Lead Opinion
Veteran Lonnie A. Overton appeals, through counsel, a September 26, 2002, Board of Veterans’ Appeals (Board) decision that (1) found that VA had provided him with notice, compliant with 38 U.S.C. § 5103(a), of what was necessary to substantiate his claims, (2) denied increased disability rating claims for his VA service-connected left-knee disability and his right-knee disability, (3) denied a compen-sable disability rating for tinea versicolor, and (4) denied a rating of total disability based upon individual unemployability (TDIU). He contends that the Board erred in finding that he had received adequate notice under section 5103(a). Appellant’s (App.) Brief (Br.) at 1-5; App. Supplemental Memorandum of Law (Suppl. Mem. of Law) at 1-4. Therefore, he maintains that, pursuant to Quartuccio v. Principi,
We hold that the Board erred by relying, in part, upon a Statement of the Case (SOC), an SSOC, and a previous Board decision to conclude that adequate section 5103(a) notice had been provided to Mr. Overton. However, applying 38 U.S.C. § 7261(b)(2), taking due account of the rule of prejudicial error, and relying, in part, on the prejudicial error analysis in Mayfield v. Nicholson,
I. FACTS
In February 1987, Mr. Overton was awarded VA service connection for a left-
In June 1998, VA again denied Mr. Overton’s claims for increased disability ratings for his knee disabilities and a rating of TDIU. R. at 390-96. The RO did not address Mr. Overton’s tinea versicolor. Mr. Overton appealed, and the Board, in December 2000, remanded the matters to the RO for further development and adjudication. R. at 431-37. That same month, VA sent to Mr. Overton a letter that explained (1) that his claims had been remanded to the RO by the Board; (2) that VA was scheduling him for a medical examination; and (3) VA’s duties to assist him. R. at 440-41. In January 2001, Mr. Overton underwent VA medical examinations for joints, mental disabilities, and a skin condition, during which the examiner found “no evidence of tinea versicolor.” R. at 450-51.
In May 2001, the RO sent to Mr. Overton and his counsel a letter advising them of the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-M75, 114 Stat.2096 (codified, in part, at 38 U.S.C. § 5103(a)), and VA’s expanded duty to provide notice on how to substantiate his pending claims for increased ratings for his knee conditions and TDIU. R. at 483-87. No mention was made of the tinea versicolor claim. See id. After advising of general information on how to establish service connection, the letter provided in pertinent part:
What Must The Evidence Show To Establish An Increased Evaluation?
Symptoms and findings showing that your service[-]connected disability or disabilities have worsened and now meet the criteria for a higher evaluation. (This can be shown by medical evidence or other evidence showing your service[-]connected condition or conditions have become worse or more disabling. We will get any VA medical records or other medical treatment records you tell us about. If necessary, we may schedule a VA examination for you to get this evidence. You may also submit your own statements or statements from other people describing your physical or mental symptoms of a disability.)
R. at 484-85. There is no indication in the record that Mr. Overton or his counsel responded to that letter. See R. at 1-510. In June 2002, the RO issued an SSOC notifying Mr. Overton of a June 21, 2002,
[Communications from the VA to the veteran, including the August 1998 [Statement of the [C]ase, the December 2000 Board decision, RO letters dated in December 2000 and May 2001, and the June 2002 [SSOC] have kept [Mr. Over-ton] apprised of what he must show to prevail in his claims. The evidence appears to be complete. Consequently, there is no further duty to notify the veteran [of] what evidence he may submit.
Therefore, the Board finds that VA has met the notice and duty to assist provisions contained in the new law. In light of the notice and development action provided in this case, the Board also finds that it would not be prejudicial to the veteran to issue a decision at this time.
In the circumstances of this case a remand would serve no useful purpose. VA has satisfied its duties to notify and to assist the veteran. Further development and further expending of VA’s resources is not warranted.
