*1 The majority’s opinion will expand this jurisdiction
Court’s to review matters ad
dressing not the merits of appellant’s
argument, but whether CUE motion con specific
tains allegations. clear Case-
law from the majority of other circuits
refrains addressing this type of mat
ter to foreclose the possibility of piecemeal
litigation. This decision has potential
to increase the time it will take for an
appellant to receive final judgment in his
or her case. Even if this Court were
find the Board erred and appel plead
lant had with specificity, the Court adjudicate
could not claim; most, it
could remand case back to the Board
for the address the issues
first instance. Alternatively, if we were to
affirm the Board’s holding, that determina
tion has no preclusive effect; by statute,
the appellant can always amend and refile
the motion with the Board. See 38 U.S.C. 7111(e). Because I believe the Court’s
decision only will have the effect of ex
panding our caseload to include review of
administrative matters and lengthening
the time it takes for an appellant to receive
a decision merits, on the I respectfully
dissent. PRICKETT,
Pauline Appellant,
R. James NICHOLSON, Secretary Affairs, Veterans Appellee.
No. 04-0140.
United States Court of Appeals
for Veterans Claims.
Argued June 2006.
Decided Sept.
that denied her service-connection claim for the cause of her husband’s death. addition to two secondary arguments on appeal, this requires case us to decide *3 whether complied with its 38 U.S.C. § notification requirements pursu- ant to the Veterans Claims Assistance Act Pub.L. 106-475, No. 3(a), (VCAA), Stat.2096 despite its failure to provide notice before an initial rating deci- sion, and whether VA was required, to the principles of fair or due process, to inform Mrs. Prickett of (DRO’s) decision review officer’s re- quest for VA opinions medical and pro- vide her a copy opinions an opportunity to challenge those opinions prior to the issuance of the DRO’s deter- mination. For provided the reasons be- low, we affirm the Board’s decision as to the service-connection claim.
I. BACKGROUND World IIWar veteran David E. Prickett served on active duty in the Air U.S. Corps Ground Crew from December 1942 to October 1945. In November he was awarded service connection psy- for Allan Hubbard, C. chosis at a 100% Washington, D.C., disability rating. That for the appellant. disability rating eventually was reduced to 10% in January 1950 signs after of marked Gary Connor, O’ with whom Tim S. improvement. In the early 1980s, Mr. McClain, Counsel; General R. Randall Prickett was first diagnosed as having hy- Campbell, Assistant Counsel; General pertension and potential coronary heart Richard Mayerick, Deputy Assistant Gen- disease. May 1982, a VA regional office eral Counsel, all of Washington, D.C., were (RO) denied him entitlement to service on the brief for the appellee. connection for his heart-related conditions grounds that there KASOLD, Before was no HAGEL, evidence DAVIS, in his service medical Judges. records of hyperten-
sion or heart disease and that there was no DAVIS, Judge: evidence establishing a nexus between his psychiatric service-connected condition and appellant, The Prickett, Pauline the sur- heart disease. The Board affirmed that viving spouse of World War II veteran determination in June 1984. Prickett, David E. seeks, through counsel, review of a 7, 2003, November decision of Mr. Prickett died in February 1991. the Board of (Board) Veterans’ Appeals His death certificate listed end-stage con- (VSO) represen- organization service erans arthrios- due to cardiomyopathy gestive as tative. disease cardiovascular chlerotic list- mellitus Diabetes death.
