. Mayfield.

Mrs. Mayfield responded that she “would like a medical opinion” on the likelihood

that her husband’s service-connected condition of varicose veins “may have contributed

to the cause of his death.” After the VA obtained Mr. Mayfield’s medical records from

several sources, a VA physician concluded that it was likely that Mr. Mayfield’s death

was related to his longstanding smoking and hypertension and that it was not likely that

his varicose veins had any effect on the cause of death. In January 2002, the regional

office advised Mrs. Mayfield that it was continuing to deny her request for benefits, and

it issued a supplemental statement of the case explaining the reasons for its decision

denying service connection for the cause of Mr. Mayfield’s death.

The case was then returned to the Board, which sustained the regional office’s

decision denying service connection for the cause of death. With respect to the duty to

notify and assist imposed by the VCAA, the Board found that the VA had satisfied those

duties in Mrs. Mayfield’s case. In discussing that issue, the Board made no reference to

the March 15, 2001, letter to Mrs. Mayfield, but instead concluded that the duty of

notification was satisfied by the combined contents of three documents that had been

sent to Mrs. Mayfield: the December 1999 rating decision that explained the reasons for

the denial of Mrs. Mayfield’s claim, the June 2000 statement of the case, and the

January 2002 supplemental statement of the case, which provided Mrs. Mayfield with

what the Board characterized as “the applicable law and regulations pertaining to

service connection for the cause of the veteran’s death.”

05-7157 4
 Mrs. Mayfield then appealed to the Veterans Court. In a single-judge order

issued in March 2004, the court vacated the Board’s decision and remanded the matter

for readjudication. The court noted that although the Board stated that Mrs. Mayfield

and her representative had been advised of the information and evidence necessary to

substantiate her claim, there was no evidence in the record that the VA had complied

with the regulation implementing the VCAA notification requirement, 38 C.F.R. § 3.159,

and in particular the requirement that the VA “request that the claimant provide any

evidence in the claimant’s possession that pertains to the claim,” id. § 3.159(b).

Because the claimant “has not had the opportunity to benefit from and react to the

notice that the Secretary was and is obligated to provide,” the court ruled that “any

conclusion by this Court that the appellant is not prejudiced would be pure speculation.”

Accordingly, “having taken ‘due account of the rule of prejudicial error’ (38 U.S.C.

§ 7261(b)),” the court remanded the matter for further proceedings.

The VA moved for reconsideration or panel review of the single-judge order. The

VA first argued that the court had overlooked the portion of the March 2001 letter to

Mrs. Mayfield that advised her that she should “submit any additional evidence that

supports your claim for service connection for the cause of your husband’s death,” and

specified the kinds of evidence that she should submit. That language, the VA argued,

was sufficient to fulfill the requirement that the VA request that the claimant provide any

evidence in her possession that pertains to the claim. Second, the VA argued that the

court had failed to take account of the harmless error rule, because it had not required

Mrs. Mayfield to show that if the VA had provided the requisite notice, “the outcome

below would have been different.”

05-7157 5
 The Veterans Court denied the motion for reconsideration of the single-judge

order, but it granted the motion for a panel decision. The panel then issued a lengthy

opinion that withdrew the single-judge order and affirmed the decision of the Board.

The court noted that the Board had not relied on the March 15, 2001, letter as the basis

for its conclusion that the VA had satisfied its obligations under the VCAA.

Nonetheless, the court looked to that letter and concluded that the VA had fulfilled its

obligations under the statutory notice requirement in 38 U.S.C. § 5103(a) and had

substantially fulfilled its obligations under the regulatory notice requirement in 38 C.F.R.

§ 3.159(b). The court also concluded that Mrs. Mayfield had failed to make a plausible

showing that any error by the Board was prejudicial, and that she had therefore failed to

demonstrate that the Board erred in finding that the VA fulfilled its statutory content-of-

notice obligations in her case. Mrs. Mayfield then appealed to this court.