R. at 6-7 (citations omitted). This appeal followed.
II. LAW and ANALYSIS
A. Standard of Review
A Board determination of whether section 5103(a) statutory and regulatory notice requirements have been complied with is “a substantially factual determination.” Mayfield v. Nicholson,
By statute, we review “final decisions of the Board.” 38 U.S.C. § 7266(a). “Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of law and regulation.” 38 U.S.C. § 7104(a) (emphasis added). The Board is required to include in its decision a written statement of the reasons or bases for its findings and conclusions on all material issues of fact and law presented in the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board’s decision, as well as to facilitate informed judicial review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
Section 5103(a) of title 38, U.S.Code, requires the Secretary to inform a claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if any. See Quartuccio,
In Mayfield I, this Court held that a VCAA notice letter that was in the record on appeal, but not discussed in the Board decision, adequately provided section 5103(a) notice. Mayfield I, supra. In Mayfield II, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that this Court could not make such a factual determination in the first instance. Mayfield II, supra. Further, the Federal Circuit observed that the duty of affirmative section 5103(a) notice is not satisfied by relying on various pre- and postdecisional communications issued for unrelated purposes from which
a claimant might have been able to infer what evidence the VA found lacking in the claimant’s presentation.... Congress envisioned a deliberate act of notification directed to meeting the requirements of section 5103, not an assemblage of bits of information drawn from multiple communications issued for unrelated purposes.
Mayfield II,
Here, the 2002 Board found:
[C]ommunications from the VA to the veteran, including the August 1998 [SOC], the December 2000 Board decision, RO letters dated in December 2000 and May 2001, and the June 2002 [SSOC] have kept [Mr. Overton] apprised of what he must show to prevail in his claims. The evidence appears to be complete. Consequently, there is no further duty to notify the veteran what evidence he may submit.
R. at 6. Thus, applying Mayfield II, we hold that the Board erroneously relied on various documents in the record, including documents that were unrelated to section 5103(a) notice, to conclude that Mr. Over-ton had been provided adequate section 5103(a) and § 3.159(b) notice prior to the RO’s June 2002 decision. Mayfield II,
Mayfield II precludes us from making a notice-compliance determination without a prior factual determination by the Board. Id. at 1333, 1335 (“The Board’s decision
The Court notes, however, that unlike the Board in Mayfield II, here, the Board specifically included the May 2001 VCAA notice letter among the documents it cited as providing sufficient notice. R. at 6. Thus, this case is more analogous to Conway, supra, and the Court may consider the May 2001 letter in assessing prejudicial error without violating the Chenery principle that a court reviewing an agency decision generally may not sustain the agency’s ruling on a ground different than that invoked by the agency. See Mayfield II,
Mr. Overton has specifically pled that VA never informed him of what information and evidence was needed to substantiate his claims. Therefore, in order to determine whether the Board’s error was prejudicial, we will assume the notice error, as pled by Mr. Overton. 38 U.S.C. § 7261(b)(2); see Mayfield II and Conway, both supra. If no prejudice would have resulted from the notice error, then a remand based upon a reasons-or-bases error would not benefit Mr. Overton and, therefore, would be pointless. See Soyini v. Derwinski,
C. Prejudicial Error Analysis
In Mayfield I, we provided an analysis of how we would take due account of the rule of prejudicial error when reviewing notice error. See Mayfield I,
A procedural or substantive error is prejudicial when the error affects a substantial right that a statutory or regu
The VCAA expanded the Secretary’s duties to notify claimants. Quartuccio, 16 Vet-App. at 186-87. Nothing in the VCAA, title 38 of the U.S.Code, the VCAA’s legislative history, or VA’s August 2001 regulations implementing section 5103, including their regulatory history, suggests that the VCAA and its implementing regulations were not intended to give a claimant a substantial right by way of amended section 5103(a) notice. Indisputably, section 5103(a) was enacted to ensure that VA advise claimants, early in the claims process, of what information is necessary to substantiate their claims and who would be responsible for obtaining that information. Pelegrini,
