Lead Opinion
Before the Court is an appeal by the appellant, Frank L. Gallegos, Jr., of a June 16, 2005, Board of Veterans’ Appeals (Board) decision that denied entitlement to service connection for post-traumatic stress disorder (PTSD). Record (R.) at 1-16. This appeal is timely, and the Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, the Court will affirm the Board’s decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Anmy from December 1966 to January 1970. R. at 19. His service rec
In October 1997, a clinical social worker diagnosed the appellant with PTSD and depression. R. at 343; see also R. at 518 (clinical diagnosis of PTSD and major depressive disorder). Thereafter, in July 2000, the appellant filed a claim seeking service connection for both disorders. R. at 555-57. To support his claim, the appellant submitted a stressor statement in which he attested that his PTSD originated from two rapes that he suffered while imprisoned for his court-martial sentence. R. at 556, 669. The appellant said that he did not report the incidents out of shame, and that after they occurred, he felt suicidal, isolated, distrustful of others, and he performed his military duties poorly. Id. He also attested that the assaults prompted him to request a transfer to Vietnam, but that the Army sent him to Alaska instead.
In December 2000, pursuant to the version of 38 C.F.R. § 3.304(f)
The appellant underwent a VA medical examination in October 2001. R. at 750-54. Upon review of the appellant’s claims file, including letters from his family detailing postservice behavioral changes (R. at 272-75), Charles Oppegard, M.D., opined that “[t]he symptoms [the appellant] gives are quite consistent with a highly traumatized experience of sexual rape to a man.” R. at 753. The RO denied the appellant’s claim in November 2001, finding no evidence of an in-service stressor.
On March 7, 2002, while his claim was pending at the Board, VA published a final rule amending 38 C.F.R. § 3.304(f). 67 Fed.Reg. 10,330 (Mar. 7, 2002). Specifically, VA added the following to the existing text:
If a post-traumatic stress disorder claim is based on in-service personal assault, evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stres-sor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stres-sor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred.
38 C.F.R. § 3.304(f)(3) (2002).
In September 2002, the RO sent the appellant a Statement of the Case (SOC) containing the full text of the amended regulation. R. at 804-18. In June 2003, the appellant submitted a statement from his ex-wife, which described his substance abuse, cheating, and violent tendencies. R. at 866, 871. That same month, the appellant testified at a Board hearing, during which his representative cited the amended version of § 3.304(f)(3) and pointed to examples of the appellant’s behavioral changes claimed to be indicative of an in-service assault. R. at 842-56. The appellant and his representative also discussed with the Board chairman various alternative sources of evidence that allegedly offered support for the appellant’s claim. R. at 853-55.
The Board issued a decision in December 2003 remanding the appellant’s claim for further development in light of the changes to 38 C.F.R. § 3.304(f). R. at 858-63. Citing the amended regulation, the Board found that although “the RO noted in its November 2001 rating decision that the veteran could establish service connection through alternate sources of evidence which document behavioral changes after the alleged incident, the RO did not actually determine if such evidence was present.” R. at 860. Accordingly, the Board ordered the RO to afford the appellant the opportunity to submit additional supporting evidence and to subsequently readjudicate the claim. R. at 861-62. In January 2004, the appellant provided a statement to the RO detailing his destructive behavior following the alleged in-service assault. R. at 875.
In January 2005, the RO issued a Supplemental Statement of the Case (SSOC) that readjudicated, and ultimately denied, the appellant’s claim for service connection. R. at 927-33. The following month, the appellant asked VA to provide him a copy of his service records, which he alleged would show hospitalizations for fighting and the loss of his military driver’s license on account of bad behavior. R. at 937. The appellant’s February 2005 statement also quoted verbatim a portion of the amended version of 38 C.F.R. § 3.304(f). See id.
The Board affirmed the adverse RO determination in the June 2005 decision here on appeal. R. at 16. Applying the amended version of § 3.304(f), the Board determined that the appellant “ha[d] been informed that he could submit evidence from sources other than the service records in support of his PTSD claim.” R. at 12. However, the Board noted, credible evidence did not exist to corroborate the appellant’s account of his in-service stressor. R. at 13. The Board pointed out that the appellant’s testimony alone, as a matter of law, could not establish the event, and that his service records contained no reference to sexual assault or evidence of behavioral changes. R. at 6, 11-12 (citing Moreau v. Brown,
II. CONTENTIONS OF THE PARTIES
On appeal to the Court, the appellant asserts that the March 2002 amendment of 38 C.F.R. § 3.304(f) is favorable to him, and that Karnas v. Derwinski,
The Secretary agrees that the amended version of § 3.304(f) applies to the appellant’s claim (Secretary’s Supp. Br. at 10), though his reasoning differs from that of the appellant. The Secretary disputes that the Court’s holding in Kamas, supra, may be employed to determine whether an amended regulation has impermissible retroactive effects when applied to a pending claim, as he argues that Kamas was overruled by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Dyment v. Principi,
On June 12, 2008, the Court ordered supplemental briefing to address the impact of the Federal Circuit’s decision in Rodriguez, supra, which was decided after initial briefing. In particular, the Court requested that the parties analyze what impact, if any, the Federal Circuit’s holding in Rodriguez has on the rule of retro-activity set forth in Karnas, supra.
