4th Veteran tests positive for HIV after exposed to contaminated colonoscopy equipment tests positive

Another veteran has tested positive for HIV, that brings the total to date to 4.

As troubling as that is, the VA still refuses to say how widespread the problem is, were all VA medical facilities affected or just the three that they have identified so far? They won't say.

So, again we are urging all everyone that had any type of "scope" procedure at any VA medical facility to get tested and to get a copy of your medical records today, don't wait.


VA reports 4th positive HIV test after unsterile hospital equipment used, vets grow frustrated

BILL POOVEY, Associated Press Writer
4:52 PM PDT, April 24, 2009
CHATTANOOGA, Tenn. (AP) — Thousands of veterans were at first shocked to learn they should get blood tests for HIV and hepatitis because three hospitals might have treated them with unsterile equipment. Now, just a couple of months after the Department of Veterans Affairs issued the dire warnings, veterans are growing frustrated by the lack of information from the tightlipped federal agency.

Nearly 11,000 former sailors, soldiers, airmen and Marines could have been exposed to infectious diseases because three VA hospitals in the Southeast did not properly clean endoscopic equipment between patients. On Friday, the VA revealed that another patient had tested positive for HIV, bringing the total to four such cases among patients who got endoscope procedures at hospitals in Miami, Murfreesboro, Tenn., and Augusta, Ga.

The agency also said a new hepatitis case had been discovered, increasing the number of positive tests to 26. More than 4,270 veterans still have yet to get test results.

Full article at LA Times
http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-veterans-colonoscopies,1,712144.story

Supremes reverse FedCir in Sanders

This decision is just in, Breyer wrote:

In our view, the Federal Circuit’s "harmless-error" framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA, and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law.

Souter, Ginsburg and Justice John Paul Stevens joined in dissent.