1. Burdens
The appellant carries the burden of persuasion regarding contentions of error. See Berger v. Brown,
Therefore, when an appellant contends that the Secretary erred in complying with the VCAA notice requirements, certain pleading requirements must be met to enable the Court to determine (1) whether there was error and, if so, (2) whether that error resulted in prejudice to the appellant. See Butler v. Principi, 244
We have previously explained the various elements of notice and the pleading burdens for alleging error in each of those elements. See Mayfield I,
Accordingly, even if an appellant fails to assert specifically how any alleged notice error prejudiced him or her, the substantive nature of that alleged notice error is such that the error, if found, has the natural effect of producing prejudice. See Marciniak, supra. Thus, when the appellant sufficiently pleads a first-element notice error, the burden shifts to the Secretary to demonstrate that there was no error or that the appellant was not prejudiced by any failure to give notice as to this element. Cf. Daniels v. Brown,
Section 5103(a) also requires the Secretary to inform a claimant of what information and evidence the Secretary will seek to obtain, if any, and what information and evidence the claimant is expected to provide, if any. See Quartuccio, supra. VA’s failure to provide notice on who should provide what information and evidence are considered second- and third-element notice errors. Mayfield I,
By regulation the Secretary must “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). This is the “fourth element” of notice and concerns VA’s failure to request from a claimant any evidence in his or her possession that pertains to the claim, and would be prejudicial only if the claimant actually had evidence in his or her possession that he or she had not previously submitted and that was of the type that should be considered by the Secretary in assessing the claim. Pelegrini,
Finally, it is well established that a claimant must be given the required section 5103(a) notice prior to the VA’s decision on a claim. Mayfield II,
2. The Scope of the Court’s Review in Determining Prejudice
The Federal Circuit has emphasized that this Court must “ ‘take due account of the rule of prejudicial error’ in all cases addressing the notice requirements in section 5103(a).” Conway,
When the Board makes a determination on notice, there is every reason to presume that the Board complied with its statutory directive that such decision be based on a thorough review of the entire record before it. See 38 U.S.C. § 7104(a). Thus, to examine whether an appellant had a meaningful opportunity to participate in the adjudication of his or her claim and was, therefore, not prejudiced by any notice error, we too must review all of the evidence that presumably was reviewed by the Board at the time of its decision, especially where the appellant had counsel representing him before the Board. See Barnett v. Brown,
S. The Effect of Having Representation by Counsel Before VA
There is a recognized difference in some contexts in the treatment of cases by VA and by the Court that is based on whether a claimant is represented by counsel. Cf. Andrews v. Nicholson,
D. Application of the Rule of Prejudicial Error
As we ruled in Mayfield I, reaffirmed in Coker, supra, and hold here, an appellant must identify with considerable specificity a notice error, especially in light of a Board determination that adequate notice was provided, and, as to second-, third-, and fourth-element notice errors, must further identify, again with considerable specificity, how the essential fairness of the adjudication was compromised by that error, i.e. leaving him or her unable to meaningfully participate in the adjudication of the claim. Mr. Overton, through counsel, argues as to each of his claims that the Board erred by finding that adequate notice had been provided to him because none of the documents relied upon by the Board provided him specific information on what evidence he needed to provide to substantiate his claims; he maintains that such lack of information compromised the essential fairness of the adjudication. App. Br. at 3-5; App. Supp. Memo, of Law at 1. He further contends that had VA provided the required first-element notice under the VCAA, “indicating specifically what information or evidence was needed to substantiate his claim, [he] may well have been able to provide his own medical evidence from private physicians addressing his claims.” App. Supp. Memo. of Law at 2.
