Woodrow F. Sanders appeals an August 25, 2005, decision by the United States Court of Appeals for Veterans Claims (“Veterans Court”) that affirmed a decision by the Board of Veterans’ Appeals (“Board”) denying Mr. Sanders’s claim for service connection for choroidoretinitis of his right eye.
Sanders v.
Nicholson,
I. BACKGROUND
Mr. Sanders served in the United States Army from May 1942 to September 1945. Although his service medical records do not indicate that he suffered an eye trauma or abnormality and no eye abnormali *883 ties were recorded in his separation medical examination, Mr. Sanders asserts that on September 12, 1944, while serving in France, a bazooka exploded near him, burning the right side of his face. In December 1948, Mr. Sanders was diagnosed with chronic, right-eye choroidore-tinitis, an inflammation of the choroids and retina. Believing his choroidoretinitis was caused by his injury in 1944, Mr. Sanders submitted a claim for service connection for a right-eye disability to the VA. The VA regional office (“VARO”) denied his claim in February 1949.
Approximately forty years later, Mr. Sanders filed a statement attempting to reopen his claim for service connection for his choroidoretinitis. In support of his claim, Mr. Sanders submitted a statement from a VA ophthalmologist, dated December 1992, and a statement from a private ophthalmologist, dated September 1993. The VA ophthalmologist reported that Mr. Sanders stated that he was injured in a bridge explosion, rather than a bazooka explosion, and that he had experienced vision loss in his right eye ever since. The VA ophthalmologist went on to diagnose right and left macular chorioretinal scars and stated that “[i]t is not inconceivable that these macular and retinal lesions in each [eye] and particularly the right could have occurred secondary to trauma.”
Mr. Sanders’s private ophthalmologist also reported that Mr. Sanders indicated that his injury occurred during a bridge explosion and that he had experienced vision loss in his right eye since then. The ophthalmologist diagnosed large choriore-tinal scars in both eyes and opined that “[t]his type of macular injury in his right eye can certainly be concussive in character and his history supports the visual acuity loss from his injury in World War II.”
Mr. Sanders later stated that both the VA ophthalmologist and his private ophthalmologist were incorrect in reporting that his eye injury occurred during a bridge explosion. Instead, Mr. Sanders reiterated that his injury occurred when the right side of his face was burned by a bazooka explosion. According to Mr. Sanders, this injury went unreported because there were no medics to whom he could report his injury and because most of his fellow soldiers were wounded or killed. Nonetheless, in July 1994 the VARO found Mr. Sanders had failed to present new and material evidence to reopen his claim. Mr. Sanders appealed to the Board, but the Board denied his claim for service connection in a decision dated November 27, 1998. In January 1999, however, the Veterans Court remanded Mr. Sanders’s case for further development and adjudication.
In June 2000, the Board found that new and material evidence had been presented to reopen Mr. Sanders’s claim for service connection and remanded Mr. Sanders’s claim for a VA ophthalmologic examination to determine the etiology of his right-eye condition.
In December 2000, Mr. Sanders had a comprehensive eye examination by a VA optometrist. The optometrist diagnosed decreased vision in the right eye due to a macular scar and a small chorioretinal scar in the left eye, but stated that, based on the fact that Mr. Sanders’s visual acuity in the right eye was 20/20 on May 15, 1942, and 20/25 on September 25, 1945, when he was discharged from the Army, it is unlikely that the decrease in vision was related to Mr. Sanders’s September 1944 trauma. The optometrist also noted that there was no documented evidence of reduced vision until 1948. According to the optometrist, “[i]t is certainly possible for there to have been damage to the retina in 1944 *884 that then hemorrhaged in 1948, ... but there are no other signs of ocular trauma.” The optometrist concluded that “[t]he cho-rioretinitis is most likely infectious in nature, although the etiology at this point is impossible to determine.” Although he noted it was possible Mr. Sanders contracted some infection during his military service, the optometrist stated that “there is no way to prove this either.”