II

Mrs. Mayfield first argues that the language of 38 U.S.C. § 5103 requires the VA

to provide a claimant with a single notice containing all the information referred to in the

statute. She contends that there is no authority in the statute permitting the Board of

Veterans Affairs or the Veterans Court “to combine, cobble together, or aggregate

various VA notices issued over a period of years to support a conclusion that the VA

provided [the claimant] with adequate VCAA notice.” For that reason, she contends that

it was legal error for the Board to look to the information provided in three separate

communications—the December 1999 regional office decision, the June 2000

statement of the case, and the January 2002 supplemental statement of the case—as

05-7157 6
the basis for finding that the VA had satisfied the notification duty imposed by section

5103(a).

We agree with Mrs. Mayfield that it was improper for the Board to conclude that

the VA’s notification duty was satisfied by the notice of decision and the two statements

of the case that it sent to her between 1999 and 2002. Section 5103(a), as amended by

the VCAA, provides as follows:

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
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.

38 U.S.C. § 5103(a). Subsection (b) of section 5103 provides that information or

evidence to be provided by the claimant must be “received by the Secretary within one

year from the date of such notice.” Id. § 5103(b).1 The VA has promulgated a

regulation that effectuates the notification duty of section 5103. It largely parallels the

provisions of section 5103(a), but adds that “VA will also request that the claimant

provide any evidence in the claimant’s possession that pertains to the claim.” 38 C.F.R.

§ 3.159(b)(2).2

1
This language was added by amendment in 2003. See Pub. L. No. 108-
183, 117 Stat. 2651, 2670 (2003). When Mrs. Mayfield’s claim was remanded to the
regional office in 2001, subsection (b) of the statute provided that information or
evidence to be provided by the claimant must be “received by the Secretary within one
year from the date of such notification” or “no benefit may be paid or furnished by
reason of the claimant’s application.”
2
This case was pending before the VA when the VCAA was enacted.
Presumably for that reason, the government has not argued that Section 5103 and 5

05-7157 7
 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. See

Paralyzed Veterans of Am. v. Sec’y of Veterans Affairs, 345 F.3d 134, 1344-45 (Fed.

Cir. 2003); 66 Fed. Reg. 45,620, 45,622-23 (Aug. 29, 2001). That 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. The text of section 5103(b), which refers to the one-year period

“from the date of such notice,” confirms that Congress envisioned a deliberate act of

notification directed to meeting the requirements of section 5103, not an assemblage of

bits of information drawn from multiple communications issued for unrelated purposes.

Documents such as the 1999 notice of decision, the 2000 statement of the case,

and the 2002 supplemental statement of the case that were sent to Mrs. Mayfield were

required by 38 U.S.C. §§ 5104 and 7105 to advise the claimant of the decision rendered

on the claim and to facilitate review of that decision. The VA’s obligation to provide

those communications to the claimant long predated the VCAA. Unlike sections 5104

and 7105, the post-2000 version of section 5103 requires the VCAA notification to be

issued prior to the initial decision on the claim, not afterwards. Moreover, the VCAA

C.F.R. § 3.159(b) are inapplicable to the claim. This court has held that the amended
version of section 5103 is not retroactively applicable to claims that were before the
Veterans Court or this court at the time the VCAA was enacted, see Bernklau v.
Principi, 291 F.3d 795, 802-06 (Fed. Cir. 2002); Dyment v. Principi, 287 F.3d 1377,
1384-85 (Fed. Cir. 2002), and the Veterans Court has held that the VCAA applies to
claims that were still before the agency at the time the VCAA was enacted, see
Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The regulation was made

05-7157 8
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, and to ensure that the

claimant understands what evidence will be obtained by the VA and what evidence must

be provided by the claimant. The 1999 notice of decision and the two statements of the

case did not contain any of the information expressly required by the VCAA notification

provision, nor did they provide that information to Mrs. Mayfield prior to the VA’s

decision on her claim.

