United States Court of Appeals for the Federal Circuit
06-7001
WOODROW F. SANDERS,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
Michael A. Morin, Finnegan, Henderson, Farabow, Garrett & Dunner, L.L.P., of
Washington, DC, argued for claimant-appellant. On the brief was Mark R. Lippman,
The Veterans Law Group, of La Jolla, California, 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. 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. Of counsel was Todd M. Hughes, Assistant Director.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Alan G. Lance, Sr.
United States Court of Appeals for the Federal Circuit
06-7001
WOODROW F. SANDERS,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
__________________________
DECIDED: May 16, 2007
__________________________
Before NEWMAN, MAYER, and PROST, Circuit Judges.
PROST, Circuit Judge.
Woodrow F. Sanders appeals an August 25, 2005, decision by the United States
Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed a decision by the
Board of Veterans’ Appeals (“Board”) denying Mr. Sanders’s claim for service
connection for choroidoretinitis of his right eye. Sanders v. Nicholson, 20 Vet. App. 143
(2005). Because the Veterans Court incorrectly required Mr. Sanders to establish that
an error in a notice the Department of Veterans Affairs (“VA”) is required to give
claimants was prejudicial, we reverse and remand for proceedings consistent with this
opinion.
I. BACKGROUND
Mr. Sanders served in the United States Army from May 1942 to September
1945. Although his service medical records do not indicate that he suffered an eye
trauma or abnormality and no eye abnormalities were recorded in his separation
medical examination, Mr. Sanders asserts that on September 12, 1944, while serving in
France, a bazooka exploded near him, burning the right side of his face. In December
1948, Mr. Sanders was diagnosed with chronic, right-eye choroidoretinitis, an
inflammation of the choroids and retina. Believing his choroidoretinitis was caused by
his injury in 1944, Mr. Sanders submitted a claim for service connection for a right-eye
disability to the VA. The VA regional office (“VARO”) denied his claim in February 1949.
Approximately forty years later, Mr. Sanders filed a statement attempting to
reopen his claim for service connection for his choroidoretinitis. In support of his claim,
Mr. Sanders submitted a statement from a VA ophthalmologist, dated December 1992,
and a statement from a private ophthalmologist, dated September 1993. The VA
ophthalmologist reported that Mr. Sanders stated that he was injured in a bridge
explosion, rather than a bazooka explosion, and that he had experienced vision loss in
his right eye ever since. The VA ophthalmologist went on to diagnose right and left
macular chorioretinal scars and stated that “[i]t is not inconceivable that these macular
and retinal lesions in each [eye] and particularly the right could have occurred
secondary to trauma.”
Mr. Sanders’s private ophthalmologist also reported that Mr. Sanders indicated
that his injury occurred during a bridge explosion and that he had experienced vision
loss in his right eye since then. The ophthalmologist diagnosed large chorioretinal scars
06-7001 2
in both eyes and opined that “[t]his type of macular injury in his right eye can certainly
be concussive in character and his history supports the visual acuity loss from his injury
in World War II.”
Mr. Sanders later stated that both the VA ophthalmologist and his private
ophthalmologist were incorrect in reporting that his eye injury occurred during a bridge
explosion. Instead, Mr. Sanders reiterated that his injury occurred when the right side of
his face was burned by a bazooka explosion. According to Mr. Sanders, this injury went
unreported because there were no medics to whom he could report his injury and
because most of his fellow soldiers were wounded or killed. Nonetheless, in July 1994
the VARO found Mr. Sanders had failed to present new and material evidence to
reopen his claim. Mr. Sanders appealed to the Board, but the Board denied his claim
for service connection in a decision dated November 27, 1998. In January 1999,
however, the Veterans Court remanded Mr. Sanders’s case for further development and
adjudication.
In June 2000, the Board found that new and material evidence had been
presented to reopen Mr. Sanders’s claim for service connection and remanded Mr.
