Lonnie A. Overton v. R. James Nicholson

requirement notice was intended to inform OVERTON, Appellant, Lonnie A. up-front, claimants in “piece rather than fashion,” meal necessary the evidence “ prove the claim and to ‘expedit facilitate NICHOLSON, Secretary R. James ed decisionmaking’ ‘higher and satisfaction Affairs, Appellee. Veterans Nicholson, process.’ Dingess No. 02-1814. (2006) (quoting 146 Cong. 2000) (com (Sept. Rec. S9212 Appeals United States Rockefeller)). ment of Sen. for Veterans Claims. contrast, reviews final

Oct. decisions, which are rendered GREENE, panoply Before of a Judge, and of additional KASOLD, HAGEL, procedural requirements MOORMAN, designed to se LANCE, DAVIS, complete cure a and correct decision from Judges. Board. Dingess, See

490; 5103A, §§ see also 7105(d); 38 U.S.C. 3.103(b) (2006). § 38 C.F.R. Accordingly, ORDER 5103(a) any focus on section notice error PER CURIAM: would be incomplete without consideration procedural these other safeguards, and During the internal circulation of the a failure to consider them would eviscerate panel matter, decision in this judges three requirement that we take into consid requested full-Court consideration. See eration the rule of prejudicial error as it Court’s Internal Operating Procedures 5103(a) applies to a ¶ section notice V(b)(5). Dingess, See 490; see also On consideration of foregoing, 7261(b)(2) (Court § 38 U.S.C. shall take appearing that there majority is no in fa- due account of er of the request vor for full-Court consider- ror); Mayfield v. ation, it is (Fed.Cir.2006) [hereinafter ORDERED full-Court consider- Mayfield II];, Conway v. Principi, 353 ation is DENIED. (Fed.Cir.2004). F.3d 1374-75 As demonstrated in this review does