In August 2001, Mr. Sanders was also examined by another VA ophthalmologist, who diagnosed dense macular scarring of the right eye and early macular degeneration of the left eye. The ophthalmologist stated that Mr. Sanders’s decreased vision was consistent with these clinical findings, but that the etiology of Mr. Sanders’s ma-cular scar “is more difficult to ascertain.” According to the ophthalmologist, “[i]f [Mr. Sanders’s] vision had been normal in the right eye prior to the reported injury, then it is possible that the macular scar could be related to the injury.” The ophthalmologist further stated that “[d]ue to the fact that [Mr. Sanders] does have the additional punched out chorioretinal sears in both eyes, the possibility of [an infection] as the etiology of the macular scar could also be entertained.”
The VARO issued Supplemental Statements of the Case in 2001 and 2002 discussing this additional medical evidence. The VARO also sent Mr. Sanders a letter stating that it had all the information it needed to decide his claim, but that he could submit any additional evidence he wanted considered.
In October 2003, the Board denied Mr. Sanders’s claim for service connection for his right-eye choroidoretinitis. The Board found that the opinion of the VA optometrist was more probative on the issue of whether Mr. Sanders’s choroidoretinitis was service-related and concluded that the preponderance of the evidence weighed against the claim. Mr. Sanders appealed to the Veterans Court.
On appeal to the Veterans Court, Mr. Sanders argued that the VA failed to provide notice as to who was responsible for obtaining the evidence necessary to substantiate his claim, as required by the notice provision of the Veterans Claims Assistance Act of 2000 (“VCAA”), 38 U.S.C. § 5103(a), and failed to provide this notice prior to the initial denial of his claim.
In a decision dated August 25, 2005, the Veterans Court found that there was a plausible basis in the record for the Board’s decision denying service connection. The Veterans Court also found that Mr. Sanders did not allege any specific prejudice resulting from the VA’s alleged failure to notify him about who would ultimately be responsible for obtaining the evidence necessary to substantiate his claim, and to provide notice before the initial unfavorable decision by the VARO. Because Mr. Sanders did not meet the burden of showing how such errors affected the fairness of the adjudication, the Veterans Court stated that it need not consider whether any error occurred. Mr. Sanders appeals to this court. We have jurisdiction over appeals from the Veterans Court pursuant to 38 U.S.C. § 7292.
II. DISCUSSION
A. Standard of Review
In reviewing a Veterans Court decision, this court must decide “all relevant questions of law, including interpreting constitutional and statutory provisions.” 38 U.S.C. § 7292(d)(1). We must set aside any regulation or interpretation thereof, “other than a determination as to a factual matter,” relied upon by the Veterans Court that is “(A) arbitrary, capricious, an abuse of discretion, or otherwise not
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in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or in violation of a statutory right; or (D) without observance of procedure required by law.”
Id.
We review questions of statutory interpretation de novo.
Summers v. Gober,
B. History of the VCAA
At the center of Mr. Sanders’s appeal are the notice requirements of the VCAA. The VCAA was enacted in November 2000 to ensure that the VA assisted veterans claiming VA benefits. The legislation was passed in response to concerns expressed by veterans, veterans service organizations, and Congress over a July 1999 decision of the Veterans Court,
Morton v. West,
Under the legal framework of the VCAA, there is generally no prerequisite to receiving VA assistance; the VA is simply required to assist a claimant at the time that claimant files a claim for benefits. See 38 U.S.C. § 5103A(a); 38 C.F.R. § 3.159(c) (2003). As part of this assistance, the VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C. § 5103(a). If the VA denies a claim, it must provide the claimant with a statement of the reasons for the decision and a summary of the evidence considered. 38 U.S.C. § 5104(b). If a claimant files a notice of disagreement, the VA must issue a statement of the case summarizing the reasons for the VA’s decision on each issue, the evidence considered, and the relevant statutes and regulations. 38 U.S.C. § 7105(d)(1). All claimants are entitled to appear at their hearings for the purpose of presenting evidence, and VA personnel conducting hearings are instructed to “suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position.” 38 C.F.R. § 3.103(c)(2).
As mentioned above, Mr. Sanders’s appeal focuses on the notice requirements of the VCAA. These notice requirements are contained within 38 U.S.C. § 5103(a), which states:
Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant’s representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any *886 other applicable provisions of law, will attempt to obtain on behalf of the claimant.