Sanders’s claim for a VA ophthalmologic examination to determine the etiology of his
right-eye condition.
In December 2000, Mr. Sanders had a comprehensive eye examination by a VA
optometrist. The optometrist diagnosed decreased vision in the right eye due to a
macular scar and a small chorioretinal scar in the left eye, but stated that, based on the
fact that Mr. Sanders’s visual acuity in the right eye was 20/20 on May 15, 1942, and
20/25 on September 25, 1945, when he was discharged from the Army, it is unlikely that
06-7001 3
the decrease in vision was related to Mr. Sanders’s September 1944 trauma. The
optometrist also noted that there was no documented evidence of reduced vision until
1948. According to the optometrist, “[i]t is certainly possible for there to have been
damage to the retina in 1944 that then hemorrhaged in 1948, . . . but there are no other
signs of ocular trauma.” The optometrist concluded that “[t]he chorioretinitis is most
likely infectious in nature, although the etiology at this point is impossible to determine.”
Although he noted it was possible Mr. Sanders contracted some infection during his
military service, the optometrist stated that “there is no way to prove this either.”
In August 2001, Mr. Sanders was also examined by another VA ophthalmologist,
who diagnosed dense macular scarring of the right eye and early macular degeneration
of the left eye. The ophthalmologist stated that Mr. Sanders’s decreased vision was
consistent with these clinical findings, but that the etiology of Mr. Sanders’s macular
scar “is more difficult to ascertain.” According to the ophthalmologist, “[i]f [Mr.
Sanders’s] vision had been normal in the right eye prior to the reported injury, then it is
possible that the macular scar could be related to the injury.” The ophthalmologist
further stated that “[d]ue to the fact that [Mr. Sanders] does have the additional punched
out chorioretinal scars in both eyes, the possibility of [an infection] as the etiology of the
macular scar could also be entertained.”
The VARO issued Supplemental Statements of the Case in 2001 and 2002
discussing this additional medical evidence. The VARO also sent Mr. Sanders a letter
stating that it had all the information it needed to decide his claim, but that he could
submit any additional evidence he wanted considered.
06-7001 4
In October 2003, the Board denied Mr. Sanders’s claim for service connection for
his right-eye choroidoretinitis. The Board found that the opinion of the VA optometrist
was more probative on the issue of whether Mr. Sanders’s choroidoretinitis was service-
related and concluded that the preponderance of the evidence weighed against the
claim. Mr. Sanders appealed to the Veterans Court.
On appeal to the Veterans Court, Mr. Sanders argued that the VA failed to
provide notice as to who was responsible for obtaining the evidence necessary to
substantiate his claim, as required by the notice provision of the Veterans Claims
Assistance Act of 2000 (“VCAA”), 38 U.S.C. § 5103(a), and failed to provide this notice
prior to the initial denial of his claim.
In a decision dated August 25, 2005, the Veterans Court found that there was a
plausible basis in the record for the Board’s decision denying service connection. The
Veterans Court also found that Mr. Sanders did not allege any specific prejudice
resulting from the VA’s alleged failure to notify him about who would ultimately be
responsible for obtaining the evidence necessary to substantiate his claim, and to
provide notice before the initial unfavorable decision by the VARO. Because Mr.
Sanders did not meet the burden of showing how such errors affected the fairness of
the adjudication, the Veterans Court stated that it need not consider whether any error
occurred. Mr. Sanders appeals to this court. We have jurisdiction over appeals from
the Veterans Court pursuant to 38 U.S.C. § 7292.
06-7001 5
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.” 38
U.S.C. § 7292(d)(1). We must 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.” Id. 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. History of the VCAA
At the center of Mr. Sanders’s appeal are the notice requirements of the VCAA.