cause a deci- issued DRO In August but contributor significant as ed Case a Statement form of sion Following death. cause underlying an determined the DRO (SOC). Because widow, Pauline death, his the veteran’s since submitted dependency Prickett, claim filed a was both initially denied (DIC), asserting indemnity compensation material, reopened the DRO new death husband’s that her cause-of- service-connection psychosis. his service-connected result of *4 However, the evi- based on claim. death her entitle- 1991, denied the RO April In that determined available, the DRO dence “[t]here grounds on DIC ment to on the denied remain should claim her veter- [the] relationship between no [was] relationship no “there is grounds dis- [psychological] an’s service-connected military ser- veteran’s between shown Neither of his death. the cause ability and disor- psychotic vice, his service-connected disability hasten the service-connected did R. 793. at death.” and his der (R.) 501. Mrs. Record his demise.” decision, there- appeal did not Prickett a held 2001, the DRO In November it final. rendering by participat- Mrs. Prickett hearing which in re- the DRO hearing, During the ed. 2000, denied Mrs. the RO February In Mrs. Prickett informed peatedly previously her reopen attempt Prickett’s a medical evidence, particular, in medical claim service-connection denied between a nexus demonstrating on death husband’s her of cause death, of cause and service veteran’s and new submit failed that she grounds her of disposition to the critical was 2000, filed she May In evidence. material evidence. such to submit her asked (NOD). May In Disagreement of a Notice cur- she said that However, Mrs. Prickett letter, a Prickett Mrs. RO sent submit. evidence such no rently had notify of duty to informing her VA’s request- DRO hearing, the Following the needed evidence or the information an endocrinolo- cardiologist a ed and of VA’s she benefit wanted grant review specialist mellitus or diabetes gist that infor- obtaining assist her duty to to determine file claims Prickett’s Mr. May (hereinafter the or evidence mation be- relationship existed a nexus whether let- letter, notification or 2001 notification cause his service and veteran’s tween re- month, Prickett Mrs. ter). same That evidence There no death. informing the RO a letter ceived represen- or her Prickett Mrs. record (VAMC) center VA medical that additional development informed tative and that requested records or com- to review opportunity had the or once such issued would be DRO decision request. specifics of ment 2001, the In June obtained. were records copy received the RO January Mrs. informed RO mellitus diabetes results no were records VAMC requested The VA exam- examinations. cardiology also available longer evidence was no there opined iners tell or evidence “may she service existed condition either in that may request [it] about [VA] Prickett’s causally related That 686. R. at claim.” support [her] condition. psychological vet- Prickett’s to Mrs. sent also letter was In February 2002, the DRO issued condition and the cause his death. R. at Supplemental (SSOC), SOC informing Mrs. Prickett of additional developments
since
August
2001 SOC. The SSOC
II. DISCUSSION
specifically mentioned
procure-
the DRO’s
ment of the January 2002
specialists’
A.
§
38 U.S.C.
Notification
opinions. The cover letter attached to the
SSOC informed her that
the purpose of
(i) Contentions on Appeal
sending her this information
give
was to
her the “opportunity
to make
com-
On appeal, Mrs. Prickett
first argues
ment [she] wish[ed] concerning the addi-
that the Government erred in several re-
tional information in the enclosed [SSOC]”
spects with regard to VA’s before placing her records on the Board’s duties pursuant
5103(a).
38 U.S.C.
docket. R. at 994. The SSOC and cover She contends that
the Board failed to
letter were also sent to her VSO represen- make a conclusion in its statement of rea-
tative.
In June
ap-
sons or bases that VCAA notification docu-
peal was
certified
transferred to the ments
*5
complied
alone
with the VA’s sec-
5,
Board.
2002,
On June
she appeared
5103(a)
tion
notification requirements.
personally before the Board
provide
Rather, she contends that the
im-
Board
testimony concerning her appeal.
permissibly relied on a combination of no-
In
2002,
October
the Board affirmed the
tification documents and decisional and
DRO’s decision
deny
Mrs. Prickett enti- postdecisional documents to conclude that
tlement to service connection for the cause
5103(a)
section
notice had been satisfied.
of her husband’s death. However, that
reason,
For that
she argues
pursuant
that
decision was set
aside
to a Court
to Mayfield
Nicholson,
v.
