*1 decision, judicial RO review will still
be available after the Board has made a
final decision on that matter. request for revision of April 2000 RO decision based on this theory
new of CUE is not a basis for overturning the Board decision here on appeal and there is no reasons-or-bases error the Board’s decision for failing to discuss application 1131. Brown, Allday v. 7 Vet.App.
(1995). Accordingly, has any allegations raised of Board error in adjudication of his CUE motion con- cerning April 2000 RO’s denial pre-
sumptive service connection for andMS the Board decision will be affirmed.
IV. CONCLUSION After consideration of the Secretary’s pleadings, and a re- record, view of the the Board’s October 2005, decision is AFFIRMED. To
extent that the appellant has raised a CUE motion that has not presented been
Board, that motion is DISMISSED with- prejudice.
out GALLEGOS, Frank L. Jr., Appellant, PEAKE, M.D., James B. Secretary Affairs, Appellee. of Veterans No. 05-2920. United States Court of Appeals
for Veterans Claims. Argued Sept.
Decided Dec. *2 Kan- Topeka, Carpenter, of M.
Kenneth sas, appellant. for Counsel, with Hutter, General J. Paul Assistant Campbell, R. Randall whom Counsel, Washington, F. Carolyn General Counsel, and General Assistant Deputy D.C., Cowden, Washington, all B. James appellee. for LANCE, KASOLD, Before SCHOELEN, Judges.
SCHOELEN, Judge: by the appeal is an Before Court Jr., June of a Gallegos, L. Frank appellant, Appeals Board Veterans’ (Board) denied entitlement decision post-traumatic connection service (R.) (PTSD). 1- Record disorder stress timely, and appeal is This deci- the Board’s to review jurisdiction has 7252(a) §§ to 38 U.S.C. pursuant sion reasons, 7266(a). following For the decision. the Board’s affirm will
I. BACKGROUND duty active served on December 1966 Anmy from
the U.S. rec- His service January 1970. ords indicate that he lost days for time fights in order to “prove that [he] served in confinement pursuant to a mili- man get anger [his] out.” Id. tary court-martial sentence. R. at In December pursuant to the ver- *3 176-77; see § 972. While in sion of 3.304(f)2 38 C.F.R. effect, then in service, the appellant single underwent a the regional (RO) office in Denver,
treatment for “nervous tension” and “situ- Colorado, sent a letter to appellant the ational anxiety” attributed to his ongoing requesting that he “alternate divorce proceedings. R. at 116. sources information that would assist 1997,
In evaluating [VA] October a your clinical social claim.” R. worker at 647. The diagnosed RO set the forth appellant examples of with PTSD such eviden- and tiary sources, depression. 343; R. including at see also R. statements at from (clinical service personnel, medical diagnosis of major “buddy” PTSD and de- state- ments, disorder). pressive accident or police Thereafter, reports, physical July 2000, examinations the conducted for appellant employment filed claim or a seeking insurance purposes, service medical connection for treatment re- both disorders. R. ports, letters service, during written pho- To ap- tographs service, taken pellant during phar- submitted a and stressor statement macy records. R. at which he attested that his PTSD originat- from rapes
ed two that he suffered while The appellant underwent a VA medical imprisoned for his court-martial sentence. examination in October 2001. R. at 750- 556, R. at 669. The appellant said that he 54. Upon review of the claims report did shame, incidents out of file, including letters from his family de- occurred, and that after they he felt suicid- tailing postservice (R. behavioral changes al, isolated, others, distrustful of and he 272-75), Oppegard, M.D., Charles performed his military duties poorly. Id. opined that symptoms “[t]he appel- [the also He attested the assaults prompt- gives lant] quite are consistent a high- with ed him to request a Vietnam, transfer to ly experience traumatized rape sexual to but Army sent him to a Alaska man.” R. at The 753. RO denied the instead.1 R. 642. Alaska, In the appel- appellant’s claim in November find- recalled, lant he often got drank and into no evidence of an in-service stressor. 1. The record indicates that actu- contrary, provided and that the ally volunteered to May transfer to Alaska in claimed stressor is consistent with the cir- 1967, prior receiving his court-martial sen- cumstances, conditions, hardships or of the 19, 126, tence. R. at 176. service, veteran's lay the veteran’s testimo- ny may alone establish the occurrence of version 38of C.F.R. in effect the claimed in-service stressor. If the evi- 7, 2002, prior provided: to March dence establishes that the veteran was a Service post-traumatic connection for prisoner-of-war provisions under stress requires disorder medical evidence 3.1(y) part of this and the claimed stres- diagnosing the condition accordance sor prisoner-of-war is related to experi- 4.125(a) link, chapter; of this es- ence, in the absence of clear and convinc- evidence, tablished medical between cur- ing evidence contrary, and symptoms stressor; rent and an in-service that the claimed stressor is consistent with credible evidence that the circumstances, conditions, hardships claimed in-service stressor occurred. If the service, the veteran’s lay establishes veteran’s veteran en- gaged testimony enemy combat with the alone establish the occur- combat, claimed stressor is related to that of the rence claimed in-service stressor. in the absence of clear convincing 3.304(f) (2001). evi- opinion professional health mental appealed