KASOLD, Judge, concurring: require factfinding by the Court in the instance, first itself made briefly I write to note that Judge Ha- factual findings had gel’s well-written dissent regarding section been satisfied. Overton v. 5103(a) notice fails to take into consider 433-34 5103(a) the fact ation that section is con cerned with notice preceding Moreover, the first deci has a statutory claim, on a sion see 38 U.S.C. (as (notice is to be “[ujpon receipt of well as to ensure with statuto- complete or substantially complete appli ry procedural requirements applicable af- cation”); see also Pelegrini Principi, 18 ter the claim), first decision on a and there (concluding is no basis for concluding that the Court in legislative based regulatory history any way relieves of his stat- that section given notice was to be utory obligations simply because the Court prior claim). to the first on a This finds that a final decision of the Board en decided should be that a case agree In- any prejudicial contain does not great importance, issues of authority to the banc resolve deed, we do not Vet.App. duties, that v. Mayfield his see Secretary of relieve (2005) (Kasold, J., concurring or 220, President 221-22 rests with prerogative consideration), the fact Moreover, join in I cannot en banc in denial of Congress. with unani panel is is the Overton suggestion of the matter implicit intentionally his of regard to the disregard mous with will majority of the duty. and a prejudice, notice of rule resolution. for further find no need Court ju appellate throughout Appellants have the burden generally landscape dicial HAGEL, whom DAVIS Judge, with persuading demonstrating error of join, dissenting: Judges, See, prejudicial. that such error is Court 109, 63 318 U.S. v. Hoffman, Palmer consid worthy of full-Court A matter is (1943); see also 87 L.Ed. “necessary S.Ct. is consideration eration such Vet.App. Mayfield v. uniformity of the a maintain to secure or (2005) discussing bur (generally 116-19 question or to resolve grounds, rev’d on other appeal), on dens Inter exceptional importance.” Court’s of II, routinely This Court supra. Mayfield V(a); see U.S. Operating nal Procedure v. e.g., Hilkert has held same. Vet.App. the rare case is R. Overton 35(c). banc) (en (1999) 145, 151 West, Vet.App. prongs of undeniably both satisfies demonstrating er of (appellant burden consequence, aAs standard. the relevant Brown, ror); Marciniak v. below, respect I reasons (1997) al has burden (appellant not to refer the decision fully from dissent Berger specificity); leging full composed panel that matter to a Brown, (ap Court. ap on persuasion has burden pellant encompassed within The standard peals); see also Proce Operating of Internal prong first allocation of bur (addressing V(a) because dure is satisfied appeal). dens Nicholson, 20 Vet. decision in Overton in supra, Moreover, although Pelegrini, (2006), with Pele inconsistent App. could panel in which the volved a case of this panel where grini sim Overton is regarding speculate because found Board error having Overton, the such a ply not case. notice had received deficient appellant Mr. Overton able to determine was 5103(a), to find refused under 38 U.S.C. partici meaningful opportunity had a do so nonprejudicial because such error Overton, 20 proceedings. pate that, pure speculation “would require Similarly, 440-41. he is enti to which given the notice once Quartuccio v. assuming arguendo definitely pro tled, could the appellant (2002), and Vet.App. 183 information obtain the VA to vide or lead Vet.App. 370 Charles necessary to substantiate or evidence (2002), considered claim.” service-connection not stand certainly do these cases not novel 112, 121 Pelegrini all section proposition for the prece- merely extended regard —it prejudicial. errors are already the to what dential value following the de practice standard with Court’s Thus, not inconsistent Overton Ap- States Moreover, cision of the United although cases. prior our (Federal peals for the Federal large Cir number cases. cuit) Conway 353 F.3d 1369 Because the Veterans Claims Assistance (Fed.Cir.2004).1 That came to an Act significant of 2000 is one of the most abrupt only in response pieces legislation end to this Court’s governing adjudi- Nicholson, in Mayfield decision v. 19 Vet. cation of claims for veterans benefits since (2005), App. 103 which was later reversed passage of the Veterans’ Judicial Re- Circuit, by Act, 100-687, 402, § 444 F.3d 1328 view Pub.L. No. 102 (Fed.Cir.2006). Overton, 4105, (1988), like this Court’s 4122 pronouncements Stat. it, in Mayfield before regarding application of the conflicts with Pelegrini, signifi prejudicial but alters respect error with to the cantly the manner provisions which this Court should have been made would reach a regarding determination with contemporaneous the full and partic- (or prejudice or a finding lack thereof after ipation Judges of all the of this Court. presuming) a duty-to-notify error under Because the subject sole issue that is the 5103(a).2 of the order from which I am dissenting is “exceptional importance”

The standard full whether court consideration of this warranted, embodied the second prong of Internal case normally would end V(a) Operating Procedure my However, has also been dissent here. considering met. The Court in key Overton discussed in the role of the Veterans Claims Assis- detail by the method which this Court is to tance Act within the fabric of the VA apply scheme, adjudicatory any diminution of context Secretary’s duty notify, of the to deserving statute’s effect is of at least an issue that will impact the result reached some comment. Nicholson, Meranda responsibility v. 2005 WL to include in its statement of (2005); Nicholson, 1389882 Mills v. 2005 WL ‘adequate’ reasons or bases an discussion of (2005); Kelly 1287997 v. 19 Vet. and, duty notify specify and to whether (2005); App. Sisley 510 v. No. 04- so, how by documents referred to 0109, 648277, WL Vet.App. 2005 2005 U.S. any ‘or other document in the record satisfied (Mar. 22, 2005); Taylor LEXIS 126 v. Nichol requirement.’ Vet.App. 18 at 120. son, (2005); 2005 WL 646731 v. Nichol Perez partic Without the Board's discussion of how son, (2005); WL 2005 1175078 v. Ni Effler satisfy duty notify, ular documents cholson, (2005); Negron- 2005 WL 497136 Court could adequacy never assess the of no 02-0777, Principi, No. 2005 WL Ortiz Mayfield. tice in accord with See 444 F.3d 1273902, (Jan. Vet.App. 2005 U.S. LEXIS 355 (Fed.Cir.2006) (holding that 16, 2005); Principi, Koldev. No. particular whether a document of record is WL Vet.App. 2004 U.S. LEXIS 908 satisfy duty sufficient notify is "a (Dec. 23, 2004); Principi, Dumana v. substantially factual determination” that must (2004); Ferguson WL 2965863 by instance). be made the Board in the first (2004); Vet.App. Forgione Principi, Unquestionably, there are some cases where (2004); Vet.App. No. 02- Craft discussed, duty need not be 2004 WL 2004 U.S. example, by where the facts as averred (Mar. 2004); Hagan LEXIS 132 v. Princi claimant could never result in pi, (2004). the award of benefits. See Valiao v.