38 U.S.C. § 5108(a).
The purpose of § 5103(a) notification “is to ensure that the claimant’s case is presented to the initial decision-maker with whatever support is available, and to ensure that the claimant understands what evidence will be obtained by the VA and what evidence must be provided by the claimant” prior to the initial adjudication of his claim.
Mayfield v. Nicholson,
The statutory notice requirement of § 5103(a) is implemented in 38 C.F.R. § 3.159(b)(1), which provides, in pertinent part:
When VA receives a complete or substantially complete application for benefits, it will notify the claimant of any information and medical or lay evidence that is necessary to substantiate the claim. VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. VA will also request that the claimant provide any evidence in the claimant’s possession that pertains to the claim.
Accordingly, the notice required by the VCAA can be divided into four separate elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence he or she has in his or her possession that may be relevant to the claim. Errors with regard to these elements are referred to as first-element, second-element, third-element, and fourth-element notice errors, respectively.
This court has previously held that such VCAA notice errors are reviewed under a prejudicial error rule.
Conway v. Principi,
Lacking specific guidance from this court, the Veterans Court took it upon itself to address how to apply the rule of prejudicial error in
Mayfield v. Nicholson,
*887
Next, the court addressed what was meant by prejudicial error.
Id.
at 112-16. After analyzing Supreme Court and Federal Circuit precedent, as well as interpretations of the prejudicial error rule under the Administrative Procedure Act (“APA”),
1
the court concluded that “an error is prejudicial if it affects the ‘substantial rights’ of the parties in terms of ‘the essential fairness of the [adjudication].’”
Id.
at 115 (quoting
McDonough Power Equip., Inc. v. Greenwood,
According to Mayfield I, Congress, in § 7261(b)(2), provided the Veterans Court “with considerable discretion in determining what burdens should be carried by the parties regarding [its] taking due account of the prejudicial-error rule.” Id. at 117. After analyzing Supreme Court precedent in other contexts, see id. at 117-20, the court concluded that
in the section 5103(a) notice context an appellant generally must identify, with considerable specificity, how the notice was defective and what evidence the appellant would have provided or requested the Secretary to obtain (e.g., a nexus medical opinion) had the Secretary fulfilled his notice obligations; further, an appellant must also assert, again with considerable specificity, how the lack of that notice and evidence affected the essential fairness of the adjudication.
Id. at 121. However, if the asserted error is found to exist and to be of the type that has the “natural effect” of producing prejudice, an appellant need not have pled prejudice. Id. Instead, “it is the Secretary’s burden to demonstrate lack of prejudice in terms of the fairness of the adjudication.” Id. To do this, the Secretary is required to persuade the court that the purpose of the notice was not frustrated— e.g., by demonstrating: (1) that any defect in notice was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice provided what was needed, or (3) that a benefit could not possibly have been awarded as a matter of law. Id. With this in mind, the Veterans Court defined the roles of the claimant and the Secretary in connection with the court’s taking due care of the prejudicial error rule in the context of the various types of notice element and timing errors.
With respect to the first notice element, i.e., notice regarding the information and evidence necessary to substantiate the claim, the court held that the natural effect of such an error would “constitute a failure to provide a key element of what it takes to substantiate [the] claim, thereby precluding [the appellant] from participating effectively in the processing of her claim,” defeating the very purpose of § 5103(a) notice. Id. at 122. Accordingly, the court held that such a first-element error was presumed prejudicial, and that the VA had the burden of demonstrating that the ap *888 pellant was not prejudiced by the notice error. Id.