record does not reflect that a copy of that by which VA attempted to cure its initial letter was also sent to Mrs. Prickett. In timing defect because VA failed to issue a its decision here on appeal, the Board second rating decision following the May again affirmed the DRO’s determination. 2001 notification letter. She The Board further con- concluded that “the evidence tends that the generic shows that the notice letter cardiovascular she disorder and diabetes received was in resulted in insufficient its attempt veteran’s death satisfy were 5103(a) not present VA’s during section service or notification re- manifested year quirement. within one service,” end, To this she asserts that that the evidence failed to establish a rela- where notification is issued to cure a tim- tionship between the veteran’s psychiatric defect, ing specialized notification is re-
375 Board’s the deficiencies by ignoring exists that the record on based quired notifica- that the concluding discussion of issuance.1 time 5103(a) section VA’s satisfied letter tion that Secretary contends response, In in- first in requirements duty-to-notify distinguish- clearly is decision held that Circuit stance, Federal Mayfield in decision this Court’s from able violated Mayfield decision Court’s a factual rendered here the because principle law administrative longstanding section VA’s determination agency decision reviewing an met a “court requirements duty-to-notify agency’s sustain the may letter. generally notification 2001 May through the different provide ground aon ruling failed VA concedes He (cit- 1335 deter- Id. at initial agency.” to its prior by notification invoked VCAA However, Chenery as- he claim. Comm’n & Exch. ing mination Sec. May the issuance that, through 63 S.Ct. serts U.S. Corp., DRO follow-up (establishing the doctrine notification L.Ed. SOC, August a de- issued dealing decision reviewing court addition, timing defect. cured an adminis- judgment termination the Court contends Secretary make authorized is alone agency trative argument appellant’s reject the should action of such propriety judge must because required notification specialized agen- invoked grounds solely on the assessed cannot be VCAA cy)). rather, notifi- because terms; categorical notification discus- its the outset At deter- issue, be it must factual is a cation discussions that “the sion, states the Board and the basis case-by-case aon mined *6 [SOC], the decision, the rating in the determi- to the defer Court should appellant to the [SSOC], sent letters nation. evi- the information her of Regarding Findings (ii) Board’s the to substantiate needed dence 5103(a) Section Notification require- notification with VA’s complied Ap Court the U.S. Mayfield, In asserts Mrs. Prickett R. at ments.” (Federal Cir the Federal Circuit peals the Feder- contravenes this statement determination cuit) the Board’s held Mayfield, therefore holding al Circuit’s require 5103(a) notification section cannot Court The remand. requiring through a combination met be could ments interpretation narrow with agree postdecisional decisional unrelated state- Reading the statement. the Board’s interpre incorrect was an communications discus- of the Board’s context ment F.3d 444 Mayfield, See of the law. tation was whole, statement the Board’s aas sion emphasized Circuit Federal The at 1335. through finding that aas intended not 5103 of section meaning plain documents postdecisional pre- and various issued to be notification VCAA requires met. 5103(a) had notification claim, section the initial decision “prior generally Rather, concluded Moreover, the Board at 1333. Id. afterwards.” not speci- considerable identify, "with appellant specifically not has appellant 1. Because and, defective was notice require- ficity,” how notice regulatory how the asserted pro- have (2005) would appellant was 3.159 what C.F.R. 38 under ment Secretary to obtain ultimately requested error such vided or how defective these obli- address notice Secretary not his will fulfilled Court prejudicial, Nicholson, 19 Coker appeal. See gations). issues that the (2006) (requiring Vet.App. 442 376 that through pre- postdecisional docu- letter alone 5103(a) satisfied VA’s section
ments, all VA’s notification requirements, duty-to-notify requirements, the Court just 5103(a) notice, section had been must first address Mrs. argu- satisfied. ment that VA failed properly cure the timing-of-notification
More importantly, even defect by not assuming issuing Court agreed rating with second following decision Prickett’s nar- the May row interpretation, 2001 we agree because, cannot letter. This is if Mrs. Prick- her that remand required is ett is correct that a second rating decision Mayfield and Chenery required, doctrine. This May 2001 notification let- is because reading the Board’s ter notification would itself be a postdecisional docu- discussion whole, as a the Court is satis- ment and unable to satisfy 5103(a) section fied that unlike the Board in Mayfield, requirements. notification Board here rendered a factual determina-
tion that the
While
May
recognizing
VCAA noti
letter
alone
fication
satisfied
VA’s section
intended to
place
take
duty-
prior
to-notify
to,
requirements.