2. Overton is also inconsistent with the Court's Overton is not such a decision in 370, Charles v. implication and the that the Board (2002), interpreted Pelegri as duty need not have even discussed the ni, which held that the Board erred notify at all in this case is inconsistent with adequately discussing the section Charles, interpreted Pelegrini. See Over the Court held ton, Vet.App. at 435-36. 7104(d)(1) § "under 38 U.S.C. Charles, Board's single- history, in this Court’s By way of defunct this Court’s Both Principi, after Conway judge decision rep- in Overton and its decision Mayfield the Secre- respect to error with finding an troubling departures stark and resent notify, tary’s compliance vacating a from this Court’s “It is diffi- as follows: concluded the Court remanding matter Board decision guidance additional discern what cult to error was a notice upon the veteran provided to could have VA under 38 Although U.S.C. committed. he should further evidence regarding what obligation 7261(b)(2), the Court bears While to substantiate claim. submit prejudi- of the rule of “take due account case to attempt in this will not error,” requirement is no cial there harmless address a in its decisions discus- the Court doctrine, approach- may the time be error account of it has taken due as to how sion Principi, 2002 Conway v. ing to do so.” Indeed, prior prejudicial the rule of 31941494, Claims U.S.App. 2002 Vet. WL Con- decision in the Federal to Circuit’s 2002). (Nov. 20, reversing In LEXIS 1073 for the Court it common way, supra, was decision, this Court’s Board vacate the find a notice to the “[a]lthough Veteran’s held that issue, the matter and remand decision an obli- not does unquestionably of in discussion engaging without ever expressly gation discuss to the of due account of rule it had taken how every opin- in prejudicial error each Quartuccio v. e.g., error.3 See prejudicial what ion, precisely it cannot do is ... what 183, 187-88 16 Principi, to flatly it refused here when it has done appeal decision on (vacating the Board account of the ‘take due matter, the without discus- remanding (em- Conway, 353 F.3d error.’ 7261(b)(2), added). of 38 U.S.C. sion phasis error). That, course, duty-to-notify Following the Federal Circuit’s Court, in all of not mean that does changed practice this Court’s Conway, in cases, take due account failed to those As a not in procedure in but substance. required by rule, unambiguously as is fact, between in the 18 months matter of must every in case. What it the statute deci- of the Federal issuance not mean, then, could is that in Conway and this Court’s sion nonprejudi- errors to be find those notice in excess this Court issued well those cial. in which it Were 100 orders decisions duty to respect have been vacated would not found issue, failed the Board decision notify, had vacated premise Board. matter and remanded with the comply 25, 2003); 02-1654, (Mar. Montemayor v. 220 Principi, LEXIS No. LaBier 21403042, 01-1948, 46246, U.S.App. Vet. Claims 2003 WL Principi, No. WL 2004 2004 2, (Feb. (Jan. 2004); Principi, Aitchison U.S.App. 2 462 LEXIS Vet. Claims LEXIS 2003 02-1666, 23833253, 01-1185, 2003 WL 11, 2003); 2003 No. No. Morse v. 10, (Dec. LEXIS 998 U.S.App. Vet. Claims U.S.App. Vet. WL 2003 01-0632, 2003); No. Garcia 10, 2003); (Feb. Rentz Claims LEXIS U.S.App. Vet. Claims WL 01-1566, WL No. 12, 2003); (Nov. v. Princi Davies LEXIS (Jan. U.S.App. Vet. Claims LEXIS 02-2433, 2003 WL pi, No. 01-920, 15, 2003); Principi, No. Francis v. (Aug. LEXIS 645 U.S.App. Vet. Claims U.S.App. Vet. WL 2003); No. Whitlatch 22, 2002). (Oct. Claims LEXIS U.S.App. Vet. Claims 2003 WL orders, In all of those decisions and includ notice letter combination with other ing precedential the aforementioned opin specifically designed documents not pro- 5103(a) notice.”). ion in the Court refused to en vide section gage “pure speculation” that would my Another of concerns is that have been to conclude that a no Court, establishing while a meaningful- tice error did the claimant. participation prejudice requires test that it at 121. novo, engage factfinding de has failed it, Mayfield before the Court casts aside a analyze authority, if any, engage myriad of its sound decisions and consis in such factfinding, even the limited tent without even recognizing the prejudicial-error Apart context. from the magnitude of its action. type fact that this factfinding de novo global have a number of more concerns effectively shifts the burden of ensuring with the Court’s decision in Overton. with the onto among them is that this Court has Board, this Court and off of the yet generally to establish a applicable questionable that engage we can even framework applying such an exercise because it is well estab- 7261(b)(2)’s mandate to take due account lished that we generally prohibited are Instead, in from in facts the first instance. view, myopic in Court Overton an West, Hensley 212 F.3d specialized nounces a “meaningful-partic (Fed.Cir.2000) (“[AJppellate tribunals are ipation” prejudice designed just test for appropriate not fora for initial fact find- dealing with duty-to-notify errors. To ing.”); First Interstate Bank v. United worse, Court, make matters in its zeal States, (Fed.Cir.1995) (“It 61 F.3d test, to set forth that predicates this new