R. at 759-62.
personal
indicates
to whether
Board.
decision
occurred.
assault
his claim
2002, while
March
On
final
Board,
published
pending
(2002).
38 C.F.R.
3.304(f). 67
38 C.F.R.
amending
rule
sent
2002, the RO
September
2002).
(Mar. 7,
Specifical
10,330
Fed.Reg.
(SOC)
Case
of the
a Statement
existing
following
added
ly, VA
text
full
containing the
text:
In June
R. at 804-18.
regulation.
claim
disorder
stress
post-traumatic
aIf
*4
from
a statement
assault,
submitted
appellant
the
personal
on in-service
is based
his substance
ex-wife,
described
his
which
other than
sources
from
evidence
violent
tendencies.
may corrobo-
abuse, cheating, and
records
service
veteran’s
month,
stres-
of the
same
account
That
871.
veteran’s
rate
such evidence
dur-
Examples
hearing,
a Board
incident.
testified
appellant
sor
to: records
not limited
include,
are
cited
but
representative
his
which
authorities, rape
enforcement
point-
law
from
version
amended
counseling
centers,
health
mental
crisis
behavior-
appellant’s
of the
examples
ed to
preg-
physicians;
or
centers, hospitals,
of an
to be indicative
changes claimed
al
sexually trans-
for
or tests
nancy tests
ap-
R.
assault.
in-service
from
diseases; and statements
mitted
dis-
also
representative
pellant
roommates,
ser-
fellow
members,
family
various
chairman
the Board
cussed
Evidence
members,
clergy.
or
vice
alleg-
that
of evidence
sources
alternative
the claimed
following
changes
behavior
for
edly offered
evidence
of relevant
type
one
is
assault
R. at 853-55.
claim.
these sources.
found
may be
may
changes that
behavior
Decem-
Examples
a decision
issued
The Board
the stres-
evidence
credible
constitute
claim
remanding
ber 2003
to: a
limited
include,
are not
but
sor
of the
light
development
further
for
mili-
to another
a transfer
for
request
3.304(f). R. at
to 38 C.F.R.
changes
deterioration
assignment;
duty
tary
regulation,
Citing the
858-63.
abuse;
substance
performance;
work
RO
“the
although
Board found
attacks, or
panic
depression,
episodes
rating decision
its
noted in November
cause; or
an identifiable
anxiety without
service
could establish
veteran
social behavior
economic
unexplained
of ev-
sources
through alternate
connection
deny post-trau-
will not
changes. VA
changes
behavioral
document
idence
that is based
claim
stress disorder
matic
incident,
RO
did
alleged
after the
without
assault
personal
on in-service
if
evidence
such
actually determine
that evidence
claimant
advising the
first
Accordingly, the
at 860.