rather than
decision,
following,
its
the initial deter
the Board
nearly
dedicated
claim,
two
mination on a
pages of
the Federal Circuit in
discussion to
May
Mayfield
letter
also recognized
alone.
may
Quartuccio
Citing
v. Principi, 16 Vet.App.
cure timing defects through compliance
(2002),
the Board stated
May
that the
with proper remedial measures. The Fed
“provided
appellant
with a
eral Circuit specifically mentioned two re
specific explanation of
type
of evidence
(1)
medial measures:
The issuance of a
necessary to
claim,
substantiate her
as
fully compliant VCAA notification, followed
well as an explanation of what evidence the
readjudication of the claim. See
VA would attempt to obtain on his behalf.” Mayfield,
377 Ac- death. his cause and an’s service postdeci- itself document cause complied SOC August cordingly, Federal interpret to refuse sional. We notifi- and process due applicable narrow all with Mayfield in so statement Circuit’s requirements. the claims to start cation YA require ly as to process adjudicatory anew. VA’s process allowing VA contends ensure to measures established includes in the form readjudication notify her of to go back to not have a does claimant apple away her bite takes of an SOC a defect when process beginning argument, This review. RO additional or addition place taken has process in the ad the VA however, the fact ignores pre has been or evidence al information afford designed is system judicatory relies process Specifically, sented. ev and the Government the claimant both by made determinations reviews disagreement a to resolve ery opportunity DROs, the Veterans ROs, VA to a resorting before parties between (VSCM). See managers Center Service adjudica Appeal and Substantive (autho (2006) § 3.2600 38 C.F.R. generally fol disagreement a If remains tion. there by DROs review novo rizing de SOC, is still an VA lowing the issuance must be VSCMs). determinations Such § to U.S.C. required applica the same with compliance made in action or review development such “take re due ble that dis to resolve proper” deems as it rat of initial required that are quirements 7105(d). Any de § U.S.C. agreement. id.; C.F.R. also 38 see See ing decisions. or development resulting from such cision process and due (procedural § 3.103 pursu in an SSOC issued action is review a long as determina As rights). appellate designed 19.31, § C.F.R. ant re compliance is made tion material appellant to “inform draw a need no we see quirements, to, information in, additions or changes adjudicatory an whether as to distinction any prior or to [SOC] included rating decision in a issued decision (2005). 19.31(a) C.F.R. [SSOC].” an SOC.2 disagree is clear it Only when clearly indi- Here, 2001 SOC August RO at the level be resolved cannot ment service-connec- cates adjudicated be the matter must her husband’s cause of tion testimony, Here, through personal Board. fol- readjudicated properly had been death development, evidentiary timing-of- cure attempts lowing VA’s form action review subsequent in- 2001 SOC August The notice defect. made ev SSOC, the DRO February 2002 a review after Mrs. Prickett formed dis Mrs. Prickett’s resolve attempt to ery *8 after the before received the evidence transferred matter was pute before letter, service- May 2001 the Board. claim remained death connection-cause-of to start claimant addition, a requiring a state- provided also The SOC denied. would ulti- from scratch claim his or denial, in or bases reasons ment of families. their veterans mately hurt of evidence the lack noting particular, increase would requirement Such veter- demonstrating nexus between However, we note 5103(a) case, notification. the Court this Although at issue in not 2. follow- during failure Secretary’s comments agrees with a waiv- may constitute ing proper notification determination that a argument oral error harm- render readjudication er of "readjudication” proper may constitute not followup less. section aof following the issuance 378
chances that a veteran or his or her surviv-
exceptions or purport
to exclude certain
ing spouse would fail to file a
NOD,
second
categories of factual findings from the
thereby preventing appellate relief.