The VCAA was enacted in November 2000 to ensure that the VA assisted veterans
claiming VA benefits. The legislation was passed in response to concerns expressed by
veterans, veterans service organizations, and Congress over a July 1999 decision of
the Veterans Court, Morton v. West, 12 Vet. App. 477 (1999), which held that the VA did
not have a duty to assist veterans in developing their claims unless the claims were
“well-grounded.” Put another way, prior to the VCAA, the VA only had to assist in the
full development of a veteran’s claim if the veteran first provided enough information for
06-7001 6
the VA to determine that the claim was plausible. The VCAA eliminated this well-
grounded-claim requirement. See 146 Cong. Rec. H9913-14 (Oct. 17, 2000)
(Explanatory Statement by the House and Senate Committees on Veterans’ Affairs).
Instead, Congress noted that under the VA’s “claimant friendly” and “non-adversarial”
adjudicative system, the VA “must provide a substantial amount of assistance to a
[claimant] seeking benefits.” 146 Cong. Rec. at H9913 (citations omitted).
Under the legal framework of the VCAA, there is generally no prerequisite to
receiving VA assistance; the VA is simply required to assist a claimant at the time that
claimant files a claim for benefits. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c)
(2003). As part of this assistance, the VA is required to notify claimants of what they
must do to substantiate their claims. 38 U.S.C. § 5103(a). If the VA denies a claim, it
must provide the claimant with a statement of the reasons for the decision and a
summary of the evidence considered. 38 U.S.C. § 5104(b). If a claimant files a notice
of disagreement, the VA must issue a statement of the case summarizing the reasons
for the VA’s decision on each issue, the evidence considered, and the relevant statutes
and regulations. 38 U.S.C. § 7105(d)(1). All 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.” 38 C.F.R.
§ 3.103(c)(2).
As mentioned above, Mr. Sanders’s appeal focuses on the notice requirements
of the VCAA. These notice requirements are contained within 38 U.S.C. § 5103(a),
which states:
06-7001 7
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).
The purpose of § 5103(a) notification “is 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” prior to the initial adjudication of his claim.
Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006) (“Mayfield II”).
Moreover, the VA’s duty to notify cannot be 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,” as such post-decisional notices do not
contain the same content or serve the same purpose as § 5103(a) notification. Id.; see
also Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004).
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.
06-7001 8
Accordingly, 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.
This court has previously held that such VCAA notice errors are reviewed under
a prejudicial error rule. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004). This
is consistent with 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 means for the Veterans
Court to “take due account” of the rule, nor did it define what constitutes prejudical error.
Conway, 353 F.3d at 1375.
Lacking specific guidance from this court, the Veterans Court took it upon itself to
address how to apply the rule of prejudicial error in Mayfield v. Nicholson, 19 Vet. App.
103 (2005) (“Mayfield I”), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). As an
initial matter, the Veterans Court in Mayfield I held that an appellant asserting a VCAA
notice error bears the burden of convincing the court that a notice error has, indeed,
been committed, by referring to specific deficiencies in the documents in the record on
06-7001 9
appeal, including any documents that may have been relied on as satisfying the notice
requirements of § 5103(a). Id. at 111.
Next, the court addressed what was meant by prejudicial error. Id. at 112-16.
After analyzing Supreme Court and Federal Circuit precedent, as well as interpretations
of the prejudicial error rule under the Administrative Procedure Act (“APA”), 1 the court
concluded 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)). As stated by the court,
this did not require an outcome to have been different to have been prejudicial. Id.; see
also Kotteakos v. United States, 328 U.S. 750, 765 (1946) (“The inquiry cannot be
merely whether there was enough to support the result, apart from the phase affected
by the error. It is rather, even so, whether the error had substantial influence.”). That
said, a demonstration that the outcome would not have been different in the absence of
the error would demonstrate that there was no prejudice. Mayfield I, 19 Vet. App. at
115.