1
(Slip Opinion) OCTOBER TERM, 2008
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as isbeing done in connection with this case, at the time the opinion is issued.The syllabus constitutes no part of the opinion of the Court but has beenprepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v.
SANDERS
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
As part of the Department of Veterans Affairs’ (VA) statutory duty to help a veteran develop a benefits claim, the Secretary of Veterans Affairs (Secretary) must notify an applicant of any information or evidence that is necessary to substantiate the claim. 38 U. S. C. §5103(a). VA regulations require the notice to specify (1) what further information is necessary, (2) what portions of that informationthe VA will obtain, and (3) what portions the claimant must obtain.These requirements are referred to as Type One, Type Two, and Type Three, respectively.The Court of Appeals for Veterans Claims (Veterans Court), which hears initial appeals from VA claims decisions, has a statutory dutyto “take due account of the rule of prejudicial error.” §7261(b)(2). It has developed a system for dealing with notice errors, whereby a claimant arguing that the VA failed to give proper notice must explain precisely how the notice was defective. The reviewing judgewill then decide what “type” of notice error the VA committed. Under the Veterans Court’s approach, a Type One error has the “natural effect” of harming the claimant, but Types Two and Three errors do not. In the latter instances, the claimant must show harm, e.g., bydescribing what evidence he would have provided (or asked the Secretary to provide) had the notice not been defective, and explainingjust how the lack of that notice and evidence affected the adjudication’s essential fairness.
The Federal Circuit, which reviews Veterans Court decisions, re—————— *Together with Shinseki, Secretary of Veterans Affairs v. Simmons, also on certiorari to the same court (see this Court’s Rule 12.4).
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jected the Veterans Court’s approach and set forth its own framework for determining whether a notice error is harmless. When the VA provides a claimant with a notice that is deficient in any respect, the framework requires the Veterans Court to presume that the error is prejudicial and requires reversal unless the VA can demonstrate (1) that the defect was cured by the claimant’s actual knowledge or (2) that benefits could not have been awarded as a matter of law. The Federal Circuit applied its framework in both of the present cases.
In respondent Sanders’ case, the VA denied disability benefits onthe ground that Sanders’ disability, blindness in his right eye, wasnot related to his military service. Sanders argued to the VeteransCourt that the VA had made notice errors Type Two and Type Three when it informed him what further information was necessary, but failed to tell him which portions of that information the Secretary would provide and which portions he would have to provide. The Veterans Court held these notice errors harmless, but the Federal Circuit reversed, ruling that the VA had not made the necessary claimant-knowledge or benefits-ineligibilty showing required by the Federal Circuit’s framework.
The VA also denied benefits in respondent Simmons’ case after finding that her left-ear hearing loss, while service connected, wasnot severe enough to warrant compensation. Simmons argued to the Veterans Court, inter alia, that the VA had made a Type One noticeerror by failing to notify her of the information necessary to show worsening of her hearing. The court agreed, finding the error prejudicial. Noting that a Type One notice error has the “natural effect” of producing prejudice, the Veterans Court added that its review of the record convinced it that Simmons did not have actual knowledge ofwhat evidence was necessary to substantiate her claim and, had theVA told her more specifically what additional information was needed, she might have obtained that evidence. The Federal Circuit affirmed.
Held:
1. The Federal Circuit’s harmless-error framework conflicts with §7261(b)(2)’s requirement that the Veterans Court take “due account of the rule of prejudicial error.” Pp. 8–15.
(a)
That §7261(b)(2) requires the same sort of “harmless-error”rule as is ordinarily applied in civil cases is shown by the statutorywords “take due account” and “prejudicial error.” Congress used the same words in the Administrative Procedure Act (APA), 5 U. S. C. §706, which is an “ ‘administrative law . . . harmless error rule,’ ” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___. Legislative history confirms that Congress intended §7261(b)(2)to incorporate the APA’s approach. Pp. 8–9.
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(b)
Three related features, taken together, demonstrate that the Federal Circuit’s framework mandates an approach to harmless error that differs significantly from the one normally taken in civil cases.First, the framework is too complex and rigid: In every case involving any type of notice error, the Veterans Court must find the error harmful unless the VA demonstrates the claimant’s actual knowledge curing the defect or his ineligibility for benefits as a matter of law.An error’s harmlessness should not be determined through the use of mandatory presumptions and rigid rules, but through the casespecific application of judgment, based upon examination of the record. See Kotteakos v. United States, 328 U. S. 750, 760. Second, the framework imposes an unreasonable evidentiary burden on the VA,requiring the Secretary to demonstrate, e.g., a claimant’s state of mind about what he knew or the nonexistence of evidence that might significantly help the claimant. Third, the framework requires theVA, not the claimant, to explain why the error is harmless. The burden of showing harmfulness is normally on the party attacking anagency’s determination. See, e.g., Palmer v. Hoffman, 318 U. S. 109,
116. This Court has placed the burden on the Government only whenthe underlying matter was criminal. See, e.g., Kotteakos, supra, at
760. The good reasons for this rule do not apply in the ordinary civil case. Pp. 9–13.
(c) The foregoing analysis is subject to two important qualifications. First, the Court need not, and does not, decide the lawfulness of the Veterans Court’s reliance on the “natural effects” of certain kinds of notice errors. Second, although Congress’ special solicitude for veterans might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other cases,that is not at issue, and need not be decided here. Pp. 13–15.
2. In Sanders’ case, a review of the record demonstrates that the Veterans Court lawfully found the notice errors harmless. The VA’s Types Two and Three notice errors did not matter, given that Sanders has pursued his claim for many years and should be aware of whyhe has been unable to show that his disability is service connected. Sanders has not told the reviewing courts what additional evidenceproper notice would have led him to obtain or seek and has not explained how the notice errors could have made any difference.
In Simmons’ case, some features of the record suggest that the VA’sType One error was harmless, e.g., that she has long sought benefits and has a long history of medical examinations. But other features, e.g., that her left-ear hearing loss was concededly service connectedand has continuously deteriorated over time, suggest the opposite.Given the uncertainties, the Veterans Court should decide whether reconsideration is necessary. Pp. 15–17.
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487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and remanded.
BREYER, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which STEVENS and GINSBURG, JJ., joined.
_________________
_________________
Cite as: 556 U. S. ____ (2009) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 07–1209
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. WOODROW F. SANDERS
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 21, 2009]
JUSTICE BREYER delivered the opinion of the Court.
In these two civil cases, the Department of VeteransAffairs (VA) denied veterans’ claims for disability benefits. In both cases the VA erroneously failed to provide the veteran with a certain kind of statutorily required notice.See 38 U. S. C. §5103(a). In both cases the VA argued that the error was harmless. And in both cases the Court of Appeals for the Federal Circuit, after setting forth a framework for determining whether a notice error is harmless, rejected the VA’s argument.
In our view, the Federal Circuit’s “harmless-error” framework is too complex and rigid, its presumptions impose unreasonable evidentiary burdens upon the VA,and it is too likely too often to require the Court of Appeals for Veterans Claims (Veterans Court) to treat as harmful errors that in fact are harmless. We conclude that the framework conflicts with established law. See §7261(b)(2) (Veterans Court must “take due account of the rule of prejudicial error”).
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I
A
The law entitles veterans who have served on active duty in the United States military to receive benefits for disabilities caused or aggravated by their military service. The Veterans Claims Assistance Act of 2000 requires the VA to help a veteran develop his or her benefits claim. §5103A. In doing so, the Secretary of Veterans Affairs (Secretary), upon “receipt of” an “application” for benefits, must “notify the claimant . . . 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” the required “notice,” the Secretary must also “indicate which portion of” the required “information and evidence . . . is to be provided by the claimant and which portion . . . the Secretary . . . will attempt to obtain.” §5103(a).
Repeating these statutory requirements in its regulations, the VA has said it will provide a claimant with a letter that tells the claimant (1) what further information is necessary to substantiate his or her claim; (2) what portions of that information the VA will obtain for the claimant; and (3) what portions the claimant must obtain. 38 CFR §3.159(b) (2008). At the time of the decisions below, the regulations also required the VA to tell the claimant (4) that he may submit any other relevant information that he has available. §3.159(b)(1). (The VA refers to these notice requirements as Type One, Type Two, Type Three, and Type Four, respectively.)
B The VA’s regional offices decide most claims. A claimant may appeal an adverse regional office decision to the VA’s Board of Veterans’ Appeals, an administrative board with the power to consider certain types of new evidence.
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38 U. S. C. §§7107(b), 7109(a); 38 CFR §20.1304(c). The claimant may seek review of an adverse Board decision inthe Veterans Court, an Article I court. And the claimant (or the Government) may appeal an adverse decision of the Veterans Court to the Court of Appeals for the Federal Circuit—but only in respect to certain legal matters,namely, “the validity . . . of any statute or regulation . . . orany interpretation thereof . . . that was relied on” by theVeterans Court in making its decision. 38 U. S. C. §7292.
A specific statute requires the Veterans Court to “takedue account of the rule of prejudicial error.” §7261(b)(2).In applying this statutory provision, the Veterans Court has developed its own special framework for notice errors. Under this framework, a claimant who argues that the VAfailed to give proper notice must explain precisely how the notice was defective. Then the reviewing judge will decidewhat “type” of notice error the VA committed. The Veterans Court has gone on to say that a Type One error (i.e., a failure to explain what further information is needed) hasthe “natural effect” of harming the claimant; but errors of Types Two, Three, or Four (i.e., a failure to explain justwho, claimant or agency, must provide the needed material or to tell the veteran that he may submit any other evidence available) do not have the “natural effect” ofharming the claimant. In these latter instances, the claimant must show how the error caused harm, for example, by stating in particular just “what evidence” he would have provided (or asked the Secretary to provide)had the notice not been defective, and explaining just “how the lack of that notice and evidence affected the essential fairness of the adjudication.” Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005).
C In the first case, Woodrow Sanders, a veteran of World War II, claimed that a bazooka exploded near his face in
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Opinion of the Court
1944, causing later blindness in his right eye. His wartime medical records, however, did not indicate any eyeproblems. Indeed, his 1945 discharge examination showednear-perfect vision. But a 1948 eye examination revealedan inflammation of the right-eye retina and surrounding tissues—a condition that eventually left him nearly blind in that eye. Soon after the examination Sanders filed a claim for disability benefits. But in 1949 the VA denied benefits on the ground that Sanders had failed to show a connection between his eye condition and his earlier military service.
Forty-two years later, Sanders asked the VA to reopenhis benefits claim. He argued that the 1944 bazookaexplosion had hurt his eye, and added that that he had begun to experience symptoms—blurred vision, swelling, and loss of sight—in 1946. He included a report from aVA doctor, Dr. Joseph Ruda, who said that “[i]t is notinconceivable that” the condition “could have occurred secondary to trauma, as stated by” Sanders. A privateophthalmologist, Dr. Gregory Strainer, confirming thatSanders’ right retina was scarred, added that this “[t]ype of . . . injury . . . can certainly be concussive in character.” App. C to Pet. for Cert. 26a–27a.
In 1992, the VA reopened Sanders’ claim. Id., at 29a. After obtaining Sanders’ military medical records, the VA arranged for a further medical examination, this time byVA eye specialist Dr. Sheila Anderson. After examining Sanders’ medical history (including records of the examinations made at the time of Sanders’ enlistment and discharge), Anderson agreed with the medical diagnosisbut concluded that Sanders’ condition was not service related. Since Sanders’ right-eye “visual acuity” was“20/20” upon enlistment and “20/25” upon discharge, andhe had “reported decreased vision only 6 months prior” to his 1948 doctor’s “visit,” and since “there are no other signs of ocular trauma,” Anderson thought that Sanders’