With respect to the second and third notice elements, i.e., notice regarding which portion of the information and evidence necessary to substantiate the claim, if any, is to be provided by the claimant and which portion, if any, the Secretary will attempt to obtain on behalf of the claimant, the court noted that “the assertion of [such an] error, by itself, does not have the natural effect of producing prejudice because this asserted error did not preclude the appellant from effectively participating in the processing of [the] claim.” Id. Instead, “prejudice can arise from such an asserted error only if [the appellant] failed to submit evidence because [he or] she was not advised to do so, or if the Secretary failed to seek to obtain evidence that he should have obtained.” Id. Accordingly, with respect to second and third notice elements, the Veterans Court placed the burden of establishing prejudice on the claimant, requiring the claimant to identify: (1) how the notice was defective; (2) what evidence the appellant would have provided or requested the Secretary to obtain had the Secretary fulfilled his notice obligations; and (3) how the lack of that evidence affected the essential fairness of the adjudication. Id. at 121.
With respect to the fourth notice element, i.e., that the notice “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), the court also placed the burden of showing prejudice on the claimant. Id. at 122-23. According to the court, “[prejudice would exist only if the claimant had evidence in [his or] her possession, not previously submitted, that is, of the type that should be considered by the Secretary in assessing her claim.” Id. at 122. Moreover, whether or not claimant had such evidence “is a matter within [his or] her knowledge and certainly outside the Secretary’s.” Id. at 123. Accordingly, the court thought the burden to prove prejudice was properly placed on the claimant, rather than on the Secretary. This required the claimant to identify: (1) how the notice was defective, (2) what evidence the appellant would have provided had the Secretary fulfilled his notice obligations, and (3) how the lack of that evidence affected the essential fairness of the adjudication. Id. at 121.
Finally, with regard to timing errors, the court noted that such errors “do[ ] not have the natural effect of producing prejudice and that, therefore, prejudice must be pled as to it.” Id. at 123.
C. Prejudicial Error Rule in the VCAA Context
On appeal, Mr. Sanders contends that the Veterans Court’s opinion in May-field I, requiring a claimant to show prejudice as the result of an untimely or inadequate VCAA notice with respect to second-, third-, and fourth-element notice errors, misinterprets 38 U.S.C. § 5103(a) and 38 U.S.C. § 7261(b)(2). Instead, Mr. Sanders argues that all VCAA notice violations should be presumed prejudicial, as is the case with first-element notice errors under Mayfield I. 2 We agree.
*889 The requirement that a claimant demonstrate prejudice as a result of a VCAA. notice error is at odds with the very purpose behind the passage of the VCAA. Instead, we hold that the VCAA notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. To do this, the VA must persuade the reviewing court that the purpose of .the notice was not frustrated, e.g., by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. In other words, we conclude that the rule the Veterans Court applied to first-element notice errors should also apply to second-, third- and forth-element notice errors.
Although the Supreme Court in
Palmer v. Hoffman,
In
Mayfield I,
the Veterans Court acknowledged that “[s]ection 5103(a) assumes a fundamental role in furthering an interest that goes to the very essence of the nonadversarial, pro-claimant nature of the VA adjudication system ... by affording a claimant a meaningful opportunity to participate effectively in the processing of his or her claim.”
Moreover, despite its proffered justifications, the Veterans Court erred by parsing the various elements of the notice required by § 5103(a) and finding certain elements of the required notice more substantial than others. As stated by the Supreme Court, “there is no canon against using common sense in construing laws as saying what they obviously mean.”
Roschen v. Ward,
Additionally, the Veterans Court compounded this error by discounting the importance of several of the various notice elements when considering whether the various VCAA notice errors had the natural effect of prejudicing the appellant. With respect to first-element notice errors, we agree with the Veterans Court that the natural effect of such an error would “constitute a failure to provide a key element of what it takes to substantiate [the] claim, thereby precluding [the appellant] from participating effectively in the processing of her claim,” defeating the very purpose of § 5103(a) notice.
Mayfield I,
With respect to second- and third-element notice errors, the Veterans Court incorrectly concluded that such an error “did not preclude the appellant from effectively participating in the processing of [the] claim.” Id. Instead, the Veterans Court stated that “prejudice can arise ... only if [the appellant] failed to submit evidence because [he or] she was not advised to do so, or if the Secretary failed to seek to obtain evidence that he should have obtained.” Id. This fact, however, does not dictate placing the burden of establishing prejudice on the claimant. In passing the VCAA, Congress clearly viewed the claimant’s participation as essential to processing his or her claim for VA benefits, and believed that the claimant should be notified which evidence he or she was responsible for providing and which evidence the government was responsible for providing. If Congress felt that such notice elements were not necessary to allow the claimant to effectively participate in the processing of his or her claim, then why would it have required them as part of the notice pursuant to § 5103(a)? By presuming these notice errors were not prejudicial, the Veterans Court essentially excused the VA’s failure to satisfy its statutory obligations — ones which Congress explicitly required in order to allow the claimant to effectively participate in the processing of his or her claim — without a showing that the defect had not frustrated the very purpose of the notice. This was error.