It
‘clearly
review,”
erroneous’ standard of
require
would also
the claimant and Gov- even for
Flores,
so-called “ultimate facts.”
ernment to start the claims
review
19
522;
Vet.App. at
see also Pullman-
scratch,
from
which would likely increase
Swint,
Standard
273, 287,
456 U.S.
102
the workload at
the lower adjudicatory
1781,
(1982)
S.Ct.
(iv)
in Mayfield
clear,
made
Court’s Review
determi
Board’s
nation of
5103(a)
5103(a)
whether section
Section
notifica
Notification
tion has been met through predecisional
Findings
communications “turns on what inferences
(a) Standard of Review
agency
draws
it,”
the facts before
Having concluded that VA properly
therefore,
such determinations are
cured the timing-of-notice defect and that
squarely within the province of VA. See
the Board rendered a determination
Mayfield,
1335;
F.3d at
see also Mil
May
2001 notification letter
Fenton,
alone sat
ler v.
104,
113-14,
U.S.
5103(a)
isfied VA’s section
duty-to-notify
S.Ct.
(1985).
termination” which must be
made
(1948)). When applying
standard,
in the first instance.
Id.
“ ‘[i]fthe [Board’s]
account
the evidence
The Court reviews factual determi
plausible
in light of the record viewed in
nations under the “clearly erroneous” stan
its entirety, the
*9
may
[Court]
not reverse it
dard
review.
See
38 U.S.C.
even though convinced that had it 7261(a)(4).
§
As this Court noted in sitting as
fact,
the trier of
it would have
Nicholson,
Flores v.
Vet.App. (1994), the Court clarified Contentions expanded upon Thurber’s holding. Austin, the Board’s request written for an With regard to Mrs. Prickett’s first contentions&emdash;the pro- medical opinion contained second DRO’scurementof acting opinions Board member’s own that VA medicalwithout consent there was no pro- relationship between the and the DRO’sfailureto videher copy claimant’s opinions service and his meaningful current condi with a opportunity addition, tion. In agree although the Board com respond&emdash;we Secretary plied with requirement consistently Thurber’s of send this Court limiteda has ing the claimant the opinion, medical the Thurber/Austin duty-to-act situations procured accompanying opinion informed evidencewas representative claimant’s that he could following the Board following the
381
her
and
Third,
Prickett
Mrs.
at 994.
R.
or SSOC.
SOC
recent
most
the
issuance of
a written
to make
failed
representative
West,
Vet.App.
12
v.
See,
Anderson
e.g.,
medical
of those
copy
a
for
application
claimant’s
the
(1999) (noting that
491, 497
provided
have been
would
opinions,
unavailing because
was
argument
Thurber
regulations
and
statutes
to VA
in
opinion
the medical
in Thurber
unlike
5701(a),
§§
38 U.S.C.
See
request.
upon
to the issu-
prior
procured
was
Anderson
Anderson,
Vet.App.
5702(a)(1);
(b)(1),
SSOC);
or
recent SOC
most
the
ance
1.501(b)(1),
§§
494-95;
38 C.F.R.
at
148, 155
West, Vet.App.
Velez
Prickett’s
(2005). Finally, Mrs.
1.526(a)
not
was
error
Thurber
(holding that
actively participated
representative
office,
regional
it was the
where
implicated
the
in which
hearing,
Board
June
the
inform
to
Board,
failed
that
the
not
evidence, in particular
medical
need for
a VA
respond
could
he
that
claimant
repeatedly
was
opinions,
nexus
medical
rebut-
evidence
or submit
opinion
medical
Mrs.
fair to
was
process
Such
discussed.