Cite as: 556 U. S. ____ (2009) 5
Opinion of the Court
condition “is most likely infectious in nature, although the etiology at this point is impossible to determine.” “Based on the documented records,” she concluded, “the patientdid not lose vision while on active duty.” The VA regional office denied Sanders’ claim. Ibid.
Sanders sought Board review, and in the meantime he obtained the opinion of another VA doctor, Dr. Duane Nii, who said that the “etiology of the patient’s” eye condition “is . . . difficult to ascertain.” He thought that “it is possible that” the condition “could be related to” a bazooka explosion, though the “possibility of” an infection “as the etiology . . . could also be entertained.” Id., at 30a. The Board concluded that Sanders had failed to show that the eye injury was service connected. The Board said that it had relied most heavily upon Anderson’s report because, unlike other reports, it took account of Sanders’ military medical records documenting his eyesight at the time of his enlistment and discharge. And the Board consequently affirmed the regional office’s denial of Sanders’ claim.
Sanders then appealed to the Veterans Court. There he argued, among other things, that the VA had made anotice error. Sanders conceded that the VA had sent him a letter telling him (1) what further information wasnecessary to substantiate his claim. But, he said, the VA letter did not tell him (2) which portions of the information the Secretary would provide or (3) which portions he would have to provide. That is to say, he complained about notice errors Type Two and Type Three.
The Veterans Court held that these notice errors were harmless. It said that Sanders had not explained how he would have acted differently, say, by identifying whatdifferent evidence he would have produced or asked theSecretary to obtain for him, had he received proper notice. Finding no other error, the Veterans Court affirmed theBoard’s decision.
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D The Court of Appeals for the Federal Circuit reviewedthe Veterans Court’s decision and held that the Veterans Court was wrong to find the notice error harmless. The Federal Circuit wrote that when the VA provides a claimant with a notice letter that is deficient in any respect (tothe point where a “reasonable person” would not have readit as providing the necessary information), the VeteransCourt “should . . . presum[e]” that the notice error is “prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication.” Sanders v. Nicholson, 487 F. 3d 881, 889 (2007). To make this latter showing, the court added, the VA must “demonstrate” (1) that the “defect was cured byactual knowledge on the” claimant’s “part,” or (2) “that a benefit could not have been awarded as a matter of law.” Ibid. Because the VA had not made such a showing, theFederal Circuit reversed the Veterans Court’s decision.
E In the second case before us, the claimant, Patricia Simmons, served on active military duty from December 1978 to April 1980. While on duty she worked in a noisy environment close to aircraft; after three months she began to lose hearing in her left ear; and by the time she was discharged, her left-ear hearing had become worse.Soon after her discharge, Simmons applied for disability benefits. The VA regional office found her hearing losswas service connected; but it also found the loss insufficiently severe to warrant compensation. In November 1980, it denied her claim. In 1998, Simmons asked the VA to reopen her claim.She provided medical examination records showing further loss of hearing in her left ear along with (what she considered related) loss of hearing in her right ear. The VA arranged for hearing examinations by VA doctors in
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Opinion of the Court
1999, 2001, and 2002. The doctors measured her left-ear hearing loss, ranking it as moderate to severe; they alsomeasured her right-ear hearing loss, ranking it as mild to moderate. After comparing the results of the examinations with a VA hearing-loss compensation schedule, the regional office concluded that Simmons’ left-ear hearing loss, while service connected, was not severe enough towarrant compensation. At the same time, the regional office concluded that her right-ear hearing loss was neither service connected nor sufficiently severe. Simmons appealed the decision to the Board, which affirmed theregional office’s determination.
In 2003, Simmons appealed to the Veterans Court.Among other things, she said that she had not received anotice about (and she consequently failed to attend) afurther right-ear medical examination that the VA latertold her it had arranged. She added that, in respect to herclaim for benefits for loss of hearing in her left ear, the VA had made a Type One notice error (i.e., it had failed to tell her what further information was needed to substantiate her claim). Simmons conceded that she had received aletter from the VA. But the letter told her only what, ingeneral, a person had to do to show that a hearing injury was service connected. It did not tell her anything about her specific problem, namely, what further informationshe must provide to show a worsening of hearing in her left ear, to the point where she could receive benefits.
The Veterans Court agreed with Simmons, and it found both errors prejudicial. In respect to Simmons’ left-earhearing loss (the matter at issue here), it pointed out that it had earlier said (in Mayfield, 19 Vet. App., at 120–124)that a Type One notice error has the “natural effect of producing prejudice.” The court added that its “revie[w] [of] the record in its entirety” convinced it that Simmons did not have “actual knowledge of what evidence wasnecessary to substantiate her claim” and, had the VA told
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Simmons more specifically about what additional medical information it needed, Simmons might have “obtained” afurther “private” medical “examination substantiating her claim.” App. G to Pet. for Cert. 81a. The Veterans Court consequently remanded the case to the Board.
The Government appealed the Veterans Court’s determination to the Court of Appeals for the Federal Circuit. And that court affirmed the Veterans Court’s decision on the basis of its decision in Sanders. Simmons v. Nicholson, 487 F. 3d 892 (2007).
F We granted certiorari in both Sanders’ and Simmons’ cases in order to determine the lawfulness of the Federal Circuit’s “harmless-error” holdings.
II The Federal Circuit’s holdings flow directly from its useof the “harmless-error” framework that we have described. Supra, at 6. Thus we must decide whether that framework is consistent with a particular statutory requirement, namely, the requirement that the Veterans Court“take due account of the rule of prejudicial error,”38 U. S. C. §7261(b)(2). See supra, at 3. We conclude that the framework is not consistent with the statutory demand.
A We believe that the statute, in stating that the VeteransCourt must “take due account of the rule of prejudicial error,” requires the Veterans Court to apply the same kindof “harmless-error” rule that courts ordinarily apply incivil cases. The statutory words “take due account” and“prejudicial error” make clear that is so. Congress usedthe same words in the Administrative Procedure Act (APA). 5 U. S. C. §706 (“[A] court shall review the whole record . . . and due account shall be taken of the rule of
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Opinion of the Court
prejudicial error”). The Attorney General’s Manual on the Administrative Procedure Act explained that the APA’sreference to “prejudicial error” is intended to “su[m] up in succinct fashion the ‘harmless error’ rule applied by the courts in the review of lower court decisions as well as of administrative bodies.” Dept. of Justice, Attorney General’s Manual on the Administrative Procedure Act 110 (1947) (emphasis added). And we have previously described §706 as an “‘administrative law . . . harmless error rule.’” National Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, ___ (2007) (slip op., at 12) (quoting PDK Labs. Inc. v. United States Drug Enforcement Admin., 362 F. 3d 786, 799 (CADC 2004)). Legislativehistory confirms that Congress intended the VeteransCourt “prejudicial error” statute to “incorporate a reference” to the APA’s approach. S. Rep. No. 100–418, p. 61 (1988). We have no indication of any relevant distinction between the manner in which reviewing courts treat civil and administrative cases. Consequently, we assess the lawfulness of the Federal Circuit’s approach in light of our general case law governing application of the harmlesserror standard.
B Three related features of the Federal Circuit’s framework, taken together, convince us that it mandates anapproach to harmless error that differs significantly fromthe approach courts normally take in ordinary civil cases. First, the framework is complex, rigid, and mandatory. In every case involving a notice error (of no matter whichkind) the Veterans Court must find the error harmful unless the VA “demonstrate[s]” (1) that the claimant’s “actual knowledge” cured the defect or (2) that the claimant could not have received a benefit as a matter of law. Suppose the notice error, as in Sanders’ case, consisted ofa failure to describe what additional information, if any,
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Opinion of the Court
the VA would provide. It might be obvious from the record in the particular case that the error made no difference.But under the Federal Circuit’s rule, the Veterans Court would have to remand the case for new proceedingsregardless.
We have previously warned against courts’ determining whether an error is harmless through the use of mandatory presumptions and rigid rules rather than case-specific application of judgment, based upon examination of therecord. See Kotteakos v. United States, 328 U. S. 750, 760 (1946). The federal “harmless-error” statute, now codified at 28 U. S. C. §2111, tells courts to review cases for errors of law “without regard to errors” that do not affect the parties’ “substantial rights.” That language seeks toprevent appellate courts from becoming “‘impregnablecitadels of technicality, ’” Kotteakos, 328 U. S., at 759. And we have read it as expressing a congressional preferencefor determining “harmless error” without the use of presumptions insofar as those presumptions may lead courtsto find an error harmful, when, in fact, in the particularcase before the court, it is not. See id., at 760; O’Neal v. McAninch, 513 U. S. 432, 436–437 (1995); see also R. Traynor, The Riddle of Harmless Error 26 (1970) (hereinafter Traynor) (reviewing court normally should “determine whether the error affected the judgment . . . withoutbenefit of such aids as presumptions . . . that expedite factfinding at trial”).
The Federal Circuit’s presumptions exhibit the verycharacteristics that Congress sought to discourage. In the cases before us, they would prevent the reviewing court from directly asking the harmless-error question. Theywould prevent that court from resting its conclusion on the facts and circumstances of the particular case. And theywould require the reviewing court to find the notice errorprejudicial even if that court, having read the entire record, conscientiously concludes the contrary.
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Second, the Federal Circuit’s framework imposes anunreasonable evidentiary burden upon the VA. How is the Secretary to demonstrate, in Sanders’ case for example,that Sanders knew that he, not the VA, would have to produce more convincing evidence that the bazooka accident caused his eye injury? How could the Secretary demonstrate that there is no evidence anywhere thatwould entitle Sanders to benefits? To show a claimant’s state of mind about such a matter will often prove difficult, perhaps impossible. And even if the VA (as in Sanders’ case) searches the military records and comes up emptyhanded, it may still prove difficult, or impossible, to prove the nonexistence of evidence lying somewhere about that might significantly help the claimant.
We have previously pointed out that setting an evidentiary “barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine,” namely, reversing for error “‘regardless of its effect on the judgment.’” Neder v. United States, 527 U. S. 1, 18 (1999) (quoting Traynor 50). The Federal Circuit’s evidentiary rules increase the likelihood of reversal in cases where, in fact, the error is harmless. And, as we pointed out in Neder, that likelihood encourages abuse of the judicial process and diminishes the public’s confidence in the fair and effective operation of the judicial system. 527 U. S., at 18.
Third, the Federal Circuit’s framework requires the VA,not the claimant, to explain why the error is harmless.This Court has said that the party that “seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted.” Palmer v. Hoffman, 318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553 (1984); Market Street R. Co. v.
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Railroad Comm’n of Cal., 324 U. S. 548, 562 (1945) (finding error harmless “in the absence of any showing of . . . prejudice”).
Lower court cases make clear that courts have correlated review of ordinary administrative proceedings to appellate review of civil cases in this respect. Consequently, the burden of showing that an error is harmful normally falls upon the party attacking the agency’s determination. See, e.g., American Airlines, Inc. v. Department of Transp., 202 F. 3d 788, 797 (CA5 2000) (declining to remand where appellant failed to show that error in administrative proceeding was harmful); Air Canada v. Department of Transp., 148 F. 3d 1142, 1156–1157 (CADC 1998) (same); Nelson v. Apfel, 131 F. 3d 1228, 1236 (CA7 1997) (same); Bar MK Ranches v. Yuetter, 994 F. 2d 735, 740 (CA10 1993) (same); Camden v. Department of Labor, 831 F. 2d 449, 451 (CA3 1987) (same); Panhandle Co-op Assn. v. EPA, 771 F. 2d 1149, 1153 (CA8 1985) (same); Frankfort v. FERC, 678 F. 2d 699, 708 (CA7 1982) (same); NLRB v. Seine & Line Fishermen, 374 F. 2d 974, 981 (CA9 1967) (same).