III. ANALYSIS
The Court recognizes, as an initial matter, the questions raised by the parties with regard to the continuing viability of the Court’s holding in Kamas, supra. However, it is not necessary to resolve those matters here today, as both parties agree that the amended version of 38 C.F.R. § 3.304(f) may be properly applied to the appellant’s claim. As an Article I Court, we are “not constitutionally bound by the case or controversy restraints on the judicial power of Article III courts.” Nolan v. Nicholson,
Accordingly, the only question remaining before the Court is whether the appellant did, in fact, receive the benefit of the regulatory changes to § 3.304(f). In order to answer this question, we must first determine what, specifically, is required of YA under the revised regulation and then assess whether VA satisfied those requirements.
A. The 38 C.F.R. § 3.304(f)(3) Notice Requirement
With the addition of § 3.304(f)(3) in March 2002, VA codified its existing internal policies that provided for additional development assistance in claims for PTSD based on personal assault. See M21-1 Manual, pt. III, para. 5.14(c) (Feb. 20, 1996). By doing so, VA recognized that “in personal assault cases[,] the Secretary has undertaken a special obligation to assist a claimant ... in producing corroborating evidence of an in-service stressor.” Patton v. West,
In the Court’s view, the notification requirement of § 3.304(f)(3) is akin to the notification requirement set forth in the VCAA. In November 2000, Congress enacted the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096 (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126). Section 5103 of the VCAA, codified at 38 U.S.C. § 5103, imposes a “duty of affirmative notification on VA,” requiring that the Agency inform the claimant “prior to the initial decision in the case as to the evidence that is needed.” Mayfield v. Nicholson,
Like 38 U.S.C. § 5103, § 3.304(f)(3) contemplates that a claimant seeking service connection for PTSD based on in-service
VA will not deny a post-traumatic stress disorder claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran’s service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence.
38 C.F.R. § 3.304(f)(3) (emphasis added). Similarly, in VA’s comments accompanying the publication of the final rule in the Federal Register, VA explained the addition of the language in § 3.304(f)(3) as “necessary to ensure that VA does not deny such claims simply because the claimant did not realize that certain types of evidence may be relevant to substantiate his or her claim.” 67 Fed.Reg. at 10,300. Thus, because, like the VCAA, § 3.304(f)(3) provides for preadjudicatory notification with the hope that the claimant can be an informed participant in his claim and that his claim will be adjudicated in light of all potentially relevant evidence, see 67 Fed.Reg. at 10,331, the Court believes that VA’s compliance with that provision is properly and analogously guided by the Federal Circuit’s decision in Mayfield, supra.
That decision provides that VA’s
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.
This is not to say that ... notification must always be contained in a single communication from the VA 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.
Mayfield,
The Court acknowledges that while 38 U.S.C. § 5103 requires notification prior to the initial adjudication of the claim, “[u]pon receipt of a complete of substantially complete application,” see Pelegrini,
B. VA’s Compliance with § 3.304(f)(3)
The Board’s determination that a communication satisfies the notice requirement of 38 U.S.C. § 5103 is a factual finding that the Court reviews under the “clearly erroneous” standard of review. See Prickett,
Analyzing the appellant’s claim under the standards delineated in Mayfield, supra, the Court holds that VA did not provide the appellant adequate notice under the terms of the amended § 3.304(f). The Court recognizes that the appellant could not receive § 3.304(f)(3) notification prior to the initial adjudication of his claim, because when the amended regulation took effect in March 2002, his claim had already been denied by the RO (R. at 759-62) and was pending on appeal to the Board. Once the amended regulation took effect, however, VA was obligated to issue fully compliant notice and readjudicate the appellant’s claim in fight of any new evidence that had been submitted. Mayfield,
From the text of its decision, it is not entirely clear which documents the Board relied upon as providing the requisite notice under § 3.304(f)(3). Rather, the Board stated, without elaboration, that “[t]he veteran has been informed that he could submit evidence from sources other than the service records in support of his PTSD claim” (R. at 12), and that “the RO made an attempt to verify the veteran’s alleged stressors, but there is no credible supporting evidence to corroborate his statements regarding the alleged sexual trauma” (R. at 13). Upon review of these factual determinations, however, the Court finds that they are clearly erroneous.