(“[An]
see id.
opinion);
that
ting
first
therefore,
reject her
we
Prickett, and
evidence
additional
to submit
right
Austin
er-
process
of fair
assertions
second
and
de-
the
where
in
situation
arises
ror.
the issuance
after
evidence
velops new
SSOC, a situation
or
recent SOC
most
and
Process
Fair
(Hi) Thurber/Austin
here.”).
presented
not
Contention
Third
Prickett’s
Mrs.
Secre
agree
further
We
argument-;
As to Mrs. Prickett’s third
in
opinions
medical
procured
DRO
decline
should
tary that we
limits
impartial manner-;we
that
any case
overrule
request
a biased and
find no
the DRO’s
that
her contention
in
merit
requirement
duty-to-act
Thurber/Austin
vio-
opinions
medical
procuring
for
request
fully satisfied
We are
the Board.
As-
process.
of fair
principles
lated
in
process
adjudicatory
pre-Board
development
stages
all
suming that at
Prickett, who was
fair,
was
case
in
evidence
procure
must
that VA
claima
ev
counsel,
provided
represented
manner,
can-
we
neutral
unbiased and
an
in
opinions
review
ery opportunity
of the DRO’s
our review
on
say, based
not
information
rebuttal
question
medical
letter,
November
undisputed
First, it is
evidence.
unfairly. Austin
requested
were
opinions
requesting
in
properly
DRO
acted
all
principle
for the
not stand
does
evidence
as such
opinions
medical
be
must
a VA medical
for
requests
Prick-
develop Mrs.
properly
necessary
approval
a claimant
submitted
February 2002
Second, the
claim.
ett’s
holds
Rather,
simply
Austin
comment.
to Mrs.
SSOC,
mailed
which was
in a
conducted
be
must
requests
informed
representative,
medical
to ensure
manner
neutral
obtained, in
had been
additional
influ-
unfairly
opinion is
examiner’s
two Jan
account
a detailed
cluding
neu-
awas
Here,
letter
the DRO’s
enced.
The cover
opinions.
medical
uary 2002
as to
opinions
for medical
request
tral
specifically
SSOC
accompanying
Ac-
with Austin.
compliance
full
nexus
sending
purpose
her that
third
Mrs. Prickett’s
reject
we
cordingly,
her the
give
towas
information
her this
error.
contention,
fair
any
[she]
comment
to make
“opportunity
Due Process
(iv) Constitutional
infor
concerning the
wish[ed]
argument
reject
alsoWe
before
[SSOC]”
the enclosed
mation
violated the
omissions
actions
DRO’s
docket.
records
placing
*12
process
due
clause of the U.S.
obligations
Constitu
38 C.F.R.
tion. As this Court has previously noted,
3.103(c)(2).
§
This Court has held
creating a procedural right in the
of
name
VA hearing officer
has
regulatory obli-
process
fair
principles is primarily based
gation
3.103(c)(2)
§
under
explain
fully
on the underlying concepts of
adju
the VA
the issues and inform a claimant of evi-
dicatory scheme, not the U.S. Constitution.
dence he
“may
or she
have
overlooked
Anderson,
See
12 Vet.App.
497 (noting
which would be of advantage to the claim-
that the holding in Thurber “was based on ant’s position.” Douglas Derwinski,
v.
principles
fair process
of
and basic fair Vet.App. 435,
(1992) (en banc).