Mr. Overton’s allegation of a first-element notice error is of the type that has the “natural effect” of producing prejudice. Therefore, assuming the existence of such an error, the burden shifts to the Secretary to demonstrate a lack of prejudice in terms of the fairness of the adjudication and opportunity for Mr. Overton’s meaningful participation in the processing of his claims. See Kotteakos v. United States,
To find that VA complied with section 5103(a), the Board summarily relied on “communications from the VA to the veteran, including the August 1998 [Statement of the [C]ase, the December 2000 Board decision, RO letters dated in December 2000 and May 2001, and the June 2002 [SSOC].” R. at 6. However, only the May 2001 letter could have potentially been considered adequate under section 5103(a). See Mayfield II, supra. Nevertheless, as instructed in Mayfield II, because the Board provided no specific discussion regarding how the May 2001 letter alone satisfied the notice requirements, we will not make such a determination. Id. Thus, presuming error, we now must take due account of the rule of prejudicial error, and decide if that error, as pled by Mr. Overton, was prejudicial to him. See 38 U.S.C. § 7261(b); Mayfield II,
1. RighL- and Left-Knee Claims
When considering whether Mr. Overton received adequate section 5103(a) notice, the Board erred by relying on various postdecisional documents that were unrelated to the pre-decisional communications that provided notice of the elements found in 5103(a). See Mayfield II,
Mr. Overton, through his counsel, first sought increased ratings for his knee disabilities in September 1993. R. at 260-62. At that time he recited the specific regulations and diagnostic codes that he felt VA should consider in adjudicating his claim, and stated that his “disability has increased in severity” and that he was experiencing “pain, weakness[,] and functional loss.” Id. at 261-62. Ratings in excess of 10% for each knee were denied by the RO in October 1994. See R. at 283 (“In determining evaluations for disability involving the knee, consideration is given to objective evidence of limitation of flexion and extension, subluxation, lateral instability, painful motion, weakness and radiological findings demonstrating joint abnormality.”). Mr. Overton disagreed and in October 1995 the RO awarded an increased rating for his right knee (to 20% disabling), and continued the 10% rating for his left knee. That decision described the criteria used to determine knee disability ratings in general, the specific requirements for the rating Mr. Overton was seeking, and why his disability picture did not warrant higher ratings than those assigned. See R. at 316 (discussing the specific criteria for 10%, 20%, and 30% ratings and explaining how Mr. Overton’s medical evidence did not meet the higher-rating criteria).
Thereafter, from 1995 through 2002, Mr. Overton, through counsel, continued his disagreement with his assigned ratings, and on numerous occasions received detailed information from VA as to the criteria necessary for a higher rating, and the reasoning as to why his condition did not demonstrate that increase was warranted. See, e.g., R. at 326-30 (1995 SOC detailing relevant diagnostic codes and reviewing Mr. Overton’s medical evidence), 390-96 (1998 RO denial comparing Mr. Overton’s medical picture to next higher rating criteria), 408-20 (1998 SOC-same), 435-37 (2000 Board remand discussing need for medical examination and consideration of Deluca v. Brown,
In May 2001, prior to the RO’s June 2002 denial of his claims, the RO sent to Mr. Overton, through his counsel, a letter notifying him of the enactment of the VCAA, and detailing the new notice and assistance requirements as they pertained to his claim. Regarding his knee disabilities, the letter stated:
This letter will tell you about VA’s duty to explain to you what information or evidence we need to grant the benefit you want and the VA’s duty to assist you in obtaining evidence for your claim as well as what the evidence must show to establish your claim. Also, this letter will tell you what we have done to help with your claim and what information and evidence we still need from you including when and where you should send it. Finally, this letter will tell you how to contact us, if that is necessary.
R. at 483. The letter also stated that, for Mr. Overton to establish entitlement to an increased rating, “the evidence must show that [his] service[-]connected disability or
In the adjudication of a claim for a rating increase, “ ‘the present level of disability is of primary concern.’ ” Pierce v. Principi,
A TDIU
With regard to VA’s adjudication of Mr. Overton’s claim for TDIU, the record on appeal establishes that, when applying for TDIU in September 1993, Mr. Overton’s counsel stated to the RO:
The Veteran is claiming individual un-employability due to service-connected disability in accordance with 38 C.F.R. [§ ] 4.16.