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

communication from the VA. The statute and regulation are silent regarding the format

to be used for the required notification. 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.

To be sure, the fact that the VCAA was enacted after the regional office’s initial

decision in this case made strict compliance with the timing aspect of the amended

version of section 5103 impossible. The timing problem, however, was cured by the

Board’s remand following the enactment of the VCAA for a new VCAA notification

followed by readjudication of Mrs. Mayfield’s claim. In light of that remedial measure,

the VA could have substantially complied with the VCAA by issuing a fully compliant

section 5103 notification before readjudicating Mrs. Mayfield’s claim.

applicable to any claim filed before the enactment of the VCAA but not decided by the
VA as of that date. See 66 Fed. Reg. 45,620 (Aug. 29, 2001).

05-7157 9
 In its 2002 decision, following the remand and the readjudication by the regional

office, the Board found that the VA had satisfied the notification requirements of the

VCAA. Yet it based that finding not on a predecisional VCAA notification, but on the

three post-decisional communications with Mrs. Mayfield—the 1999 notice of decision

and the 2000 and 2002 statements of the case. Those notices did not advise Mrs.

Mayfield of the information needed to substantiate her claim, nor did they indicate what

information the VA would provide and what information she would be responsible for

obtaining. Indeed, one of the three communications, the 2002 Supplemental Statement

of the Case, even postdated the VA’s readjudication decision in January 2002 and

therefore was not a predecisional communication even with respect to the

readjudication decision.

Significantly, the Veterans Court did not rely on the 1999 notice of decision and

the two subsequent statements of the case to hold that the notification requirement of

section 5103 was satisfied. Instead, the court looked to the March 15, 2001, letter to

Mrs. Mayfield as the basis for its decision that the notification requirement had been

satisfied. The court acknowledged that the Board’s decision on the notification issue

was not based on the March 15, 2001, letter. In fact, the court pointedly stated that the

Board had “inexplicably made no reference” to that letter.

The problem with the court’s decision is that it violates the longstanding principle

of administrative law that a court reviewing an agency decision generally may not

sustain the agency’s ruling on a ground different from that invoked by the agency. See

Sec. & Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 87 (1943) (“The grounds upon

which an administrative order must be judged are those upon which the record

05-7157 10
discloses that its action was based.”); Sec. & Exch. Comm’n v. Chenery Corp., 332 U.S.

194, 196 (1947) (“[A] reviewing court, in dealing with a determination or judgment which

an administrative agency alone is authorized to make, must judge the propriety of such

action solely by the grounds invoked by the agency. If those grounds are inadequate or

improper, the court is powerless to affirm the administrative action by substituting what it

considers to be a more adequate or proper basis.”); Bivings v. U.S. Dep’t of Agric., 225

F.3d 1331, 1335 (Fed. Cir. 2000) (A court “cannot affirm the agency on a theory that,

although supported by the record, was not the basis for the agency’s ruling.”). By

sustaining the Board’s determination that the notification requirement had been

satisfied, but basing its ruling on an entirely different ground, the court violated those

principles. The Board’s decision was based on an incorrect understanding of the law,

specifically that the VCAA statute and regulation permitted compliance through a

combination of unrelated pre- and post-decisional communications, and the result under

the correct understanding of the law is not a foreordained conclusion. As such, the

Veterans Court should have remanded the case to the Board.

Citing Fleshman v. West, 138 F.3d 1429, 1433 (Fed. Cir. 1998), the government

first argues that this case does not present a Chenery problem because there was no

dispute as to many of the relevant facts in this case. It emphasizes that Mrs. Mayfield

does not dispute the contents of the March 15, 2001, letter or the fact that she received

it. The government therefore contends that the Veterans Court simply applied 38

U.S.C. § 5103(a) and 38 C.F.R. § 3.159 to the undisputed facts of the case, and thus

did not make a “determination or judgment which an administrative agency alone is

authorized to make.” Fleshman, 138 F.3d at 1433. We disagree. Although there is no

05-7157 11
dispute regarding certain historical facts in this case, that does not reduce the question

of the agency’s compliance with the notice requirements to a mechanical comparison of

the language of the March 15, 2001, letter with the text of the statute and regulation.