R.
present.”
the veteran’s
other than
from sources
appel-
to afford
the RO
Board ordered
of behavior
or evidence
records
service
additional
submit
lant the
sup-
credible
may constitute
changes
subsequently
and to
and al-
stressor
porting
R. at 861-62.
readjudicate
opportunity or her the
lowing him
provided
January
advise
evidence or
type of
furnish
detailing his destruc-
the RO
statement
of such evidence.
sources
potential
ofVA
in-ser-
alleged
following the
behavior
tive
any evidence
submit
R. at 875.
assault.
or vice
medical
appropriate
receives
In a letter
dated
Brown,
March
the RO
ment and insurance purposes, postservice II. CONTENTIONS OF records, medical pharmacy records. THE PARTIES R. at 883-84. The appellant received a appeal On Court, followup medical opinion from Dr. Oppe asserts that the March 2002 gard in amendment of October 2004. R. at 899-903. him, favorable to *5 In January 2005, the RO issued a Sup- and that Derwinski, Karnas v. 1 Vet.App. plemental (SSOC) Statement of the Case (1991), requires that the version of an that readjudicated, denied, and ultimately amended regulation most favorable to the appellant’s claim for service connec- claimant applied to pending claims. tion. R. at month, 927-33. The following Appellant’s (Br.) 4-6; Brief Appellant’s appellant asked to provide him a Supplemental (Supp.) Br. at 3-4. ap The copy of records, his service which he al- pellant recognizes that argument his de leged would show hospitalizations fight- pends on the continuing viability of the ing and the loss of military his driver’s rule of retroactivity set forth in Kamas. license on account of bad behavior. R. at Appellant’s However, Br. at 6. he contends The February 2005 state- that, while overruled in other respects, ment also quoted a portion verbatim of the Kamas remains the law in cases where a 3.304(f). amended version of 38 C.F.R. regulation is amended ain manner favor See id. able to the veteran while the claim pend The Board affirmed RO adverse de- ing. Appellant’s Supp. Br. at 3-4. The termination the June 2005 decision here further argues should the on appeal. R. at 16. Applying the amend- Court find that the amended version of 38 ed 3.304(f), version of the Board deter- 3.304(f) applies C.F.R. claim, to his it mined that the appellant “ha[d] been in- should also determine that VA failed formed that he could submit evidence from provide notice that complied with the sources than other the service records in amended regulation. Appellant’s Br. at 6- support of his PTSD claim.” R. at 12. 13; Reply Br. at 1-8. According However, noted, the Board evi- credible appellant, after VA promulgated the dence did not exist to the ap- corroborate amended 3.304(f), version 38 C.F.R. pellant’s account of his in-service stressor. required was to advise him that he could R. at 13. The pointed Board out that the submit sources of evidence other than ser alone, testimony as a matter of vice records evidence of postassault be law, event, could not establish and that havioral changes to corroborate his ac his service records contained no reference stressor; count the in-service to inform to sexual assault or evidence of behavioral him of the types of evidence that could changes. 11-12 (citing Moreau v. constitute “credible supporting evidence” re- subsequently was order, his claim and to regulation; that under a stressor January 2005 SSOC. in the adjudicated connec- for service claim Ms
readjudicate
Secretary
The
Br. at
Secretary’s
submit-
new
any
light of
tion in
demon
that
Br.
6-9; Reply
contends
also
atBr.
Appellant’s
ted. See
of the contents
knowledge
neglected
actual
strated
that
He believes
rendering
3.304(f), thereby
Br.
Appellant’s
amended
actions.
these
undertake
occurred
may have
this error
defect
any notice
asserts
at 6. The
(citing Sand
of his
at 11-12
adjudication
Id.
in the
nonprejudicial.
him
prejudiced
(Fed.Cir.2007),
given
had been
487 F.3d
“[i]f [he]
ers
because
nom.,
Peake
record
notification,
granted
then
sub
t.
cer
-
2935, 171
necessary
U.S. -,
credible
128 S.Ct.
Sanders,
contained
well have
contemplated
(2008)).
L.Ed.2d
Br. at
3.304(f)(3).” Appellant’s
ordered
June
On
the im
briefing to address
supplemental
Secretary agrees
decision
Circuit’s
Federal
pact
appel
applies
version
after
decided
supra,
Rodriguez,
10),
atBr.
Supp.