To say that the claimant has the “burden” of showing that an error was harmful is not to impose a complexsystem of “burden shifting” rules or a particularly onerous requirement. In ordinary civil appeals, for example, the appellant will point to rulings by the trial judge that theappellant claims are erroneous, say, a ruling excluding favorable evidence. Often the circumstances of the case will make clear to the appellate judge that the ruling, if erroneous, was harmful and nothing further need be said. But, if not, then the party seeking reversal normally mustexplain why the erroneous ruling caused harm. If, for example, the party seeking an affirmance makes a strongargument that the evidence on the point was overwhelming regardless, it normally makes sense to ask the partyseeking reversal to provide an explanation, say, by mar
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shaling the facts and evidence showing the contrary. The party seeking to reverse the result of a civil proceedingwill likely be in a position at least as good as, and often better than, the opposing party to explain how he has been hurt by an error. Cf. United States v. Fior D’Italia, Inc., 536 U. S. 238, 256, n. 4 (2002) (SOUTER, J., dissenting).
Respondents urge the creation of a special rule for this context, placing upon the agency the burden of proving that a notice error did not cause harm. But we have placed such a burden on the appellee only when the matter underlying review was criminal. See, e.g., Kotteakos, 328 U. S., at 760. In criminal cases the Government seeks to deprive an individual of his liberty, thereby providing a good reason to require the Government to explain why anerror should not upset the trial court’s determination.And the fact that the Government must prove its case beyond a reasonable doubt justifies a rule that makes itmore difficult for the reviewing court to find that an errordid not affect the outcome of a case. See United States v. Olano, 507 U. S. 725, 741 (1993) (stating that the Government bears the “burden of showing the absence of prejudice”). But in the ordinary civil case that is not so.See Palmer, supra, at 116.
C Our discussion above is subject to two important qualifications. First, we need not, and we do not, decide the lawfulness of the use by the Veterans Court of what it called the “natural effects” of certain kinds of notice errors. We have previously made clear that courts may sometimes make empirically based generalizations aboutwhat kinds of errors are likely, as a factual matter, toprove harmful. See Kotteakos, supra, at 760–761 (reviewing courts may learn over time that the “‘natural effect’” of certain errors is “‘to prejudice a litigant’s substantial rights’” (quoting H. R. Rep. No. 913, 65th Cong., 3d Sess.,
14 SHINSEKI v. SANDERS
Opinion of the Court
p. 1 (1919))). And by drawing upon “experience” thatreveals some such “‘natural effect,’” a court might properly influence, though not control, future determinations.See Kotteakos, supra, at 760–761. We consider here, however, only the Federal Circuit’s harmless-error framework. That framework, as we have said, is mandatory.And its presumptions are not based upon an effort todetermine “natural effects.”
Indeed, the Federal Circuit is the wrong court to makesuch determinations. Statutes limit the Federal Circuit’s review to certain kinds of Veterans Court errors, namely,those that concern “the validity of . . . any statute or regulation . . . or any interpretation thereof.” 38 U. S. C. §7292. But the factors that inform a reviewing court’s“harmless-error” determination are various, potentiallyinvolving, among other case-specific factors, an estimationof the likelihood that the result would have been different, an awareness of what body (jury, lower court, administrative agency) has the authority to reach that result, a consideration of the error’s likely effects on the perceivedfairness, integrity, or public reputation of judicial proceedings, and a hesitancy to generalize too broadly about particular kinds of errors when the specific factual circumstances in which the error arises may well make allthe difference. See Neder, 527 U. S., at 18–19; Kotteakos, supra, at 761–763; Traynor 33–37.
It is the Veterans Court, not the Federal Circuit, that sees sufficient case-specific raw material in veterans’ cases to enable it to make empirically based, nonbinding generalizations about “natural effects.” And the Veterans Court, which has exclusive jurisdiction over these cases, is likely better able than is the Federal Circuit to exercise aninformed judgment as to how often veterans are harmed by which kinds of notice errors. Cf. United States v. Haggar Apparel Co., 526 U. S. 380, 394 (1999) (Article I court’sspecial “expertise . . . guides it in making complex deter
Cite as: 556 U. S. ____ (2009) 15
Opinion of the Court
minations in a specialized area of the law”).
Second, we recognize that Congress has expressed special solicitude for the veterans’ cause. See post, at 2 (SOUTER, J., dissenting). A veteran, after all, has performed an especially important service for the Nation,often at the risk of his or her own life. And Congress hasmade clear that the VA is not an ordinary agency. Rather, the VA has a statutory duty to help the veteran develop his or her benefits claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C. §5103A. Moreover, the adjudicatory process is not truly adversarial, and the veteran is often unrepresented during the claims proceedings. See Walters v. National Assn. of Radiation Survivors, 473
U. S. 305, 311 (1985). These facts might lead a reviewing court to consider harmful in a veteran’s case error that it might consider harmless in other circumstances. But that is not the question before us. And we need not here decide whether, or to what extent, that may be so.
III We have considered the two cases before us in light of the principles discussed. In Sanders’ case, the Veterans Court found the notice error harmless. And after reviewing the record, we conclude that finding is lawful. The VA told Sanders what further evidence would be needed to substantiate his claim. It failed to specify what portion of any additional evidence the Secretary would provide (weimagine none) and what portion Sanders would have toprovide (we imagine all). How could the VA’s failure to specify this (or any other)division of labor have mattered? Sanders has pursued hisclaim for over six decades; he has had numerous medical examinations; and he should be aware of the respect inwhich his benefits claim is deficient (namely, his inability to show that his disability is connected to his World War II service). See supra, at 5. Sanders has not told the Veter
16 SHINSEKI v. SANDERS
Opinion of the Court
ans Court, the Federal Circuit, or this Court, what specificadditional evidence proper notice would have led him to obtain or seek. He has not explained to the VeteransCourt, to the Federal Circuit, or to us, how the notice error to which he points could have made any difference. The Veterans Court did not consider the harmlessness issue a borderline question. Nor do we. We consequently reversethe Federal Circuit’s judgment and remand the case sothat the court can reinstate the judgment of the VeteransCourt.
Simmons’ case is more difficult. The Veterans Court found that the VA had committed a Type One error, i.e., a failure to tell Simmons what information or evidence she must provide to substantiate her claim. The VA sent Simmons a letter that provided her only with general information about how to prove a claim while telling her nothing at all about how to proceed further in her owncase, a case in which the question was whether a concededly service-connected left-ear hearing problem had deteriorated to the point where it was compensable. And the VA did so in the context of having arranged for a further right-ear medical examination, which (because of lack of notice) Simmons failed to attend. The Veterans Court took the “natural effect” of a Type One error into accountwhile also reviewing the record as a whole.
Some features of the record suggest the error was harmless, for example, the fact that Simmons has long soughtbenefits and has a long history of medical examinations.But other features—e.g., the fact that her left-ear hearing loss was concededly service connected and has continuously deteriorated over time, and the fact that the VA hadscheduled a further examination of her right ear that (hadnotice been given) might have revealed further left-ear hearing loss—suggest the opposite. Given the uncertainties, we believe it is appropriate to remand this case so that the Veterans Court can decide whether re
Cite as: 556 U. S. ____ (2009) 17
Opinion of the Court
consideration is necessary.
* * * We conclude that the Federal Circuit’s harmless-error framework is inconsistent with the statutory requirementthat the Veterans Court take “due account of the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). We reverse the Federal Circuit’s judgment in Sanders’ case, and we vacate its judgment in Simmons’ case. We remand both cases for further proceedings consistent with this opinion.
It is so ordered.
_________________
_________________
Cite as: 556 U. S. ____ (2009) 1
SOUTER, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 07–1209
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. WOODROW F. SANDERS
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS, PETITIONER v. PATRICIA D. SIMMONS
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT
[April 21, 2009]
JUSTICE SOUTER, with whom JUSTICE STEVENS and JUSTICE GINSBURG join, dissenting.
Federal law requires the Court of Appeals for VeteransClaims to “take due account of the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). Under this provision,when the Department of Veterans Affairs (VA) fails tonotify a veteran of the information needed to support hisbenefit claim, as required by 38 U. S. C. §5103(a), must the veteran prove the error harmful, or must the VA prove its error harmless? The Federal Circuit held that the VA should bear the burden. Sanders v. Nicholson, 487 F. 3d 881 (2007). The Court reverses because the Federal Circuit’s approach is “complex, rigid, and mandatory,” ante, at 9, “imposes an unreasonable evidentiary burden uponthe VA,” ante, at 10–11, and contradicts the rule in other civil and administrative cases by “requir[ing] the VA, notthe claimant, to explain why the error is harmless,” ante, at 11. I respectfully disagree.
Taking the last point first, the Court assumes that thereis a standard allocation of the burden of proving harmlessness that Congress meant to adopt in directing the Veterans Court to “take due account of the rule of prejudi
2 SHINSEKI v. SANDERS
SOUTER, J., dissenting
cial error.” 38 U. S. C. §7261(b)(2). But as both the majority and the Government concede, “[t]here are no hard-andfast standards governing the allocation of the burden of proof in every situation,” Keyes v. School Dist. No. 1, Denver, 413 U. S. 189, 209 (1973), and courts impose theburden of dealing with harmlessness differently in different circumstances. As the Court says, the burden is on the Government in criminal cases, ante, at 13, and even in civil and administrative appeals courts sometimes require the party getting the benefit of the error to show its harmlessness, depending on the statutory setting or specific sort of mistake made, see, e.g., McLouth Steel Prods. Corp.
v. Thomas, 838 F. 2d 1317, 1324 (CADC 1988) (declaring that imposing the burden of proving harm “on the challenger is normally inappropriate where the agency hascompletely failed to comply with” notice and commentprocedures).
Thus, the question is whether placing the burden of persuasion on the veteran is in order under the statutory scheme governing the VA. I believe it is not. The VA differs from virtually every other agency in being itself obliged to help the claimant develop his claim, see, e.g., 38
U. S. C. §5103A, and a number of other provisions and practices of the VA’s administrative and judicial review process reflect a congressional policy to favor the veteran, see, e.g., §5107(b) (“[T]he Secretary shall give the benefitof the doubt to the claimant” whenever “there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter”); §7252(a) (allowing the veteran, but not the Secretary, to appeal an adverse decision to the Veterans Court). Given Congress’s understandable decision to place a thumb on the scale in the veteran’s favor in the course of administrative and judicial review of VA decisions, I would not remove a comparable benefit in the Veteran’s Court based on the ambiguous directive of §7261(b)(2).
Cite as: 556 U. S. ____ (2009) 3
SOUTER, J., dissenting
And even if there were a question in my mind, I wouldcome out the same way under our longstanding “rule thatinterpretive doubt is to be resolved in the veteran’s favor.” Brown v. Gardner, 513 U. S. 115, 118 (1994).
The majority’s other arguments are open to judgment, but I do not see that placing the burden of showing harm on the VA goes so far as to create a “complex, rigid, andmandatory” scheme, ante, at 9, or to impose “an unreasonable evidentiary burden upon the VA,” ante, at 10–11. Under the Federal Circuit’s rule, the VA simply “mustpersuade the reviewing court that the purpose of the notice was not frustrated, e.g., by demonstrating: (1) thatany defect was cured by actual knowledge on the part ofthe 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.” Sanders, supra, at 889. This gives the VA severalways to show that an error was harmless, and the VA has been able to shoulder the burden in a number of cases. See, e.g., Holmes v. Peake, No. 06–0852, 2008 WL 974728, *2 (Vet. App., Apr. 3, 2008) (Table) (finding notice error harmless because the claimant had “actual knowledge of what was required to substantiate” his claim); Clark v. Peake, No. 05–2422, 2008 WL 852588, *4 (Vet. App., Mar. 24, 2008) (Table) (same).
The Federal Circuit’s rule thus strikes me as workable and in keeping with the statutory scheme governing veterans’ benefits. It has the added virtue of giving the VA a strong incentive to comply with its notice obligations, obligations “that g[o] to the very essence of the nonadversarial, pro-claimant nature of the VA adjudication system. . . by affording a claimant a meaningful opportunity toparticipate effectively in the processing of his or herclaim.” Mayfield v. Nicholson, 19 Vet. App. 103, 120–121 (2005).
I would affirm the Federal Circuit and respectfullydissent.