To be adequate, notice — whether in the context of the VCAA or not — has two core elements: (1) It must give the appellant notice of the content of the law, and (2) explicitly provide the claimant the opportu
Although the September 2002 SOC transcribed the text of the amended § 3.304(f) (R. at 813-14), by its nature, an SOC cannot provide compliant notification under that provision. Rather, the SOC is a deci-sional document that provides notification to the veteran in the context of an adjudication of his claim. Thus, the timing of such a communication prevents the Court from plausibly construing it as the “deliberate act of notification” contemplated by Mayfield. Further, the contents of the September 2002 SOC are also deficient, in that they did not explicitly advise the appellant that § 3.304(f) had been recently amended, nor did they inform him that he could submit new evidence pursuant to the changed provision. See R. at 804-18. The December 2003 Board remand order (R. at 858-863) and the January 2005 SSOC (R. at 926-33) suffer similar defects, as both are also decisional documents. Moreover, the January 2005 SSOC contained no mention of the amended regulation. The March 2004 letter (R. at 883-87), while not a decisional document, is not content-compliant notice under § 3.304(f)(3). Like the September 2002 SOC and the January 2005 SSOC, the March 2004 letter did not inform the appellant of the amended terms of § 3.304(f)(3) or give him the opportunity to furnish additional evidence in accordance with that provision. The Court therefore finds that VA did not provide adequate notice to the appellant under 38 C.F.R. § 3.304(f)(3).
The Court, however, is statutorily obligated to “take due account of the rule of prejudicial error.”
In this case, it is evident that VA’s failure to provide notice in accordance with 38
Moreover, in December 2003, the appellant received a Board remand for the specific purpose of affording him the opportunity to support additional evidence in light of the changes to § 3.304(f). R. at 861-62. He subsequently submitted new evidence in support of his claim. See, e.g., R. at 875. The Court recognizes that a decisional document such as the December 2003 remand order cannot serve as the “deliberate act of notification” contemplated by Mayfield,
IV. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and a review of the record, the Board’s June 16, 2005, decision is AFFIRMED.
Notes
. The record indicates that the appellant actually volunteered to transfer to Alaska in May 1967, prior to receiving his court-martial sentence. R. at 19, 126, 176.
. The version of 38 C.F.R. § 3.304(f) in effect prior to March 7, 2002, provided:
Service connection for post-traumatic stress disorder requires medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner-of-war under the provisions of § 3.1(y) of this part and the claimed stres-sor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor.
38 C.F.R. § 3.304(f) (2001).
. Although our concurring colleague would hold that a decisional document can provide notice that complies with the regulation, the guidance provided by the Federal Circuit in Mayfield makes clear that notice is not properly provided through this type of document. Accordingly, the effect of relevant information in decisional documents is better analyzed when dealing with the issue of prejudice.
Concurrence Opinion
concurring:
I agree with the majority’s determination that Mr. Gallegos had actual knowledge of the amended provisions of 38 C.F.R. § 3.304(f)(3) and of the kinds of evidence he could present in support of his claim. I also agree with the majority’s determination that the SOC issued to Mr. Gallegos could not provide adequate notice because it did not notify him that he could submit the additional evidence suggested by § 3.304(f)(3). However, as discussed below, I do not believe documents that are part decisional in nature can never provide the advice required by § 3.304(f)(3), and, in this instance, I believe a 2003 Board remand order fulfilled all the substantive advice requirements of § 3.304(f)(3).
Although I generally agree that the advice required by § 3.304(f)(3) is “akin to the notification requirements set forth in the VCAA” (emphasis added), I do not believe the similarity requires the strict application of the holding in Mayfield v. Nicholson,
Further, section 5103(a) necessitates “notice” how to substantiate a claim and who should provide what, if anything, see Mayfield II, supra, whereas § 3.304(f)(3) requires the Secretary to “advise” the claimant of alternative sources of evidence. An SOC is, by statute, a statement that provides the claimant 1) a summary of the evidence, 2) a cite to pertinent statutes and regulations and a discussion of how each affected the Secretary’s decision, and 3) a decision on each issue and the reasons for such decision. 38 U.S.C. § 7105(d)(1). Thus, although an SOC is a decisional document, it is also a document that is intended to advise the claimant how regulations and statutes affected the decision. I see no reason why the advice required by § 3.304(f)(3), if erroneously not provided prior to the initial decision on the claim, cannot be provided in the SOC sufficient to satisfy the requirements of that section, when the claimant is further advised that he can still submit the alternate evidence and the matter is readjudicated by the AOJ if and when such evidence is submitted, and I do not believe we should impose a per se rule that the SOC never can suffice to correct a timing error under § 3.304(f)(3).
Similarly, I see no reason why a Board remand order cannot satisfy the content-advice requirements of § 3.304(f)(3), and in this instance, I believe it did so. Specifically, a 2003 Board remand order specifically advised Mr. Gallegos of the forms of