According to Mayfield I, Congress, in § 7261(b)(2), provided the Veterans Court
“with considerable discretion in determining what burdens should be carried by the
parties regarding [its] taking due account of the prejudicial-error rule.” Id. at 117. After
analyzing Supreme Court precedent in other contexts, see id. at 117-20, the court
concluded that
in the section 5103(a) notice context an appellant generally must identify,
with considerable specificity, how the notice was defective and what
1
Similar to the VCAA, the APA requires federal courts to take “due account
. . . of the rule of prejudicial error” when reviewing agency administrative action. 5
U.S.C. § 706.
06-7001 10
evidence the appellant would have provided or requested the Secretary to
obtain (e.g., a nexus medical opinion) had the Secretary fulfilled his notice
obligations; further, an appellant must also assert, again with considerable
specificity, how the lack of that notice and evidence affected the essential
fairness of the adjudication.
Id. at 121. However, if the asserted error is found to exist and to be of the type that has
the “natural effect” of producing prejudice, an appellant need not have pled prejudice.
Id. Instead, “it is the Secretary’s burden to demonstrate lack of prejudice in terms of the
fairness of the adjudication.” Id. To do this, the Secretary is required to persuade the
court that the purpose of the notice was not frustrated—e.g., by demonstrating: (1) that
any defect in notice was cured by actual knowledge on the part of the claimant, (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. Id. With this in mind, the Veterans Court defined the roles of the claimant and the
Secretary in connection with the court’s taking due care of the prejudicial error rule in
the context of the various types of notice element and timing errors.
With respect to the first notice element, i.e., notice regarding the information and
evidence necessary to substantiate the claim, the court held that the natural effect of
such an error would “constitute a failure to provide a key element of what it takes to
substantiate [the] claim, thereby precluding [the appellant] from participating effectively
in the processing of her claim,” defeating the very purpose of § 5103(a) notice. Id. at
122. Accordingly, the court held that such a first-element error was presumed
prejudicial, and that the VA had the burden of demonstrating that the appellant was not
prejudiced by the notice error. Id.
06-7001 11
With respect to the second and third notice elements, i.e., notice regarding which
portion of the information and evidence necessary to substantiate the claim, if any, is to
be provided by the claimant and which portion, if any, the Secretary will attempt to
obtain on behalf of the claimant, the court noted that “the assertion of [such an] error, by
itself, does not have the natural effect of producing prejudice because this asserted
error did not preclude the appellant from effectively participating in the processing of
[the] claim.” Id. Instead, “prejudice can arise from such an asserted error only if [the
appellant] failed to submit evidence because [he or] she was not advised to do so, or if
the Secretary failed to seek to obtain evidence that he should have obtained.” Id.
Accordingly, with respect to second and third notice elements, the Veterans Court
placed the burden of establishing prejudice on the claimant, requiring the claimant to
identify: (1) how the notice was defective; (2) what evidence the appellant would have
provided or requested the Secretary to obtain had the Secretary fulfilled his notice
obligations; and (3) how the lack of that evidence affected the essential fairness of the
adjudication. Id. at 121.
With respect to the fourth notice element, i.e., that the notice “request that the
claimant provide any evidence in the claimant’s possession that pertains to the claim,”
38 C.F.R. § 3.159(b)(1), the court also placed the burden of showing prejudice on the
claimant. Id. at 122-23. According to the court, “[p]rejudice would exist only if the
claimant had evidence in [his or] her possession, not previously submitted, that is, of the
type that should be considered by the Secretary in assessing her claim.” Id. at 122.
Moreover, whether or not claimant had such evidence “is a matter within [his or] her
knowledge and certainly outside the Secretary’s.” Id. at 123. Accordingly, the court
06-7001 12
thought the burden to prove prejudice was properly placed on the claimant, rather than
on the Secretary. This required the claimant to identify: (1) how the notice was
defective, (2) what evidence the appellant would have provided had the Secretary
fulfilled his notice obligations, and (3) how the lack of that evidence affected the
essential fairness of the adjudication. Id. at 121.
Finally, with regard to timing errors, the court noted that such errors “do[] not
have the natural effect of producing prejudice and that, therefore, prejudice must be
pled as to it.” Id. at 123.