Rather, the question whether the notification given to Mrs. Mayfield complied with the

VA’s statutory and regulatory obligations depends on an assessment of the particular

information provided to Mrs. Mayfield in light of the circumstances of her claim, and

turns on what inferences the agency draws from the facts before it. Accordingly, the

determination by the Veterans Court that the March 15, 2001, letter to Mrs. Mayfield

satisfied the statutory and regulatory notification requirements was a substantially

factual determination of the type that should have been made by the agency in the first

instance.

The factual character of that inquiry is borne out by prior decisions of the

Veterans Court, which have consistently treated the question whether a particular notice

is sufficient to satisfy the notification requirements of section 5103 as factual. For

example, in Robinette v. Brown, 8 Vet. App. 69, 78 (1995), the court explained that “the

Secretary’s section 5103(a) obligation depends on the particular facts of the case and

the extent to which the Secretary has advised the claimant of the evidence necessary to

be submitted with a VA-benefits claim.” See also Hicks v. West, 12 Vet. App. 86, 90

(1998); Franzen v. Brown, 9 Vet. App. 235, 238 (1996); Graves v. Brown, 8 Vet. App.

522, 525 (1996).3 The VA made the same point at the time it issued its regulations

3
Although the cited Veterans Court cases predate the enactment of the
VCAA, the change in the statute does not alter the factual nature of the question
whether the section 5103 notification is sufficient in a particular case. The pre-2000
version of section 5103(a) contained the core requirement, still found in the post-

05-7157 12
corresponding to the VCAA. In comments accompanying the regulations, the agency

explained that “the content of VA’s notice to the claimant depends on the amount of

information and evidence VA already has regarding an individual claim, and cannot

precisely be defined by regulation.” 66 Fed. Reg. at 45,622.

Importantly, the determination that the March 15, 2001, letter satisfied the VA’s

notification obligations was made by the Veterans Court in the first instance. It was not

predicated on a prior factual determination made by the Board, which did not discuss

the March 15, 2001, letter at all. For that reason, this is not a case like Fleshman v.

West, in which the Board’s underlying findings provided the basis for the decision of the

Veterans Court and in which “the Board’s underlying findings demonstrate that the

agency had already exercised its discretion” with respect to the issue in dispute. 138

F.3d at 1433.

This court’s decision in Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000),

presents a closer analogy. In that case, which was decided under the pre-2000 version

of section 5103, the Board of Veterans Appeals applied an erroneous principle of law in

finding that the veteran’s claim was not well grounded. The Veterans Court nonetheless

affirmed the VA’s denial of benefits based on an analysis of the factual record in the

case. This court did not disagree with the Veterans Court’s characterization of the

ultimate issue of well-groundedness as a question of law. However, the court noted that

the issue of well-groundedness involved subsidiary questions of fact, and this court

determined that the Veterans Court had engaged in fact-finding in reaching its

amendment version, that the Secretary “shall notify the claimant of the evidence
necessary to complete the application.” 38 U.S.C. § 5103(a) (1994).

05-7157 13
conclusion that the veteran’s claim was not well grounded. For that reason, this court

reversed the Veterans Court and directed it to remand the case to the Board so that the

Board could reevaluate whether the veteran had stated a well-grounded claim under the

correct legal standards. 212 F.3d at 1264-65. The same analysis applies here to the

Veterans Court’s determination that the March 15, 2001, letter was sufficient, in light of

the circumstances of this case, to provide Mrs. Mayfield with the notification to which

she was entitled under the statute and regulation.