Davis dissent- lay evidence; Jandreau v. Shinseki, No. 08-10052

We were taken with the excellent dissent presented by Judge Davis and think this is of note to vets, especially in regard to "lay evidence".

DAVIS, Judge, dissenting: Because the Secretary's position was not substantially justified, and specifically, it was contrary to judicial precedent, I must respectfully dissent. See White v. Nicholson, 412 F.3d 1314, 1317 (Fed. Cir. 2005) (evaluating "substantial justification" by, among other things, "consistency with judicial precedent . . . and action or failure to act, as reflected in the
record on appeal and the filings of the parties").
The Secretary adopted the following position before the Federal Circuit: "It is well
established [ ] that lay witnesses are not competent to offer opinion testimony on matters requiring specialized skill or training, such as matters of medical diagnosis or etiology." Secretary's Brief at 14. In other words, the Secretary supported the proposition that a lay person is per se not competent to provide diagnosis or etiology of any condition, and thus, this evidence alone could not establish service connection.
That position was unequivocally rejected nearly eight months prior in Buchanan v.
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), a case that was noticeably absent from the Secretary's brief (the appellant's brief did at least cite this controlling case). In Buchanan, the Federal Circuit held:
[T]he Board's statement, that the lay statements lack credibility absent confirmatory clinical records to substantiate such recollections . . . reflects a legally untenable interpretation of the above enumerated statutory and regulatory provisions: that absent confirmatory medical evidence, lay evidence lacks credibility. While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Such an interpretation is unreasonable because it would render portions of the statutes and regulations meaningless as it would read out the option of establishing service connection based on competent lay evidence. Id. at 1336. Significantly, the Federal Circuit held that the statutory and regulatory provisions "make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. Thus, even an exceedingly narrow interpretation of Buchanan's holding would tend to put a reasonable person on
10
notice that lay evidence should not be summarily dismissed. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting that under Buchanan, the determination that "'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis' is too broad"). In the same sense, Buchanan made clear that the Secretary cannot continue to reject lay evidence as a matter of law when it pertains to medical diagnosis or etiology; rather, such evidence must be weighed by the fact finder to determine its import. See Buchanan, 451 F.3d at 1337 (noting that it is the Board's obligation to determine "whether lay evidence is credible in and of itself"); see also Jandreau, 492 F.3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."). Perhaps most damaging to the Secretary's position is that the Secretary neither acknowledged nor distinguished Buchanan in support of his view; he simply ignored it. The majority decision now attempts to do this on his behalf and apply its post hoc rationalization to the Secretary's filings before the Federal Circuit. This is not the role of the Court.
In sum, contrary to the majority, Jandreau did not break new ground. The Federal Circuit had already concluded in Buchanan that competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease, and Jandreau simply reiterated the point that lay evidence must be weighed by the fact finder to determine its competence. Because the Secretary ignored then existing law before the Federal Circuit, I would not find the Secretary's position substantially justified and would award attorney fees to the appellant.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 08-10052; 04-1254(E)
ALVA JANDREAU, APPELLANT,
V.
E RIC K. SHINSEKI,
S ECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appellant's Application for Attorney Fees and Expenses
(Decided April 8, 2009)
Ronald L. Smith, of Washington, D.C., for the appellant.
Richard Mayerick, Deputy Assistant General Counsel, with Paul J. Hutter, Acting General
Counsel; R. Randall Campbell, Assistant General Counsel, all of Washington, D.C., for the appellee.
Before GREENE, Chief Judge, HAGEL and DAVIS, Judges.
GREENE, Chief Judge, filed the opinion of the Court. DAVIS, Judge, filed a dissenting
opinion.
GREENE, Chief Judge: Before the Court is Alva Jandreau's January 14, 2008, application
for an award of $20,372.59 in attorney fees and expenses under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412(d). The Secretary argues only that his position was substantially justified,
and therefore, the application should be denied. For the reasons that follow, the EAJA application
will be denied.
I. PROCEDURAL BACKGROUND
In an August 2006 single-judge order, the Court affirmed a May 2004 Board of Veterans'
Appeals (Board) decision denying VA service connection for residuals of a right-shoulder
dislocation. The Court held that the Board did not err in ruling that Mr. Jandreau had not presented
competent evidence that his current condition was the result of a shoulder dislocation during service
2
and that, as a lay person, Mr. Jandreau could not opine as to the etiology of his current disability.
Jandreau v. Nicholson, No. 04-1254, 2006 WL 2805545 (Vet. App. Aug. 24, 2006). Mr. Jandreau
appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit), and the
Secretary contested that appeal on the basis that this Court had ruled that medical evidence was
required for establishing an in-service diagnosis of a dislocated shoulder. The Federal Circuit
reversed this Court's decision after holding that medical evidence was not necessarily required to
diagnose Mr. Jandreau's in-service condition as a dislocated shoulder. Jandreau v. Nicholson,
492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Accordingly, the Court remanded Mr. Jandreau's claim
to the Board for further adjudication. Jandreau v. Mansfield, No. 04-1254, 2007 WL 3021653
(Vet. App. Oct. 16, 2007). This EAJA application followed.
II. EAJA LAW
This Court has jurisdiction to award reasonable attorney fees and expenses pursuant to
28 U.S.C. § 2412(d)(2)(F). Mr. Jandreau's EAJA application was filed within the 30-day application
period set forth in 28 U.S.C. § 2412(d)(1)(B) and satisfies the requirements that the application
contain (1) an allegation that, by virtue of the Court's remand, Mr. Jandreau is a prevailing party
within the meaning of EAJA; (2) a showing that he is a party eligible for an EAJA award because
his net worth does not exceed $2,000,000; (3) an allegation that the position of the Secretary was not
substantially justified; and (4) an itemized fee statement. 28 U.S.C. § 2412(d)(1)(A), (1)(B), and
(2)(B); Scarborough v. Nicholson, 19 Vet.App. 253 (2005); Cullens v. Gober, 14 Vet.App. 234, 237
(2001) (en banc).
There is no dispute that Mr. Jandreau is a prevailing party; the only issue in contention is
whether the Secretary's litigation position was substantially justified. Mr. Jandreau maintains that
the Secretary's litigation position before the Federal Circuit failed to account for the Federal Circuit's
holding in Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006), that "competent lay
evidence can be sufficient in and of itself" to establish entitlement to a benefit. The Secretary
maintains that his position during the litigation stage was substantially justified because a matter of
evolving caselaw was at issue, and that it was reasonable for him to have relied upon this Court's
ruling, which was issued after the Federal Circuit's Buchanan decision.
3
Once an allegation of lack of substantial justification is made, the burden is on the Secretary
to demonstrate that VA was substantially justified in its positions. See Cullens, supra; Locher v.
Brown, 9 Vet.App. 535, 537 (1996). The Secretary's position is substantially justified "'if a
reasonable person could think it correct, that is, if it has a reasonable basis in law and fact.'" Stillwell
v. Brown, 6 Vet.App. 291, 302 (1994) (quoting Pierce v. Underwood, 487 U.S. 552, 566 n.2 (1988)).
That determination is based not on any single factor, but on the totality of the circumstances and
includes consideration of, "among other things, 'merits, conduct, reasons given, and consistency with
judicial precedent and VA policy with respect to such position, and action or failure to act, as
reflected in the record on appeal and the filings of the parties'" before the Court. White v. Nicholson,
412 F.3d 1314, 1317 (Fed. Cir. 2005) (quoting Johnson v. Principi, 17 Vet.App. 436, 442 (2004));
see also Stillwell, supra. Additionally, the evolution of law that has often resulted in new, different,
or more stringent requirements for adjudication is one factor for the Court to consider. Stillwell,
supra; see Bowey v. West, 218 F.3d 1373, 1376-77 (Fed. Cir. 2000) (holding that substantial
justification shall be determined on basis of law that was in existence at time Government adopted
its position). Arguments presented in a case of first impression are more likely to be considered
substantially justified than those where the Court determines that the Secretary ignored existing law.
See Johnson, supra. However, "'[a] lack of judicial precedent adverse to the government's position
does not preclude a fee under the EAJA.'" Felton v. Brown, 7 Vet.App. 276, 281 (1994) (quoting
Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir. 1988)).
III. ANALYSIS
The question before us is whether the Secretary has met his burden of demonstrating that
the government's litigation position before the Federal Circuit in this case had a reasonable basis in
law and fact. The Secretary argues that Jandreau was a case of first impression and that reasonable
minds could differ concerning the role of lay evidence in determining medical matters even after the
Federal Circuit's holding in Buchanan. To answer this question, we first must briefly review the use
of lay evidence in claims for veterans benefits and the role the Federal Circuit's holdings in
Buchanan and Jandreau have played in shaping this area of veterans benefits law.
4
A. Lay Evidence in Veterans Law
Veterans may receive compensation when it is established that they have current disabilities
resulting from an injury or disease incurred in or aggravated by active service. See 38 U.S.C.
§§ 1110, 1131. When adjudicating a claim for veterans benefits, "[t]he Secretary shall consider all
information and lay and medical evidence of record." 38 U.S.C. § 5107(b). Service connection may
be established directly or through a statutory or regulatory presumption. For direct service
connection for a disability, a veteran must show (1) medical evidence of a current disability;
(2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a
disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or
injury and the present disability. See Hickson v. West, 12 Vet.App. 247, 253 (1999); Caluza v.
Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
Alternatively, if certain chronic diseases are diagnosed in service or within the applicable
presumptive period, then subsequent manifestations of those same chronic disease at any later date
generally will be service connected on a presumptive basis even without any medical evidence of
a nexus between the in-service disease and the present condition–the third element required for direct
service connection. See 38 U.S.C. § 1112; Groves v. Peake, 524 F.3d 1306, 1310 (Fed. Cir. 2008);
38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a) (2008); see also Savage v. Gober, 10 Vet.App. 488, 494-95
(1997). Our caselaw further instructs that lay testimony is competent to establish the presence of
observable symptomatology but is not competent to prove that which would require specialized
knowledge or training. See Layno v. Brown, 6 Vet.App. 465, 470 (1994). Prior to the Federal
Circuit's decision in Jandreau, issues that required medical knowledge to render a competent opinion
included a medical diagnosis and the etiology of a disability. See Moray v. Brown, 5 Vet.App. 211,
214 (1993); Espiritu v. Derwinski, 2 Vet.App. 492, 494-95 (1992).
B. Buchanan v. Nicholson
In Buchanan, a veteran sought to establish an in-service incurrence of a disability–element
two of service connection–by submitting lay evidence recalling his medical condition during service.
Alternatively, the veteran sought a presumption of service connection based on lay testimony
concerning the onset of his chronic disease. The Board found that the veteran's recollections of
medical problems some 20 years after his separation from service lacked credibility absent
5
confirmatory clinical records establishing an in-service incurrence of his disease and, that even if his
disability began within one year of discharge, there was insufficient medical evidence to determine
whether it was disabling to a compensable degree during that time as required for presumptive
service connection. See 38 C.F.R. § 3.307(a) (2008) (certain chronic diseases are presumed to be
service connected if they are manifested to compensable degree within one year of discharge). On
appeal, this Court held that the Board acted within its province in determining that the veteran's lay
evidence concerning the onset of his disability lacked credibility. See Buchanan v. Nicholson,
No. 02-1524, 2005 WL 896458 (Vet. App. Feb. 16, 2005). The Federal Circuit reversed that
decision after holding that the Board "cannot determine that lay evidence lacks credibility merely
because it is unaccompanied by contemporaneous medical evidence." Buchanan, 451 F.3d at 1337.
The Federal Circuit pointed out that the Board had not made any determination regarding whether
the veteran was competent to provide evidence of the onset of his disability, but had erred in
determining that the veteran was not credible. Id. at 1336 ("The Board's decision . . . does not reflect
a determination on the competency of the lay statements."). With regard to presumptive service
connection for a chronic condition, the Federal Circuit stated that § 3.307(b) does not require both
medical and competent lay evidence to establish the existence of a chronic disease, and thus,
"competent lay evidence can be sufficient in and of itself" to establish entitlement to a benefit.
Buchanan, 451 F.3d at 1335 (citing 38 C.F.R. § 3.307(b) (in claiming chronic disease, "factual basis
may be established by medical evidence, competent lay evidence[,] or both.")).
Upon review, we find the Federal Circuit's Buchanan decision harmonious with this Court's
previous precedent and existing VA regulations that provide that, in certain cases, lay evidence may
establish element two for direct service connection of a current disability. See Hickson, Caluza, and
Layno, all supra; 38 C.F.R. § 3.303. Similarly, Buchanan is in line with the previous legal
framework that lay evidence may be competent to prove the existence of a chronic disease that can
be diagnosed or demonstrated without medical expertise in presumptive service-connection claims.
See Savage, 10 Vet.App. at 495 (for certain chronic diseases, lay evidence may be competent to
identify in-service existence of chronic disease and whether current condition is subsequent
manifestation of that same chronic disease); 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). The
distinction between the use of lay evidence in direct service-connection claims and presumptive
Our dissenting colleague is mistaken that this Court or the Board summarily 1 dismissed the competency of Mr.
Jandreau's lay evidence. To the contrary, this Court held that Mr. Jandreau had presented competent lay testimony to
VA regarding an in-service injury to his shoulder, but could not provide the medical diagnosis that was required to
establish the etiology of his current disability. Jandreau, 2006 WL 2805545 at *3 (holding that Mr. Jandreau is
competent to testify as to his shoulder pain and limitation of motion, but whether he experienced dislocation of his
shoulder requires medical diagnosis).
6
service-connection claims for chronic diseases exists because in the latter case the lay evidence is
not being used to establish a medical causation or etiology but rather to establish, by evidence of
observable symptomatology, that the currently diagnosed chronic disease is the same condition that
was present during service or during the presumptive period of § 3.307(a). Thus, although Buchanan
provided new requirements for determining the credibility of lay evidence, we find nothing in the
Buchanan holding that broke new ground concerning the competency of lay evidence to establish
service connection either on a direct basis or through the presumption afforded to certain chronic
diseases.
C. Jandreau v. Nicholson
In the case underlying this EAJA application, Mr. Jandreau sought direct service connection
for residuals of a right-shoulder dislocation. He presented the Board with medical evidence showing
that he had been diagnosed with joint arthritis and rotator cuff impingement of the right shoulder that
was most likely the result of a right-shoulder dislocation and lay evidence, in the form of his own
testimony and a statement from a fellow serviceman, that he had dislocated his right shoulder during
his Army basic training in 1957. VA found that his service medical records were presumed to have
been destroyed in a fire at the National Personnel Records Center. The Board denied his claim after
finding that Mr. Jandreau was competent to present evidence that he had an injury during service but
not competent to establish that the injury he experienced in 1957 was the etiology of his current
disability. On appeal, the Court affirmed the Board's decision that a diagnosis of Mr. Jandreau's
shoulder injury during basic training required medical evidence. Jandreau, 2006 WL 2805545 at *3.
The Court determined that because no such medical diagnosis had been presented, either in service
or after service, the Board was correct in finding that there was no competent evidence linking Mr.
Jandreau's current disabilities to the 1957 in-service shoulder injury, and thus, service connection
was not warranted1. Id.
The Federal Circuit, however, seemingly recognized that there 2 were other possibilities for addressing this
problem in their next paragraph by acknowledging and agreeing with this Court's holding that a diagnosis of an in-service
condition may be established by a medical professional who uses lay testimony describing symptoms at the time to make
a retrospective diagnosis. Jandreau, 492 F.3d at 1377; see Caluza, 7 Vet.App. at 505 (service connection may be
established even if condition was not diagnosed until after service when evidence demonstrates in-service incurrence).
7
In reversing this Court's decision, the Federal Circuit held that to require a medical diagnosis
of Mr. Jandreau's in-service injury was inconsistent with the holding of Buchanan. See Jandreau,
492 F.3d at 1376-77. Specifically, the Jandreau decision relied upon what it found to be the rule
announced in Buchanan–that "'competent lay evidence can be sufficient in and of itself.'" Id. at 1376
(quoting Buchanan, 451 F.3d at 1335). The Federal Circuit found that this rule was of heightened
importance given that Mr. Jandreau's service medical records were presumed to have been destroyed,
stating that without accepting his lay diagnosis, it would be virtually impossible to establish service
connection.2 Accordingly, the Federal Circuit determined that, under Buchanan, this Court's holding
in Jandreau that only competent medical evidence could establish the missing medical etiology or
medical diagnosis "was too broad." Jandreau, 492 F.3d at 1377.
In Jandreau, the Federal Circuit identified two instances in which lay evidence, even without
supporting medical evidence, may be competent and sufficient to establish the diagnosis of a
condition: (1) Where the lay person is competent to identify the medical condition and (2) where the
lay person is recalling an unavailable contemporaneous medical diagnosis. Jandreau, 492 F.3d at
1377. In a footnote, the decision instructed merely that a layperson is competent to "identify" the
condition "where the condition is simple, for example a broken leg." Id. at n. 4. The Federal Circuit
declined to consider whether a lay person is competent to diagnosis a shoulder dislocation, finding
that this was a factual determination to be made by VA in the first instance. Id. at 1377.
D. Substantial Justification
The Federal Circuit's holding in Jandreau constituted an evolution of VA benefits law in a
case of first impression. See Stillwell, supra. The Secretary correctly points out that the Federal
Circuit provided no citation of law for its discussion in Jandreau of the circumstances where lay
evidence may be competent to diagnosis certain medical conditions. Mr. Jandreau's contention that
it was unreasonable for the Secretary not to attempt to distinguish Buchanan in the briefing before
8
the Federal Circuit is diminished by the fact that Mr. Jandreau cited to Buchanan only once, in a
string cite and with no parenthetical.
Our dissenting colleague argues that the Federal Circuit's language in Buchanan that
competent lay evidence can be sufficient in and of itself "unequivocally rejected" this Court's
precedential caselaw that a lay person, such as Mr. Jandreau, is, per se, not competent to diagnose
an injury that requires medical knowledge. However, we see this as a bridge too far. The statement
quoted by the dissent from Buchanan was in reference to a veteran attempting to establish
presumptive service connection for a chronic disease, and thus, has little relevance to a lay person
attempting to provide a medical etiology opinion for a current shoulder condition. While Buchanan
established that lay evidence can, in certain circumstances, be credible even without supporting
medical evidence, Jandreau represents a furtherance of the previous legal framework regarding the
competency of lay evidence to provide a retrospective medical diagnosis, and thus, evidence of a
nexus between a claimed in-service injury and a present disability. Compare Jandreau with Moray
and Espiritu, both supra.
We hold that the Secretary's litigation position before the Federal Circuit–that a medical
diagnosis was required to establish that Mr. Jandreau's reported in-service symptoms were, in fact,
a dislocated shoulder to link his service with his currently diagnosed residuals of a dislocated
shoulder–was not contrary to established law at the time. At the very least, reasonable minds could
differ as to whether the Buchanan holding regarding the competency of lay evidence to recognize
a chronic disease absent supporting medical evidence extended to the competency of lay evidence
to diagnose a 40-year-old injury as a dislocated shoulder that has resulted in a current disability.
Accordingly, the Secretary has met his burden of establishing that his litigation position in the appeal
of this case before the Federal Circuit was reasonable, and thus, substantially justified. See Cullens,
supra; Stillwell, 6 Vet.App. at 303; see also Carpenter v. West, 12 Vet.App. 316, 321 (1999)
('"EAJA redresses governmental abuse, it was never intended to chill the government's right to
litigate or to subject the public fisc to added risk of loss when the government chooses to litigate
reasonably substantiated positions, whether or not the position later turns out to be wrong.'") (quoting
Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993)).
9
IV. CONCLUSION
Upon consideration of the pleadings filed for this appeal, and for the reasons stated herein,
the EAJA application is DENIED.