441-42
play that the Court
from a
extracted
vari Here, during
5,
2002,
June
Board hear-
sources,
of
ety
including the U.S. Constitu
ing,
the hearing officer informed Mrs.
tion, but Thurber did not rely upon a Prickett that “the
probative
most
informa-
constitutional basis for its holding as to the
tion” with regard to determining her claim
procedural protections owed to VA claim were “statements from
types.”
medical
R.
ants”);
Austin,
see also
velopment and processing of her claim Mrs. Prickett also contends that (e.g., notification, VCAA rating decisions, the Board violated its obligations pursuant SOCs, SSOCs, personal testimony before to 38 §§ C.F.R. 19.36 and 20.1304 Board, and decision), Mrs. Prickett by failing provide her a “90-day” notice- provided notice and a meaningful op of-certification letter. Together, portunity develop her claim and chal regulations require that after an appeal lenge VA’s determination. Therefore, we certified Board, to the written reject notice be Mrs. arguments as to her sent to appellant, any representative, due assertion. informing them of the certification and C. Appellant’s Other Contentions transfer of the appellate record to the (i) VA’s 3.103(c)(2) 38 C.F.R. Board. Such notice also serves to advise (2005) Obligations appellant, representative, Mrs. Prickett contends that appellant days has 90 from the date of Board hearing officer failed to fulfill his that letter in which request a change in Prickett of informing sentence hearing, personal request representation, Here, additional to submit right evidence. additional Thus, already she Id. argument. failed to that VA contends right to submit notified obligations because § 19.36 its fulfill *13 the Board before argument repre- only evidence to was sent “90-day” letter her claim. on decision by the another designated rendered The record sentative. sub- notification, failed to she that letter that copy Despite of reflects parties argument. or any additional representative mit Mrs. Prickett’s sent to was noti- erred in Therefore, assuming wheth- regarding no evidence contains but representative notice. Prickett’s separate only Mrs. fying was sent Mrs. Prickett er ability the has of ac- herself event, Secretary, who claimant the the any and not In evidence, the Court file, concedes that claims additional to the entire to submit cess nonprejudicial. ’90-day’ copy of the error was that a that such finds appears “[i]t representa- [a]ppellant’s to sent was Secretary’s appellant.” to but not tive III. CONCLUSION this (Br.) accepts Court at 26. The Brief the foregoing, of the consideration On erred that VA an admission as statement AF- decision is Board November § 19.36. comply by failing FIRMED. Court, error, the finding Upon dissenting 7261(b)(2), HAGEL, filed take due Judge, § must 38 U.S.C. error. prejudicial opinion. rule of the of
account ap- with, Mrs. Prickett’s because begin To concurring part in HAGEL, Judge, from on remand the Board was before peal dissenting part: in RO, from the appeal not on Court the Court of the I concur 19.36 and §§ whether questionable is it Mrs. A, addresses which except as to Part event, In in case. apply 20.1304 regarding arguments error re- argues VA’s Secretary’s duty discussion of the vacatur § 19.36 warrants garding 5103(a), to 38 U.S.C. notify pursuant her claim remand of decision Board Assis- Claims by the Veterans as amended “failed to consider the Board only because below, explain I will As Act of 2000. tance evidence or to submit failure [her] whether U.S. Court of the decision the recent to receive her failure tied to argument was (Federal Circuit Federal for Appeals Br. at Appellant’s notice.” required Nicholson, F.3d Circuit) Mayfield in agree.5 We do 23. vacatur (Fed.Cir.2006), compels asserts, Secretary case, as In this ap- on decision Board the November by the remanded claim was when matter. of this remand peal and Prickett, who January Court held Circuit the Federal Mayfield, In directly unrepresented, not satisfied notify “is duty to that VA’s addition- could submit she on remand communications post-decisional various R. at 1055. argument. See al evidence might have a claimant remand, from for fact, his motion found the VA what evidence infer able to directly after § 20.1304 Secretary cited ability to on error notice effect of the contends Although Mrs. Prickett a Board representation change in request a failed she whether not consider did 23; also at see Br. Appellant’s hearing. See the no- evidence because 20.1304(a). §.R. regarding 38 C.F error, argument no she raises tice lacking in presentation.” the claimant’s letter, June 2003 August 2001 State- Mayfield, F.3d 1333. In support Case, ment and the February 2002 holding, the Federal Circuit Supplemental reasoned Statement Case, be- that notice under the Veterans Claims fore concluding As- on “[biased the fore- sistance Act going, the Board finds that the VA has fully duty satisfied the to inform required appel- have different contents Hence, lant.” R. at 5. the Board post-decisional made it notices, and it is abundantly clear that it