The government contends that the Veterans Court’s decision was “completely

consistent” with that of the Board, because the Board’s analysis demonstrates that it

would have reached the same result if it had considered the March 15, 2001, letter. The

problem with this argument is that, as we have noted, the three documents on which the

Board relied were manifestly inadequate as a legal matter to satisfy the statutory and

regulatory notification requirements. The fact that the Board found those documents

sufficient, and that in light of that erroneous conclusion the Board might well have

reached the same conclusion if it had, instead, looked to the March 15, 2001, letter,

does not provide a sound basis for the court’s decision. To illustrate this point, if the

Board had concluded as a legal matter that no notification was required at all, it could

confidently be assumed that the Board would have found any form of notification

sufficient. But that would not warrant the court’s concluding that its decision regarding

the March 15, 2001, letter was “completely consistent” with the Board’s ruling. Because

we have held that the Board’s ruling was based on an erroneous understanding of what

the statute and regulation required, we must reject as a basis for affirmance the

argument that the Veterans Court’s decision was consistent with the Board’s ruling.

05-7157 14
 Finally, this case is not one in which we can conclude that there was no violation

of the Chenery doctrine on the ground that “it is clear that . . . the agency would have

reached the same ultimate result under the court’s legal theory.” Grabis v. Office of

Pers. Mgmt., 424 F.3d 1265, 1270 (Fed. Cir. 2005) (citations and internal quotations

omitted); see also Koyo Seiko Co. v. United States, 95 F.3d 1094, 1100-01 (Fed. Cir.

1996) (Chenery doctrine inapplicable if there is no room for the agency to exercise its

discretion with respect to issue in question); Sahara Coal Co. v. Office of Workers

Comp., 946 F.2d 554, 558 (7th Cir. 1991) (“If the outcome of a remand is foreordained,

we need not order one.”). While the notice was detailed and clearly designed to comply

with the agency’s obligations under the VCAA, it is not clear that there would have been

no basis for the Board to find fault with the notice. As we have emphasized, whether

Mrs. Mayfield received appropriate notice is an issue that should be addressed by the

agency in the first instance, under the proper legal standard. That has not yet

happened in this case. We therefore hold that the Veterans Court’s decision departed

impermissibly from the principles of Chenery. Accordingly, we reverse the order of the

Veterans Court and remand the case to that court for further proceedings consistent

with this opinion.

The parties and amicus curiae in this case have urged that we address and

decide issues of broad significance regarding the application of the doctrine of harmless

error as applied to veterans claims cases. As our analysis above indicates, however,

this case does not call on us to resolve those issues, even though the Veterans Court

dealt with them in considerable detail. Instead, this case turns on a much narrower

question involving an application of the Chenery doctrine.

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 The distinction between the two doctrines, as applied to this case, is illustrated by

this court’s decision in Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In that case,

we held that the harmless error statute for Veterans Court cases, 38 U.S.C.

§ 7261(b)(2), applies to violations of the notice requirements of section 5103(a), and

that the Veterans Court erred when it “refused to consider whether the differences

between the notice actually given to [the veteran] and the notice required by section

5103(a) prejudiced [the veteran].” Id. at 1373. Conway did not present a Chenery issue

because the Veterans Court did not base its decision as to the sufficiency of the notice

on a ground different from the Board’s. If the Board in this case had considered the

March 15, 2001, notice and found it sufficient, and if the Veterans Court had ruled that

the March 15, 2001, notice was insufficient, then this case would have been analogous

to Conway and the Veterans Court would have been in a position to decide whether the

insufficiency in the notice was prejudicial. The Board, however, did not make any

findings at all regarding the March 15, 2001, letter, and yet the Veterans Court’s

decision was based entirely on that notice. By bypassing the Board’s ground of

decision and ruling on an alternative ground not addressed by the Board, the Veterans

Court violated the principles of Chenery. Accordingly, we remand based on the

Chenery issue, and we do not address the broader questions regarding the application

of the harmless error doctrine that the parties have urged us to decide.

REVERSED and REMANDED.

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