DAVIS, Judge, dissenting: Because the Secretary's position was not substantially justified, and specifically, it was contrary to judicial precedent, I must respectfully dissent. See White v. Nicholson, 412 F.3d 1314, 1317 (Fed. Cir. 2005) (evaluating "substantial justification" by, among other things, "consistency with judicial precedent . . . and action or failure to act, as reflected in the
record on appeal and the filings of the parties").
The Secretary adopted the following position before the Federal Circuit: "It is well
established [ ] that lay witnesses are not competent to offer opinion testimony on matters requiring specialized skill or training, such as matters of medical diagnosis or etiology." Secretary's Brief at 14. In other words, the Secretary supported the proposition that a lay person is per se not competent to provide diagnosis or etiology of any condition, and thus, this evidence alone could not establish service connection.
That position was unequivocally rejected nearly eight months prior in Buchanan v.
Nicholson, 451 F.3d 1331 (Fed. Cir. 2006), a case that was noticeably absent from the Secretary's brief (the appellant's brief did at least cite this controlling case). In Buchanan, the Federal Circuit held:
[T]he Board's statement, that the lay statements lack credibility absent confirmatory clinical records to substantiate such recollections . . . reflects a legally untenable interpretation of the above enumerated statutory and regulatory provisions: that absent confirmatory medical evidence, lay evidence lacks credibility. While the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran's lay evidence, the lack of such records does not, in and of itself, render lay evidence not credible. Such an interpretation is unreasonable because it would render portions of the statutes and regulations meaningless as it would read out the option of establishing service connection based on competent lay evidence. Id. at 1336. Significantly, the Federal Circuit held that the statutory and regulatory provisions "make clear that competent lay evidence can be sufficient in and of itself." Id. at 1335. Thus, even an exceedingly narrow interpretation of Buchanan's holding would tend to put a reasonable person on
10
notice that lay evidence should not be summarily dismissed. See Jandreau v. Nicholson, 492 F.3d
1372, 1376-77 (Fed. Cir. 2007) (noting that under Buchanan, the determination that "'competent medical evidence is required . . . [when] the determinative issue involves either medical etiology or a medical diagnosis' is too broad"). In the same sense, Buchanan made clear that the Secretary cannot continue to reject lay evidence as a matter of law when it pertains to medical diagnosis or etiology; rather, such evidence must be weighed by the fact finder to determine its import. See Buchanan, 451 F.3d at 1337 (noting that it is the Board's obligation to determine "whether lay evidence is credible in and of itself"); see also Jandreau, 492 F.3d at 1377 ("Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans' Court."). Perhaps most damaging to the Secretary's position is that the Secretary neither acknowledged nor distinguished Buchanan in support of his view; he simply ignored it. The majority decision now attempts to do this on his behalf and apply its post hoc rationalization to the Secretary's filings before the Federal Circuit. This is not the role of the Court.
In sum, contrary to the majority, Jandreau did not break new ground. The Federal Circuit had already concluded in Buchanan that competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease, and Jandreau simply reiterated the point that lay evidence must be weighed by the fact finder to determine its competence. Because the Secretary ignored then existing law before the Federal Circuit, I would not find the Secretary's position substantially justified and would award attorney fees to the appellant.