C. Prejudicial Error Rule in the VCAA Context
On appeal, Mr. Sanders contends that the Veterans Court’s opinion in Mayfield I,
requiring a claimant to show prejudice as the result of an untimely or inadequate VCAA
notice with respect to second-, third-, and fourth-element notice errors, misinterprets 38
U.S.C. § 5103(a) and 38 U.S.C. § 7261(b)(2). Instead, Mr. Sanders argues that all
VCAA notice violations should be presumed prejudicial, as is the case with first-element
notice errors under Mayfield I. 2 We agree.
The requirement that a claimant demonstrate prejudice as a result of a VCAA
notice error is at odds with the very purpose behind the passage of the VCAA. Instead,
we hold that the VCAA notice errors should be presumed prejudicial, requiring reversal
2
Although Mr. Sanders’s brief argues that VCAA notice errors should be
deemed per se prejudicial, the brief also acknowledges an exception to this rule “when,
under any conceivable factual scenario, further development of the record would not
support an award of benefits.” (Appellant’s Br. 18 n.9.) As such, Mr. Sanders does not
advocate a true “per se prejudicial” rule. Instead, at oral argument counsel for Mr.
Sanders clarified his position as advocating a presumption of prejudice for all VCAA
notice errors, similar to the presumption applied to first-element notice errors under
Mayfield I.
06-7001 13
unless the VA can show that the error did not affect the essential fairness of the
adjudication. To do this, the VA must persuade the reviewing court that the purpose of
the notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by
actual knowledge on the part of the claimant, (2) that a reasonable person could be
expected to understand from the notice what was needed, or (3) that a benefit could not
have been awarded as a matter of law. In other words, we conclude that the rule the
Veterans Court applied to first-element notice errors should also apply to second-, third-
and forth-element notice errors.
Although the Supreme Court in Palmer v. Hoffman, 318 U.S. 109, 116 (1943)
held that “[h]e who seeks to have a judgment set aside because of an erroneous ruling
carries the burden of showing that prejudice resulted,” the Supreme Court has also held
that “the burden of showing that any technical errors . . . affected his substantial rights”
does not always fall to the party seeking a new trial. Kotteakos, 328 U.S. at 760.
Instead, “[i]f the error is of such a character that its natural effect is to prejudice a
litigant’s substantial rights, [then] the burden of sustaining a verdict will . . . rest upon the
one who claims under it.” Id. The fact that Kotteakos involved a criminal matter is
immaterial, as “precedent suggests that civil and criminal harmless-error standards do
not differ in their treatment of grave doubt as to the harmlessness of errors affecting
substantial rights.” O’Neal v. McAninch, 513 U.S. 432, 441 (1995).
In Mayfield I, the Veterans Court acknowledged that “[s]ection 5103(a) assumes
a fundamental role in furthering an interest that goes to the very essence of the
nonadversarial, pro-claimant nature of the VA adjudication system . . . by affording a
claimant a meaningful opportunity to participate effectively in the processing of his or
06-7001 14
her claim.” 19 Vet. App. at 120-21 (citations omitted); see also id. at 120 (“Nothing in
the VCAA’s legislative history, or in the VA’s August 2001 regulations or their regulatory
history, suggests that the VCAA and its implementing regulations were not intended to
bestow upon an appellant a substantial right by way of amended section 5103(a)
notice.”). The Veterans Court, however, erred by not giving sufficient weight to the
importance of claimant participation to the VA’s uniquely pro-claimant benefits system.