(Secretary’s
claim
lant’s
particular,
briefing.
initial
that of
from
differs
reasoning
though
analyze what
parties
requested
disputes
Secretary
appellant.
hold
Federal Circuit’s
any,
if
impact,
Kamas, supra,
holding
the Court’s
rule
retro-
on the
has
Rodriguez
whether
to determine
employed
may be
Karnas, supra.
forth in
activity set
ret
impermissible
has
*6
amended
to a
applied
pending
when
effects
roactive
ANALYSIS
III.
over
Kamas
argues that
he
an initial
recognizes, as
Court
Ap
of
States
by the United
ruled
parties
raised
matter,
questions
(Federal Cir
Circuit
Federal
peals for
viability of
continuing
to the
regard
1377
F.3d
Principi, 287
cuit)
v.
Dyment
in
Kamas,
supra.
in
holding
the Court’s
291
Principi,
(Fed.Cir.2002),
v.
klau
Bern
necessary to resolve
However,
not
it is
Principi,
v.
(2002),
Kuzma
F.3d 795
parties
today, as both
here
matters
those
Secretary’s
(Fed.Cir.2003).
timing of VA’s 337 assault. ment. failure to may compliant on an in-service VA’s be based by this conclusion may The Court reaches notice constitute remandable error. remedy timing adopting by analogy Quartuccio v. Principi, Vet.App. See 16 set forth Prickett v. (2002). defects 183, 187-88 (2006). Prickett, Vet.App. Analyzing claim under recognized where strict the Court in Mayfield, the standards delineated su timing-of-notification to VCAA adherence pra, pro the Court holds that VA did not may requirements possible, is not “VA appellant adequate vide the notice under timing through compliance defects cure 3.304(f). the terms the amended measures!, including] proper with remedial recognizes that Court could (l)[t]he fully compliant .... of a issuance not receive notification prior (2) notification, readju- followed VCAA adjudication to the initial of his be (citing Mayfield, dication of the claim” cause when the regulation took 1333-34; Pelegrini, Vet.App. F.3d at at already effect March his claim had 122-24). Prickett, compliance Like strict 759-62) (R. been denied the RO 3.304(f)(3)’s notifi preadjudicatory with pending appeal was on to the Board. may possible not be requirement cation effect, Once the amended took here, as VA lack evidence of an al however, obligated fully issue until leged in-service assault after one compliant readjudicate ap notice and adjudications more pellant’s any claim in fight new evidence However, adjudicated where VA has Mayfield, that had been submitted. providing the notification prior claim 1333-34; Prickett, supra; F.3d at Pelegri 3.304(f)(3), required by may cure ni, Vet.App. VA failed do fully by furnishing compliant that defect inso this case. readjudicating appel
notification and fight any claim in new lant’s decision, From the text of its it is not Mayfield, See 444 F.3d at submitted. entirely clear which documents the Board Prickett, 1333-34; supra; Pelegrini, 18 upon providing requisite relied no- Vet.App. at 3.304(f)(3). Rather, tice under stated, elaboration, without Board Compliance B. VA’s has been informed that he veteran “[t]he that a Board’s determination could evidence from sources other submit require communication satisfies the notice of his than the service records ment of 38 U.S.C. 5103 is a factual find (R. 12), claim” and that “the RO PTSD ing that reviews under Court attempt verify made an the veteran’s “clearly of review. erroneous” standard stressors, there is no credible alleged but Prickett, at 378. The supporting evidence to corroborate his this case must make similar regarding alleged statements sexual inquiry, namely, given factual whether a (R. 13). Upon of these trauma” review provides adequate communication notifica determinations, however, factual tion to the under 38 C.F.R. *9 they clearly that are erroneous. finds 3.304(f)(3). that, such, As we believe as Prickett, adequate, To be notice—whether employ the Court should core context of the VCAA or not—has two “clearly erroneous” standard of review (1) give elements: It must reviewing when the Board’s determination (2) law, notice of the content of the that a communication fulfills provide opportu- the claimant the regulatory require- explicitly notice 338 Moreover, are also decisional documents. information submit
nity to utilize that
Mayfield, 444
contained no men-
January
See
2005 SSOC
further evidence.