would be a distortion of our role to draw analysis, error, not on a finding of but on facts, about govern- conclusions as the Overton, an assumption of such. See asks, ment rather than having the trial (“[I]n Vet.App. at 434 order to determine court make findings light its own in whether the prejudicial, Board’s error was knowledge’ ‘actual standard that we have we will assume the notice pled by endorsed.”). fact, Circuit, In Overton.”); id., Mr. 20 Vet.App. at 439 in Conway, noted that de novo factfinding (“Thus, presuming we now ... must by this in prejudicial-error con- decide if that prejudicial.”). text was a potential problem. See Con- Indeed, as it did in its decision (“In way, 353 F.3d at 1375 n. 4 cases in in Mayfield, explicitly refuses to render a which the Board itself did not make find- determination as to whether the Board ings ... on ... permitting facts a conclu- actually fact, erred. See id. In rather sion of lack of from improper than confront question of whether the notice, questionable it is whether the Vet- Court can even assess the adequacy of the eran’s Court could arrive at the factual case, notice in the the Court sidesteps that conclusion regarding prejudice in the first question as well order to assume error instance.”). exists, Whether or not there question and reach the of prejudice. See exist, or special should exception for de id., (“Thus, on the facts novo factfinding prejudicial-error in the presented by this we do not answer context is a important matter far too to be the question of whether the Court could glossed by over the Court. find no notice error based on a single letter where the previously Board has troubling Even more is that the Court’s compliant by found referring to a decision Overton sidesteps the Federal decision. Circuit’s by the Federal under albeit abide Mayfield, error, the of prejudicial the cloak prejudi- Under applying the the rubric effect, has, done what stated majority the Federal Cir- Mayfield, In cial error. whether authority do—assess it had no notify “is duty to that VA’s cuit held documents, dif- issued commu- postdecisional post-decisional various satisfied information provide might purpose, a claimant ferent from which nications under section required evidence to infer VA have been able what 5103(a). through the gone The Court presen- lacking in the claimant’s VA found it could not accomplish what door back tation.” Overton, door. After through the front Cir- holding, the Federal do of that support no reason for under the Veter- there that notice cuit reasoned if this noncomplying documents rely on Act Assistance ans Claims those documents will consider contents to have different impact upon claimant’s determining their notices, and it is post-decisional from meaningfully participate ability to en- purposes designed for different —to before VA. adjudication of a claim present- case is that the claimant’s sure the initial decisionmaker ed most for last the serious I have reserved and to en- is available support whatever my concerns—that what understands that the claimant sure Congress’ purpose in frustrates Overton by the VA will be obtained evidence 5103(a) by de-emphasizing enacting section by the must evidence be what and for need for VA claimant. Secretary is ful to ensure the Fed As obligations. his notice effectively filling seeks this Court Id. In out, Mayfield aptly pointed holding by eral nullify the Federal Circuit’s 5103(a), Congress envi enacting section docu- acceptable to consider it pronouncing notification” and “a deliberate act ap- sioned the Federal Circuit that ments combination of “through a notification with the possible comply us cannot prised commu post-decisional pre-and a claimant unrelated determining whether statute With Over 1335. meaning- nications” opportunity “an was afforded apply ton, the rubric of under adjudication of in the fully participate error, frustrates Overton, ing 443. the rule Vet.App. at ... claim.” imposing upon the purpose in Congress’ undoubtedly undermines This allowing an notify by if post- Mayfield decision because documents noncomplying amalgamation of docu- noncomplying and other decisional Secretary’s in the away any error wash reflect opinion, in this Court’s ments obligation, so statutory awith compliance participation meaningful for opportunity that its own is satisfied long as the Court be of will never appellant, then it stan- “meaningful participation” Board fails nebulous any consequence 5103(a) decisions, (holding that section at 1333 regional F.3d example, VA office 4. For Case, different contents Supplemental State- notice "is of the Statements Case, notices, prior Board and Court it is de- and and post-decisional ments from the docu- types postdecisional are the purposes”), (holding signed different rely assess on to cannot may ments not be postdecisional documents notice, 5103(a) re- adequacy of section 5103(a), satisfy even section considered they before or issued gardless of whether are new section a claimant providing after attempted sec- readjudication any after claim). 5103(a) readjudicating the and Mayfield, 444 compliance. See tion dard has been sionmaking, begins satisfied. The effect of the very to erode the Court’s decision foundation of the plays now second fiddle to this Court’s determination as to whether a