Moreover, despite its proffered justifications, the Veterans Court erred by parsing
the various elements of the notice required by § 5103(a) and finding certain elements of
the required notice more substantial than others. As stated by the Supreme Court,
“there is no canon against using common sense in construing laws as saying what they
obviously mean.” Roschen v. Ward, 279 U.S. 337, 339 (1929). The Veterans Court,
however, took Congress’s clear desire to create a framework conducive to efficient
claim adjudication and instead created a system that practically requires a claimant
asserting a notice error to seek counsel simply to be able to navigate the appeal
process and assure him or herself of a fair adjudication. For example, the system
articulated by the Veterans Court requires a claimant, simply in order to rectify the VA’s
failure to comply with its statutorily mandated responsibilities, to bear the burden of
(1) figuring out what it means to “affect the essential fairness of the adjudication,” and
(2) persuading the court in an adversarial judicial proceeding that the essential fairness
of the underlying adjudication was indeed affected. Given Congress’s intent to not only
involve but assist the claimant in the processing of his or her claim, and given that the
rule of prejudicial error only arises when the VA has undisputedly failed to follow
06-7001 15
statutory requirements, the system created by Mayfield I cannot be consistent with what
Congress envisioned when passing the VCAA.
Additionally, the Veterans Court compounded this error by discounting the
importance of several of the various notice elements when considering whether the
various VCAA notice errors had the natural effect of prejudicing the appellant. With
respect to first-element notice errors, we agree with the Veterans Court that the natural
effect of such an error would “constitute a failure to provide a key element of what it
takes to substantiate [the] claim, thereby precluding [the appellant] from participating
effectively in the processing of her claim,” defeating the very purpose of § 5103(a)
notice. Mayfield I, 19 Vet. App. at 122. However, we fail to see how second-, third-,
and fourth-element notice errors are so materially different from first-element notice
errors as to compel substantially different treatment.
With respect to second- and third-element notice errors, the Veterans Court
incorrectly concluded that such an error “did not preclude the appellant from effectively
participating in the processing of [the] claim.” Id. Instead, the Veterans Court stated
that “prejudice can arise . . . only if [the appellant] failed to submit evidence because [he
or] she was not advised to do so, or if the Secretary failed to seek to obtain evidence
that he should have obtained.” Id. This fact, however, does not dictate placing the
burden of establishing prejudice on the claimant. In passing the VCAA, Congress
clearly viewed the claimant’s participation as essential to processing his or her claim for
VA benefits, and believed that the claimant should be notified which evidence he or she
was responsible for providing and which evidence the government was responsible for
providing. If Congress felt that such notice elements were not necessary to allow the
06-7001 16
claimant to effectively participate in the processing of his or her claim, then why would it
have required them as part of the notice pursuant to § 5103(a)? By presuming these
notice errors were not prejudicial, the Veterans Court essentially excused the VA’s
failure to satisfy its statutory obligations—ones which Congress explicitly required in
order to allow the claimant to effectively participate in the processing of his or her
claim—without a showing that the defect had not frustrated the very purpose of the
notice. This was error.
The Veterans Court also incorrectly placed the burden of establishing prejudice
on the appellant with respect to fourth-element notice errors. Although the Veterans
Court correctly stated that “[p]rejudice would exist only if the claimant had evidence in
[his or] her possession, not previously submitted, that is, of the type that should be
considered by the Secretary in assessing her claim,” id., this fact does not dictate
placing the burden of establishing prejudice on the appellant. And although the
Veterans Court did not base its allocation of the burden on that fact that whether or not
the claimant had such evidence “is a matter within [his or] her knowledge and certainly
outside the Secretary’s,” id. at 123, this fact only highlights the importance of providing
proper notice to the claimant.
Finally, with regard to timing errors, the Veterans Court also incorrectly placed
the burden of establishing prejudice on the appellant. As this court pointed out, the
purpose of § 5103(a) notification is to ensure that the claimant’s case is presented with
all available support prior to the initial adjudication of his claim. Mayfield II, 444 F.3d at
1333-34. Post-decisional notices cannot satisfy the VA’s § 5103(a) notification duty. Id.