Timeline: VA Endoscopy Alerts and Notices

Time Line for VA Alerts regarding endoscopes and processing

VHA Patient Safety Alerts and Advisories
http://www.va.gov/ncps/alerts.html

Note: This list of alerts is not complete.
+++++++++++
March 8, 2002 Alert
Bronchoscopes Manufactured by Olympus America
+++++++++++
March 6, 2003 Advisory
Olympus EXERA™ Gastrointestinal Endoscopes
+++++++++++
February 13, 2004 Alert
Connectors for Sterilization of all Gastrointestinal Fiberoptic Endoscopes
+++++++++++
October 5, 2005 Alert
Olympus 180 series endoscopes and Steris Quick Connects
PDF Version | Word Version
+++++++++++
March 12, 2008 Alert
STERIS C1160 Universal Flexible Processing Trays used with the STERIS System 1 Sterile Processing Systems
AL08-11
++++++++++++
March 31, 2008 Alert
Improper reprocessing of flexible endoscope biopsy valves
AL08-13
++++++++++++
December 22, 2008 Alert
Improper set-up and reprocessing of flexible endoscope tubing and accessories
AL09-07
+++++++++++

Miami Herald 2009 Time line
http://www.miamiherald.com/news/more-info/story/1005226.html

• January: VA facilities and hospitals review processes and report back to Washington. The Miami VA reports that it has no sanitization problems.

• Feb. 10: The VA center in Augusta, Ga., sends letters to 1,100 veterans who had endoscopic procedures at its ear, nose and throat clinic, warning they might have been exposed to hepatitis B, hepatitis C or HIV. It said that between January and November 2008 the equipment might not have been properly sanitized.

• Feb. 13: The VA medical center in Murfreesboro, Tenn., sends letters to nearly 6,400 veterans warning that improperly assembled colonoscopy equipment may have exposed them to hepatitis B, hepatitis C and HIV. The problem occurred between April 23, 2003 and Dec. 1, 2008, it said.

• March 8-14: The VA initiates a ''step-up'' program directing all VA hospitals and clinics to check if they have contamination problems, and to set up new training programs. In the course of the new inspection, the Miami VA discovers its problem and reports it to Washington.

• March 23: The Miami VA medical center sends a letter to about 3,260 veterans, warning that if they had colonoscopies at the local hospital, improperly sanitized equipment might have exposed them to hepatitis B, hepatitis C or HIV.

• March 27: A five-member team from the VA arrives in Miami to investigate what went wrong. Members of Congress call for additional probes by the VA Inspector General's Office and the U.S. House Committee on Veterans' Affairs.

• April 17: The VA announces that one Miami veteran has tested positive for HIV, seven for hepatitis C and none for hepatitis B.

Update: Contaminated endoscopes: VA can't say that any VA facility properly sterilized their endoscopy equipment.

Given VA statement that "it does not yet know if veterans treated with the same kind of equipment at its other 150 hospitals may have been exposed to the same mistake before the department had a nationwide safety training campaign.

Given this uncertainty and the deadly nature that such an exposure can have, it is time for the VA to step forward and have everyone tested. This means each and every veteran, at each of the 150 VA medical facilities, that may of been exposed.

We urge every veteran that has undergone any type of "endoscopy" procedure at any VA facility to get tested. Request a copy of all your medical records, TODAY.

++++++++++
Initial tests show one patient each from VA medical facilities in Murfreesboro, Tenn.; Augusta, Ga.; and Miami has the virus that causes AIDS, according to a VA statement.
++++++++++
The VA also said there have been six positive tests for the hepatitis B virus and 19 positive tests for hepatitis C at the three locations.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
http://news.yahoo.com/s/ap/20090417/ap_on_re_us/veterans_colonoscopies;_ylt=AhzhBJRiINXNvE6t.a3i3O.s0NUE;_ylu=X3oDMTFlZ211NGk5BHBvcwM1OARzZWMDYWNjb3JkaW9uX3Vfc19uZXdzBHNsawN2YTNwYXRpZW50c2g-

VA: 3 patients HIV-positive after clinic mistakes

By BILL POOVEY, Associated Press Writer Bill Poovey, Associated Press Writer – 36 mins ago

CHATTANOOGA, Tenn. – Three patients exposed to contaminated medical equipment at Veterans Affairs hospitals have tested positive for HIV, the agency said Friday. Initial tests show one patient each from VA medical facilities in Murfreesboro, Tenn.; Augusta, Ga.; and Miami has the virus that causes AIDS, according to a VA statement.

The three cases included one positive HIV test reported earlier this month, but the VA didn't identify the facility involved at the time.

The patients are among more than 10,000 getting tested because they were treated with endoscopic equipment that wasn't properly sterilized and exposed them to other people's body fluids.

Vietnam veteran Samuel Mendes, 60, said he was surprised to learn of an HIV case linked to the Miami facility, where he had a colonoscopy. He was told he wasn't among those at risk.

"I was hoping and expecting to not get anyone contaminated like that," he said. "It's probably a little worse than we thought."

The VA also said there have been six positive tests for the hepatitis B virus and 19 positive tests for hepatitis C at the three locations.

There's no way to prove patients were exposed to the viruses at its facilities, the agency said.

"These are not necessarily linked to any endoscopy issues and the evaluation continues," the statement said.

The VA has said it does not yet know if veterans treated with the same kind of equipment at its other 150 hospitals may have been exposed to the same mistake before the department had a nationwide safety training campaign.

An agency spokeswoman has said the mistake with the equipment was corrected nationwide by the time the campaign ended March 14. The problems discovered in December date back more than five years at the Murfreesboro and Miami hospitals.

The VA's disclosure Friday was the department's first comment since April 3, when the VA reported the one positive HIV test.

VA spokeswoman Katie Roberts has declined to provide any details on how widespread the problems might have been other than saying a review of the situation continues.

She said in an e-mail Friday that "there is a very small risk of harm to patients from the procedures at each site." She said the HIV results "still need to be verified" in additional tests.

The VA statement shows the number of "potentially affected" patients totals 10,797, including 6,387 who had colonoscopies at Murfreesboro, 3,341 who had colonoscopies at Miami and 1,069 who were treated at the ear, nose and throat clinic at Augusta.

More than 5,400 patients, about half of those at risk, have been notified of their follow-up test results, the VA said.

The Friday statement said the VA is "continuing to notify individuals whose letters have been returned as undeliverable, and working with homeless coordinators to reach veterans with no known home address."

The statement also said the VA has assigned more than 100 employees at the three locations to "ensure that affected veterans receive prompt testing and appropriate counseling."

All three sites used endoscopic equipment made by Olympus American Inc., which has said in a statement it is helping the VA address problems with "inadvertently neglecting to appropriately reprocess a specific auxiliary water tube."

Charles Rollins, 62, who served three tours in Vietnam with the Navy from 1966 to 1969, said the news concerns him because he's used the Augusta ear, nose and throat clinic several times.

"That's terrible," he said by phone as he socialized at an American Legion post in Augusta.

___

Associated Press writers Lisa Orkin in Miami and Dorie Turner in Atlanta contributed to this report.

VCAA obligation to discuss regulations or legal theories, Goodwin v. Peake, No. 05-0876

Goodwin v. Peake, M.D., No. 05-0876 (Decided May 19, 2008 )

whether, apart from VCAA issues, this case is affected by 38 C.F.R. § 3.156(c). Pursuant to that provision, if, after it has issued a decision on a claim for benefits, VA receives additional service department records that "existed and had not been associated with the claims file when VA first decided the claim," VA will reconsider the claim. 38 C.F.R. § 3.156(c)(3).
+++++++++++++++++++++
As a logical extension of Wilson, Dingess, and Locklear, all supra, we hold that VA has no obligation under the VCAA notification procedures to discuss regulations or legal theories not implicated by a liberal and reasonable reading of a claimant's application.