designed was relying different purposes en-—to just than more the May sure that 2001 letter to find present- claimant’s case is Secretary properly ed the initial dis- decisionmaker with charged duty his *14 to notify. whatever support is available and to en- sure that the claimant understands what In concluding to contrary, the ma- the evidence will be by obtained the VA and jority determines that the Board’s state- what evidence must provided be by the ment that it relying was on a combination claimant. pre- and postdecisional to documents Id. find compliance with duty the notify to “was not intended as a finding that Here, in determining that the notice through pre- various postdecisional provided to Mrs. Prickett was adequate, 5103(a) documents section notification had the Board relied impermissibly, at least been met.” Ante at Instead, the part, on documents that were neither is- majority finds the Board’s statement prior sued to the initial adjudication of her generally conclude that “through pre- and by claim agency the of original jurisdiction postdecisional documents, all VA’s notifica- nor for the purpose compliance with the requirements, tion just 5103(a) not section Veterans Claims Indeed, Assistance Act. notice, had been satisfied.” Id. major- The the Board much, conceded as concluding ity goes on to declare that the “Board here that “discussions in rating decision, the the rendered a factual determination that the [Statement ..., of the [C]ase [Sup- the May 2001 notification letter alone satisfied plemental [Cjase [Statement of ..., 5103(a) VA’s section duty-to-notify require- and letters to appellant ments.” Id. of the information and evidence needed to substantiate complied with I and, do not agree I above, as noted the VA’s requirements.” R. at believe that the language referred in the 4. The next decision, sentence of its in Board that, decision reflects in finding that which the began explaining its con- the Secretary had properly discharged his clusion that the Secretary had complied duty to notify, the Board relied post- on with duty notify, begins as follows: decisional documents designed not to have communications, “The such as a letter complied 5103(a). with section See R. at [regional office] dated in May By 4-5. concluding otherwise, majori- 2001, provided the appellant with a specific ty is rewriting the Board decision in order explanation of type of evidence neces- to eliminate the Mayfield error. sary to claim, substantiate her as said, well as I That would not necessarily view the an explanation what evidence was to be Board’s mere reference to noncomplying provided by her and what evidence the VA documents as fatal in every Indeed, case. attempt would to obtain on h[er] behalf.” had the Board clearly articulated it R. added). at 4-5 (emphasis The Board relying solely on May 2001 letter went on to discuss the May letter, to find compliance with the section proper Mayfield, counseled Circuit with agree I would requirements, notice decision the Board to vacate is recourse as decision the Board’s majority readjudication matter and remand clearly erroneous. notice issue.6 duty-to-notify on the Prickett’s, as Mrs. sum, such in eases docu- multiple Board relies where postdecisional are of which
ments —some the statuto- provide designed are not compliance find notice —to
rily required as the Federal notify, duty to ade- has received claimant that whether is, us assuming the notice error 6. That ad- be should “is an issue that quate case is in this notice I it believe prejudicial, instance, first agency in the My stems from belief most others. dressed spec- position Mayfield, legal not in premise proper that we are standard." under the on remand the Board regarding what be ulate therefore It would at 1335. 444 F.3d adequacy of concerning the would conclude first consider Court to improper for the documents documents, in the absence the notice remaining whether instance 7261(b)(2); U.S.C. Mayfield. See 38 violate alone, satisfy VA’s *15 standing are sufficient Brown, (1996). Vet.App. Daniels duty. Moreover, Circuit has informed the Federal