By assuming timing errors are not prejudicial, however, the Veterans Court essentially
06-7001 17
held the opposite—that post-decisional notices can be assumed to have satisfied this
duty. It is not for the Veterans Court, nor for this court for that matter, to disregard
Congress’s intended purpose. Accordingly, presuming such timing errors were not
prejudicial was error on the part of the Veterans Court.
In light of the above discussion, we hold that any error in a VCAA notice should
be presumed prejudicial. The VA has the burden of rebutting this presumption. That
said, this opinion does not displace the rule that the claimant bears the burden of
demonstrating error in the VCAA notice, see U.S. Vet. App. R. 28(a), nor does it change
the rule that reversal requires the essential fairness of the adjudication to have been
affected. This opinion merely clarifies that all VCAA notice errors are presumed
prejudicial and that the VA has the burden of rebutting this presumption.
In announcing this rule, we are mindful of the Supreme Court’s admonition that
only certain “structural errors undermining the fairness of a criminal proceeding as a
whole” warrant reversal without regard to the mistake’s effect upon the proceeding,
United States v. Benitez, 542 U.S. 74, 81 (2004). A presumption of prejudice does not
require reversal in all instances of VCAA notice error. Only in situations where the VA
cannot rebut the presumption would reversal be warranted.
Moreover, the presumption of prejudice does not defeat the purpose of the rule of
prejudicial error, i.e., “to avoid wasteful proceedings on remand where there is no
reason to believe a different result would have been obtained had the error not
occurred.” In re Watts, 354 F.3d 1362, 1369 (Fed. Cir. 2004). Instead, it merely shifts
the burden of rebutting this presumption to the VA in light of the uniquely pro-claimant
benefit system created by the VCAA.
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We are also mindful that when § 7261(b)(2) was originally enacted—as 38
U.S.C. § 4061(b)—the Senate Committee on Veterans Affairs issued a report that
stated its scope-of-review provisions “would incorporate a reference to the ‘rule of
prejudicial error’ as included in the [APA],” and that this would require a court to “pass
over errors in the record of the administrative proceedings that the court finds not to be
significant to the outcome of the matter.” S. Rep. No. 100-481, at 62 (1988). However,
the treatment of prejudicial error under the APA is not dispositive, as even the Veterans
Court recognized. In Mayfield I, after considering the APA, the Veterans Court still
noted that § 7261(b)(2) left it with “considerable latitude as to how to ‘take due account’”
of the rule of prejudicial error. 19 Vet. App. at 114. Had the Veterans Court felt
constrained by the interpretation of the rule of prejudicial error under the APA, such an
acknowledgment would have been unnecessary. Moreover, the statement that
§ 4061(b) would “incorporate a reference to the ‘rule of prejudicial error’ as included in
the [APA]” was made a dozen years prior to the passage of the VCAA. Even if
Congress had previously intended veterans’ claims notice errors to be assessed under
the same prejudicial error rule as APA notice errors, such intent was abrogated by the
subsequent passage of the VCAA, which, as previously discussed, substantially
overhauled the administration of the VA benefits system. Like the Veterans Court, we,
too, believe that Congress left the courts with “considerable latitude” in implementing
the rule of prejudicial error. However, as discussed above, the Veterans Court
overlooked the uniquely pro-claimant nature of the VA benefits system. Put simply,
interpreting § 7261(b)(2) as requiring veterans to overcome a series of complex legal
hurdles in order to secure the assistance mandated by Congress would clearly frustrate
06-7001 19
the purpose of the VCAA. As such, the Veterans Court’s interpretation of § 7261(b)(2)
is in error.
III. CONCLUSION
Because the Veterans Court incorrectly required Mr. Sanders to demonstrate
prejudice in the VCAA notice error context, we reverse and remand for proceedings
consistent with this opinion.
COSTS
No costs.
REVERSED AND REMANDED
06-7001 20
Sanders v. Nicholson
Court: Court of Appeals for the Federal Circuit
Date filed: 2007-05-16
Citations: 487 F.3d 881
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