ting
no
(noting
predecisional
The
regulation.
tion of the amended
F.3d at 1338
(R.
have different
883-87),
tification “is
not
2004 letter
at
while
March
notices,
post-decisional
document,
contents from
is not content-com-
decisional
purposes—
for different
designed
3.304(f)(3).
and it is
Like the
pliant notice under
pre
case is
that the claimant’s
to ensure
January
September 2002 SOC and
with
initial decisionmaker
sented
SSOC, the March 2004 letter did not
2005
available”); see also
support is
whatever
inform the
of the amended terms
supra. Addi
Pelegrini, both
Wilson and
3.304(f)(3) give
or
him the
above, the Federal Cir
tionally, as noted
evidence in accor-
to furnish additional
Mayfield
that VA satis
cuit established
The
provision.
dance with that
only by providing
duties
fies its notification
provide
finds that
did not
therefore
prior
act of notification”
a “deliberate
adequate
notice to the
under 38
the veteran’s
adjudication of
3.304(f)(3).
assemblage of bits of information
“not an
multiple communications is
drawn from
Court, however,
statutorily
is
Mayfield,
purposes.”
sued for unrelated
obligated to “take due account of the rule
The various communica
legations
prejudice
Moreover,
in
appel-
December
13),
at
the Court holds that YA has rebut-
spe-
lant received a Board remand for the
allegations
those
and demonstrated
ted
purpose
cific
of
him
affording
opportu-
prejudice
no
resulted from the
that
nity
support
light
to
additional
At
notice error.
several
3.304(f).
changes
of
R.
to
record,
points
appellant
in the
demon-
subsequently
He
submitted new evidence
knowledge
strated his actual
of the amend-
See,
support
of his
R.
e.g.,
ability
provisions
ed
of
and his
recognizes
875. The Court
that a decision-
to
evidence thereunder.
submit
al document such as the December 2003
Sanders,
(holding
tentially supportive of his claim. R. at such, 435. As the June 2005 Board deci- appellant’s February 846-55. The appeal. sion must affirmed on See 38 quoted portion statement also verbatim 7261(b)(2); Newhouse and Con- U.S.C. of the amended version of 38 C.F.R. way, supra. both 3.304(f). Like the June 2003 testimony,
hearing this statement illus- IV. CONCLUSION knowledge trates the actual of the appellant’s After consideration ability to submit evidence of behavioral Secretary’s pleadings, and a re- changes to his account of corroborate assault, record, the Board’s June compels finding in-service view provide adequate failure to no- decision is AFFIRMED. that VA’s *11 claim, should SCHOELEN, of al of the but Judge, opinion filed the when a mistake read to mean that not be the Court. by provid it cannot be corrected is made KASOLD, concurring a Judge, filed in a SOC or Board required advice opinion. order, along with notice that the remand submitted, may yet alternate evidence KASOLD, concurring: Judge, by followed another deci and thereafter majority’s determina- I agree by agency original claim the sion on the knowl- Gallegos had actual tion that Mr. (AOJ). v. jurisdiction See Prickett Nichol provisions edge of the (2006). son, 3.304(f)(3) § and of the kinds 5103(a) Further, necessitates of his section present he could a claim and majority’s “notice” how to substantiate with the agree I also what, anything, if see provide who should the SOC issued to Mr. determination 3.304(f)(3) II, § Mayfield supra, notice whereas provide adequate not could Gallegos Secretary to requires could “advise” notify him that he it did not because of alternative sources of evidence. suggested claimant submit the additional is, statute, 3.304(f)(3). However, by a statement An SOC § discussed by 1) summary a of the below, provides are the claimant I not believe documents that do 2) evidence, statutes and pertinent a cite to part provide in nature can never decisional 3.304(f)(3), and, regulations § and a discussion of how each required by the advice 3) decision, instance, Secretary’s I believe a 2003 Board affected this the reasons for decision on each issue and order fulfilled all substantive remand 7105(d)(1). 3.304(f)(3). § § such decision. 