The Veteran is unable to secure and follow substantially gainful occupation by reason of service-connected disabilities. Pursuant to 38 C.F.R. [§ ] 4.16(b), the VA should submit this Veteran’s case to the Director of Compensation and Pension Service for extra-schedular consideration.
R. at 262. Further, in August 1995, Mr. Overton, while still represented, filed with the RO a VA Form 21-8940, Application for Increased Compensation Based on Un-
Entitlement to [TDIU] is denied because the claimant has not been found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Service-connected disabilities currently evaluated as 30[%] do not meet the schedular requirements for entitlement to [TDIU]. 38 C.F.R. § 4.16 [(1997)] provides that individual unemployability may be granted where there is one disability evaluated as 60[%] disabling, or two or more disabilities, one of which is 40[%] with a combined evaluation of 70[%] or more. These percentage standards are set aside only in exceptional cases where there is an unusual factor of disability rendering the veteran unable to secure or follow a substantially gainful occupation .... This case has not been submitted for extra-schedular consideration because there are no exceptional factors or circumstances associated with the veteran’s disablement.
The evidence of record does not show that the veteran is unemployable due solely to his service connected right[-] and left[-]knee and skin condition^].
R. at 395. In the July 1998 SOC, the RO again advised Mr. Overton of the pertinent laws and regulations regarding TDIU and informed him that his claim was denied because he had not been “found unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.” R. at 408-20. In December 2000, the Board remanded Mr. Overton’s claim to the RO for development and stated:
The veteran should be afforded a VA orthopedic examination to ascertain the severity of [his] service-connected residuals of bilateral knee injuries.... The examiner should also offer an opinion as to whether the veteran’s residuals of bilateral knee injuries, to include post-traumatic arthritis, render him unable to engage in or maintain employment. The claims file must be made available to the examiner for review.
The veteran should also be provided with a VA skin examination to determine the current severity of his service-connected tinea versicolor. The claims file should be made available to the examiner for review.
R. at 435-36 (emphasis in original). The May 2001 letter that followed did not notify Mr. Overton and his counsel specifically of what was necessary to substantiate his TDIU claim, however, it did inform him that VA would assist him in obtaining evidence for all of his claims, what he could do to assist in the development of his claims, and provided information on how any questions about the development of his claims could be answered. See R. at 483-87. These documents were provided before the readjudication of the TDIU claim by the RO in June 2002.
Although the Board erred by relying on various postdecisional documents that were unrelated to the predecisional communications that provided notice of the
S. Tinea Versicolor
Concerning Mr. Overton’s tinea versicolor claim, the Secretary maintains that it is “unreasonable to believe that [Mr. Overton] did not understand the need to submit evidence showing that his service-connected conditions had worsened.” Secretary’s Supp. Memo, of Law at 4. He argues that the May 2001 letter from the RO informed Mr. Overton of the new VCAA regulations and of what he needed to substantiate his increased-rating claims, and he contends that “[t]here can be no prejudice when the purpose behind the notice has been satisfied.” Id. at 2, 4.
Although the May 2001 notice letter discussed generally what evidence was necessary to obtain an increased disability rating, the letter explicitly listed Mr. Overton’s claims as “pending appeals for service connection for a neuropsychiatric disorder, entitlement to increased evaluations for your service[-]connected bilateral knee conditions, and entitlement to [TDIU].” R. at 483. There was no mention of Mr. Overton’s increased rating claim for tinea versicolor. See R. at 483-87. Thus, the letter cannot be considered informative on Mr. Overton’s tinea versi-color claim. Moreover, although the general information provided to Mr. Overton regarding his rating increase claims for his bilateral knee conditions was equally true for his tinea versicolor claim, nothing in the RO’s May 2001 letter notified him of that fact.