The Veterans Court also incorrectly placed the burden of establishing prejudice on the appellant with respect to fourth-element notice errors. Although the Veterans Court correctly stated that “[prejudice would exist only if the claimant had evidence in [his or] her possession, not previously submitted, that is, of the type that should be considered by the Secretary in assessing her claim,” id., this fact does not dictate placing the burden of establishing prejudice on the appellant. And although the Veterans Court did not base its allocation of the burden on that fact that whether or not the claimant had such evidence “is a matter within [his or] her knowledge and certainly outside the Secretary’s,” id. at 123, this fact only highlights the importance of providing proper notice to the claimant.
Finally, with regard to timing errors, the Veterans Court also incorrectly placed the burden of establishing prejudice on the
*891
appellant. As this court pointed out, the purpose of § 5103(a) notification is to ensure that the claimant’s case is presented with all available support prior to the initial adjudication of his claim.
Mayfield II,
In light of the above discussion, we hold that any error in a VCAA notice should be presumed prejudicial. The VA has the burden of rebutting this presumption. That said, this opinion does not displace the rule that the claimant bears the burden of demonstrating error in the VCAA notice, see U.S. Vet.App. R. 28(a), nor does it change the rule that reversal requires the essential fairness of the adjudication to have been affected. This opinion merely clarifies that all VCAA notice errors are presumed prejudicial and that the VA has the burden of rebutting this presumption.
In announcing this rule, we are mindful of the Supreme Court’s admonition that only certain “structural errors undermining the fairness of a criminal proceeding as a whole” warrant reversal without regard to the mistake’s effect upon the proceeding,
United States v. Benitez,
Moreover, the presumption of prejudice does not defeat the purpose of the rule of prejudicial error, i.e., “to avoid wasteful proceedings on remand where there is no reason to believe a different result would have been obtained had the error not occurred.”
In re Watts,
We are also mindful that when § 7261(b)(2) was originally enacted — as 38 U.S.C. § 4061(b) — the Senate Committee on Veterans Affairs issued a report that stated its scope-of-review provisions “would incorporate a reference to the ‘rule of prejudicial error’ as included in the [APA],” and that this would require a court to “pass over errors in the record of the administrative proceedings that the court finds not to be significant to the outcome of the matter.” S.Rep. No. 100-481, at 62 (1988). However, the treatment of prejudicial error under the APA is not dispositive, as even the Veterans Court recognized. In
Mayfield I,
after considering the APA, the Veterans Court still noted that § 7261(b)(2) left it with “considerable latitude as to how to ‘take due account’ ” of the rule of prejudicial error.
III. CONCLUSION
Because the Veterans Court incorrectly required Mr. Sanders to demonstrate prejudice in the VCAA notice error context, we reverse and remand for proceedings consistent with this opinion.
COSTS
No costs.
REVERSED AND REMANDED
Notes
. Similar to the VCAA, the APA requires federal courts to take "due account ... of the rule of prejudicial error” when reviewing agency administrative action. 5 U.S.C. § 706.
. Although Mr. Sanders’s brief argues that VCAA notice errors should be deemed per se prejudicial, the brief also acknowledges an exception to this rule “when, under any conceivable factual scenario, further development of the record would not support an award of benefits.” (Appellant’s Br. 18 n. 9.) As such, Mr. Sanders does not advocate a true "per se prejudicial” rule. Instead, at oral argument counsel for Mr. Sanders clarified his position as advocating a presumption of prejudice for all VCAA notice errors, similar to the presumption applied to first-element notice errors under Mayfield I.