38 U.S.C. requirements advice Thus, is a decisional doc- although SOC agree that the ad- Although generally I ument, it is also a document that is intend- 3.304(f)(3) §by is “akin to required vice regulations claimant how ed to advise the requirements the notification set forth affected the decision. I see and statutes added), I not (emphasis do VCAA” why required by no reason advice similarity the strict requires believe the 3.304(f)(3), erroneously provided if not application holding Mayfield on prior to the initial decision Nicholson, F.3d provided cannot be the SOC sufficient (Fed.Cir.2006)[hereinafter Mayfield II] section, satisfy requirements of that never can serve decisional document the claimant is further advised that when required by notice 38 U.S.C. he can still submit the alternate evidence 5103(a). 5103(a) notice, Unlike section readjudicated by the matter is provided upon receipt of a to be AOJ if and when such evidence is submit- completed substantially completed ap- ted, impose and I do not believe we should plication, required advice never can per se rule that the SOC only provided needs to be be- timing suffice to correct a error under Secretary fore the denies a claim. It is 3.304(f)(3). finally that a axiomatic claim is denied Similarly, why I see no reason a Board until a final Board decision is rendered. 7104; satisfy cannot the content- Bingham remand order (Fed.Cir.2005). 3.304(f)(3), requirements and in F.3d 1348-49 advice instance, I say Specifi- This is not to that the believe it did so. advice cally, specifi- remand order should not be a 2003 Board cally Gallegos initial advised Mr. of the forms of the earliest time and before an deni- *12 submit, that he could alternative of and a citation the text provided 3.304(f)(3). or- R. at It also 859-60. RO “afford the veteran that the
dered evi- any additional to submit of his claim for service PTSD,” adding that Mr. connection for information “is advised that this Gallegos necessary supportive to obtain that he must be stressful events and 61. The possible.” as specific all of remand order 2003 Board 3.304(f)(3), required by the advice development continued was followed There and another decision. the evidence se rule simply per is no reason to issue that are in- to the effect that documents satisfy not also part decisional 3.304(f)(3). requirement advice CELANO, Appellant, Joseph A. PEAKE, M.D., Secretary B. James Affairs, Appellee. of Veterans No. Appeals United States Court for Veterans Claims.
Jan. Celano, pro A. se.
Joseph notes reaching this the claimant be itself, require tion is that language prior information given the states on the claim and to the VA’s decision stress deny post-traumatic not VA will enables the claimant in a form that is based on in-service disorder claim that the informa- process, understand advising without personal assault first needed, who will be tion that is from sources that evidence the claimant infor- obtaining for responsible service records other than the veteran’s mation. changes may of behavior or evidence supporting evidence constitute credible 1333; see also Mayfield, 444 F.3d at Wil her allowing him or of the stressor 1055, 1059 Mansfield, 506 F.3d son type to furnish this (Fed.Cir.2007); Pelegrini Principi, potential evidence or advise VA (2004). 112, 119-20 Vet.App. evidence. sources of such acknowledges that The Court 3.304(f)(3) added). (emphasis 38 C.F.R. notifica requires while 38 U.S.C. accompanying Similarly, in comments VA’s adjudication of the prior to the initial tion final rule in the publication of the complete of a “[u]pon receipt explained the addi Register, Federal complete application,” see Pe substantially 3.304(f)(3) §in language tion of the timing legrini, “necessary to ensure that VA does may not feasible in claims for service the claim deny simply such claims because allega on an connection for PTSD based types not realize that certain ant did Rather, may assault. tion of in-service be relevant substantiate adjudi not be evident until after the initial 10,300. Fed.Reg. claim.” 67 his or her alleged stressors cation of a claim that the VCAA, Thus, because, like Therefore, personal relate to assault. provides preadjudicatory requirement unlike the notification of 38 that the claimant hope notification with the 5103, § applica is not U.S.C. participant an informed his claim can be connection for ble to a claim for service adjudicated in that his claim will be knows or has reason to PTSD until VA evidence, light potentially of all relevant raising know of the existence of evidence 10,331, Fed.Reg. at the Court be see 67 At possibility of an in-service assault.