The only other documents relied upon by the Secretary to demonstrate a lack of prejudice are the October 1995 and June 1998 RO decisions, and the June 2002 SSOC. Secretary’s Supp. Memo, of Law at 4. The SSOC came after the RO’s readju-dication of the claim and, therefore, could not have assisted Mr. Overton in participating in that adjudication itself. Further, although RO decisions in October 1995 and June 1998 explained the requirements for disability ratings of 0% and 10% for tinea versicolor (R. at 316, 395), nothing in the record indicates that Mr. Overton was ever adequately informed of what evidence was necessary to substantiate his claim for a compensable disability rating for that condition. Moreover, the record does not
III. CONCLUSION
Upon consideration of the foregoing, that portion of the September 26, 2002, Board decision that denied Mr. Overton’s claims for increased ratings for his right- and left-knee conditions and denied him a rating of TDIU is AFFIRMED. That portion of the Board decision that denied his claim for an increased rating for tinea versicolor is VACATED and that matter is REMANDED to the Board for further adjudication consistent with this opinion.
Notes
. We need not, and do not, decide here (1) whether the Court may examine the May 2001 letter, alone, to determine whether Mr. Overton had a meaningful opportunity to participate in the adjudication of his increased-knee-rating claims, and, if so, (2) whether that letter alone provided such a meaningful opportunity as to render any notice error nonprejudicial.
Concurrence Opinion
concurring in part and dissenting in pai"t:
I fully concur in the majority’s discussion of how this Court is to “take due account of the rule of prejudicial error” and the burdens and pleading requirements of the parties in this context. I write separately, however, because I disagree with the majority’s narrow view of the effect that representation by counsel before VA has on a claimant’s opportunity to meaningfully participate in the adjudication of his or her claim. In my opinion, the fact that Mr. Overton has been represented by the same counsel since 1993 in pursuit of increased ratings for his service-connected disabilities and an award of TDIU is dispositive.
To be clear, I agree with the majority that a claimant’s representation by counsel does not relieve the Secretary of his statutory obligation, upon receipt of a complete or substantially complete application, to provide a claimant and the claimant’s representative with section 5103(a) notice. However, when considering whether the Secretary has provided VCAA compliant notice, we are also required to “take due account of the rule of prejudicial error.” Conway,
The majority acknowledges that representation by counsel will effect a claimant’s ability to meaningfully participate in the adjudication of his claim. Yet, when considering whether the failure to provide compliant notice was prejudicial, the majority would limit the effect of attorney representation and only attribute to the claimant “the attorney’s actions and communications.” Ante at 439. This ignores an attorney’s professional and ethical responsibility to be competent and knowledgeable of the law. See Model Rules of PROf’l Conduct R. 1.1 (“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”); see also U.S. Vet.App. R. Adm. & Prac. 4(a) (adopting Model Rules of Professional Conduct). It also ignores the reality that “[t]he relationship between an attorney and the client he or she represents ... is one of agent and principal.” Veal v. Geraci
It is precisely because of the nature of the attorney-client relationship and the attorney’s specialized knowledge and experience that I cannot endorse the majority’s view which seemingly requires counsel to demonstrate his competence before we attribute his knowledge to a claimant.
The majority’s limited focus would create a presumption that an attorney does not know how to prove a claim for VA benefits unless and until told how to do so by the Secretary. This presumption of attorney ignorance is fundamentally inconsistent with an attorney’s ethical obligation to know the relevant law in any area in which he or she practices. Therefore, I cannot endorse the position that a claimant who has had continual attorney representation throughout did not have a meaningful opportunity to participate in the adjudication of his or her claim.
Notwithstanding this general statement, I recognize that there may be circumstances in which a notice error may be prejudicial to a claimant who is represented by counsel. For example, there may be instances where an attorney’s involvement is so limited or too late in the process that VA’s failure to provide section 5103(a) notice would have effected the claimant’s ability to meaningfully participate in the adjudication of his or her claim. That is not this case. Mr. Overton has been continuously represented since 1993 by the same counsel and, therefore, it cannot be said that he did not have a meaningful opportunity to participate in the adjudication of his claims merely be
. To the extent that an attorney may be incompetent, the law does not leave a claimant without remedy. The claimant’s remedy is against the attorney in a claim for legal malpractice. Cf. Nelson v. Nicholson,