claimant engaged “meaningful partic-

ipation” processing in the of the claim. As above,

mentioned precisely itself,

case Overton where the Court was

entirely unconcerned with whether there and, instead, awas notice error directed In re RULES OF PRACTICE its full attention to determining whether AND PROCEDURE. Overton, view, Mr. “meaningfully participated” Overton, Misc. No. 10-06. process. (“[I]n order to deter- United States Court of Appeals mine whether preju- the Board’s error was for Veterans Claims. dicial, we will assume the notice Overton.”); pled by Mr. Nov. (“Thus, presuming we now must ... GREENE, Before Judge, Chief and

decide that error ... prejudicial.”). KASOLD, HAGEL, MOORMAN, LANCE, DAVIS, and

Although imposes the statute a burden Judges. Secretary, this effectively Court has lifted the burden off ORDER

placed it squarely on the shoulders of the class of individuals whom the statute was JR., GREENE, WILLIAM P. protect enacted —veterans-benefits Judge: claimants. After it is the claim Pursuant to the authority of 38 U.S.C. ant plead who must “with considerable 7263(b) §§ and consistent with specificity” both how the notice was defec 2071(b) (e), 28 U.S.C. the Court has tive and what evidence the claimant would adopted a clerical revision to Rule requested or Secretary the Court’s Rules of Practice and Proce- obtain had the fulfilled his (Rules). dure It is Id., obligations. 435; 20 Vet.App. at ORDERED phrase jurisdic- that the “a see also at 121-22 requirement” tional shall be stricken from (“Applying the outcome-based definition of that, Rule accordingly, the at- proposes ... change tached hereby Rule pub- to assess the effect of a lack of section lished and will be effective as of this date. 5103(a)/§ 3.159(b)(1) notice would lead to an absurd RULE very result because the 39. ATTORNEY purpose FEES AND requiring EXPENSES that a claimant whose claim is missing necessary evidence be (a) notified of Application. An application pur- the information and evidence needed to 2412(d) suant to 28 U.S.C. substantiate the claim is so that the claim award attorney fees other and/or ant produce VA can that missing and/or expenses in a case must be filed with evidence.”). In so doing, the Court not days Clerk not later than 30 years backslides from of solid deci- judgment become final

Case Details

Case Name: Lonnie A. Overton v. R. James Nicholson

Court Name: United States Court of Appeals for Veterans Claims

Date Published: Oct 27, 2006

Citation: 20 Vet. App. 494

Docket Number: 02-1814

Court Abbreviation: Vet. App.