++++++++++++++++++++


++++++++++++++++++++


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 05-0876
MICHELLE R. GOODWIN, APPELLANT,
V.
JAMES B. PEAKE, M.D.,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided May 19, 2008 )
Robert V. Chisholm, of Providence, Rhode Island, was on the brief for the appellant.
Paul J. Hutter, General Counsel; R. Randall Campbell, Assistant General Counsel; Carolyn
F. Washington, Deputy Assistant General Counsel; and Tracy K. Alsup, Appellate Attorney, all of
Washington, D.C., were on the brief for the appellee.
Before MOORMAN, LANCE, and DAVIS, Judges.
DAVIS, Judge: In a single-judge memorandum decision dated May 2, 2007, the Court
affirmed a February 18, 2005, decision of the Board of Veterans' Appeals (Board) that denied an
effective date earlier than April 12, 2000, for the appellant's service-connected post-traumatic stress
disorder (PTSD). On May 18, 2007, the appellant filed a timely motion for single-judge
reconsideration.
In order to address issues raised by the reconsideration motion as to the interaction of recent
precedent of this Court and the U.S. Court of Appeals for the Federal Circuit (Federal Circuit), the
Court requested and received a response from the Secretary. Upon consideration of the arguments
presented in the appellant's reconsideration motion, the Secretary's response, and the associated
briefs, the Court assigned the case for panel consideration. The panel hereby withdraws the May 2,
2007, decision, and issues this decision in its place.
The appellant argues that VA failed to provide adequate notice, pursuant to the Veterans.It is not clear from the record what prompted this medical examination, and the briefs do not 1
explain why VA sought further medical evidence after maintaining the denial in the March 2002
SOC.
2
Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, § 3(a), 114 Stat. 2096 (codified in
part at 38 U.S.C. § 5103(a)), as to the effective date element of her PTSD claim, styled as an "earlier
effective date claim." This appeal is timely, and the Court has jurisdiction to review the Board's
decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the following reasons, we affirm the
February 2005 Board decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Navy from April 1985 to July 1991. In
October 1991, she submitted a service-connection claim for chronic stress. In July 1992, the San
Diego, California, VA regional office (RO) denied her service-connection claim for a psychiatric
disability, and the decision became final. In October 1998, the Muskogee, Oklahoma, RO
considered medical evidence the appellant submitted as an informal claim for PTSD linked to an
alleged incident of sexual harassment. In February 1999, the RO denied service connection for
PTSD, and that decision also became final.
In April 2000, the appellant submitted new medical records dated March 2000 in support of
her service-connection claim for PTSD. In August 2000, the RO reopened but denied her claim on
the merits, and she filed a Notice of Disagreement (NOD) as to that decision in December 2000. The
RO issued a Statement of the Case (SOC) in March 2002 maintaining denial of the PTSD claim.
Following an April 2002 VA medical examination, the RO granted service connection for 1
PTSD and total disability based on individual unemployability (not permanent) in a July 2002 rating
decision, assigning an effective date of May 15, 2000. This rating decision also denied dependents'
educational assistance on the basis that the disability was not permanent. In October 2002, the
appellant filed an NOD contesting the May 15, 2000, effective date, the denial of a permanent and
total disability rating, and the denial of dependents' educational assistance. In a June 2003 SOC, the
RO granted an earlier effective date of April 12, 2000, for the appellant's PTSD, explaining that its
assignment of a May 2000 effective date was erroneous. In a July 2003 decision, a decision review.3
officer maintained the denial of an effective date earlier than April 2000 and the appellant filed
another NOD, seeking an earlier effective date and a permanent and total disability rating.
In a September 2003 letter, the RO explained the evidentiary requirements pertaining to the
claims for a permanent and total disability rating and for dependents' educational assistance. The
September 2003 letter, however, discussed no evidentiary requirements for establishing an earlier
effective date for the service-connected PTSD. The RO issued an SOC in December 2003 and a
Supplemental SOC (SSOC) in July 2004, both of which maintained the denial of an effective date
earlier than April 2000. In its decision here on appeal, the Board also denied entitlement to an
effective date earlier than April 2000 while granting permanency for the PTSD rating.
II. CONTROLLING LAW
"Upon receipt of a complete or substantially complete application" for benefits, the Secretary
must inform the claimant of (1) information and evidence not previously provided to the Secretary
that is necessary to substantiate the claim; (2) the portion of that information and evidence, if any,
that the claimant is expected to provide; and (3) the portion of that information and evidence, if any,
that the Secretary will attempt to obtain on behalf of the claimant. 38 U.S.C. § 5103(a); see also
Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002). In addition, this Court has held that the
implementing regulation, 38 C.F.R. § 3.159(b)(1), imposes a fourth element, that VA "request that
the claimant provide any evidence in the claimant's possession that pertains to the claim." Pelegrini
v. Principi, 18 Vet.App. 112, 121 (2002). Errors with respect to these notice elements are referred
to as first-element, second-element, third-element, and fourth-element notice errors, respectively.
See Sanders v. Nicholson, 487 F.3d 881, 886 (2007), petition for cert. filed, Peake v. Sanders (U.S.
Mar. 21, 2008) (No. 07-1209).
Of primary importance in the VCAA statutory scheme and the jurisprudence that has
developed following its enactment is the principle that "VA [shall] provide affirmative notification
to the claimant prior to the initial decision in the case as to the evidence that is needed and who shall
be responsible for providing it." Mayfield v. Nicholson, 444 F.3d 1328, 1333 (2006) (Mayfield II)
(emphasis added); see also Sanders, 487 F.3d at 886 (citing Mayfield II, 444 F.3d at 1333); Hartman
v. Nicholson, 483 F.3d 1311, 1314 (2007) (citing Mayfield II, 444 F.3d at 1333). To that end,.4
"section 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." Mayfield
v. Nicholson, 19 Vet.App. 103, 120-21 (2005) (Mayfield I) (citation omitted).
In Mayfield I, this Court addressed in detail the rule of prejudicial error in the VCAA notice
context. Id. Initially, we held that "before prejudice becomes relevant . . . the Court must conclude
that there has been an error . . . . [and that] every appellant must carry the general burden of
persuasion regarding contentions of error." Id. at 111. Turning to the issue of prejudicial error, the
Court concluded that first-element notice errors have the effect of naturally producing prejudice. The
Court therefore assigned to the Secretary the burden of either refuting the allegation of error or
demonstrating that the claimant was not prejudiced by the error, even in the absence of an allegation
of prejudice. Id. at 122. As to second-, third-, and fourth-element notice errors, as well as timing
errors, we held that the burden of establishing prejudice was on the claimant. Id. at 122-23.
In Dingess v. Nicholson, 19 Vet.App. 473 (2006), we further addressed the VCAA's
substantive notice requirements. Particularly, we clarified the meaning of the term "claim" as
consisting of five elements: (1) Claimant's status as a veteran; (2) existence of a current disability;
(3) nexus between the disability and the veteran's service; (4) degree of disability; and (5) effective
date of the disability. Id. at 484. We held that VCAA notice requirements apply to all five elements
of a claim. Id. at 486. With respect to the effective-date element, we stated that VCAA notice must,
at a minimum, include a statement that an effective date for the award of benefits will be assigned
if service connection is granted and that this date will be assigned based on when the evidence of the
disability was submitted, or the day after the veteran's discharge if that evidence was submitted
within one year of discharge. Id. at 486, 488. Additionally, the content of the application for
benefits may raise more specific evidentiary requirements that VA must address with regard to
particular elements of the claim. Id. at 487, 488-89.
In Dingess, the Court considered a situation where a decision awarding service connection,
a disability rating, and an effective date has been issued prior to the enactment of the VCAA, but
the claimant nonetheless argued that he was prejudiced by inadequate VCAA notice. The Court
held that "[i]n cases where service connection has been granted and an initial disability rating and.5
effective date have been assigned, the typical service-connection claim has been more than
substantiated–it has been proven." Id. at 491. Hence, the Court held that after an appellant has filed
an NOD as to the initial effective date or disability rating assigned–thereby initiating the appellate
process–different, and in many respects, more detailed notice obligations arise, the requirements of
which are set forth in sections 7105(d) and 5103A. Id. The Court ultimately held that VCAA notice
was not required because "the purpose that the notice [was] intended to serve has been fulfilled."
Id.
In Mayfield II, the Federal Circuit held that VCAA-compliant notice may not be
accomplished by aggregating postdecisional documents from which a veteran might have been able
to glean what evidence was lacking at the time of the initial adjudication. 444 F.3d at 1333.
Furthermore, in reviewing a Board finding of VCAA compliance, this Court may only consider the
content of the communications on which the Board relied in making that finding. Id. at 1334.
The Federal Circuit noted that because the VCAA became effective after the initial decision
by the RO, strict compliance with the timing requirements set forth in Mayfield I was impossible.
Instead, the Federal Circuit held that such a timing problem could be "cured" by issuing a fully
compliant VCAA notice and then readjudicating the claim. Id. In a subsequent decision after
remand, the Federal Circuit upheld this Court's holding that an SSOC may serve as a readjudication.
See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield III). The Federal Circuit
further clarified that because the initial timing error was cured by a VCAA-compliant notice and
subsequent readjudication, harmless error analysis is not needed with respect to that initial timing
error. Id. at 1324. The Federal Circuit did not, at that time, address our prejudicial-error analysis.
Thereafter, this Court issued its decision in Overton v. Nicholson, 20 Vet.App. 427 (2006),
reaffirming the prejudicial error analysis in Mayfield I. Id. at 439.
Subsequently, in Dunlap v. Nicholson, 21 Vet.App. 112 (2007), we considered the
requirements of 38 U.S.C. § 5103(a) in the context of a claim for which VA granted service
connection after enactment of the VCAA, but without issuing pre-adjudication notice. Although we
agreed with the appellant that there was a VCAA notification error, we held that the prejudice
analysis is altered by the fact that the claim was substantiated and not denied. Preliminarily, we
rejected the appellant's contention that an NOD disputing the initial disability rating constituted a.6
new claim requiring another VCAA notification. We held that the NOD initiates appellate review
of the rating decision and does not constitute a new claim for a rating increase. Id. at 117 (citing
Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997)). We further held that when a notice
error occurs, and the claim is subsequently substantiated, the Court will no longer presume that the
notice error is prejudicial. Id. at 119. Rather, the appellant must demonstrate that the notification
error affected the essential fairness of the adjudication. Id.
After our decision in Dunlap, the Federal Circuit, in Sanders, supra, fully addressed the
prejudicial-error analysis this Court announced in Mayfield I. See Sanders, 487 F.3d at 881. In
Sanders, the veteran's claim had been reopened after remand on the basis of new and material
evidence. After furnishing two VA medical examinations, the RO issued two SSOCs denying the
claim. Relying on the VA medical examinations as the most probative evidence, the Board also
denied the reopened claim. On appeal to this Court, the claimant argued that VA failed to furnish
VCAA-compliant notice identifying the party responsible for obtaining evidence necessary to
substantiate the claim.
At that time, pursuant to Mayfield I, this Court required appellants to demonstrate prejudice
from second-, third-, and fourth-element notice errors. Because Sanders had not alleged any specific
prejudice from the notice errors, this Court held that Sanders had not carried his burden of
demonstrating prejudice and that the Court therefore did not need to decide whether any notice error
had occurred. The Court affirmed the Board's denial of service connection.
The Federal Circuit, however, held that all VCAA notice errors are to be presumed
prejudicial, and that VA has the burden of rebutting this presumption. See Sanders, 487 F.3d at 889,
891; accord Simmons v. Nicholson, 487 F.3d 892 (Fed. Cir. 2007). The Secretary may demonstrate
lack of prejudice by demonstrating, for example, that any notice defect was cured by actual
knowledge on the part of the claimant, that a reasonable person could be expected to understand
from the notice provided what was needed, or that a benefit could not possibly be awarded as a
matter of law. See Sanders, 487 F.3d at 887 (reiterating this Court's language in Mayfield I, 19
Vet.App. at 121).
Subsequent to Sanders, supra, both this Court and the Federal Circuit have elaborated on the
required format and content of VCAA-compliant notice. Such notice "may be generic in the sense.7
that it need not identify evidence specific to the individual claimant's case (though it necessarily must
be tailored to the specific nature of the veteran's claim)." Wilson v. Mansfield, 506 F.3d 1055, 1062
(Fed. Cir. 2007); see, e.g., Kent v. Nicholson, 20 Vet.App. 1, 9-10 (2006) (holding that, in claims
to reopen, VCAA notice requires discussion of new and material evidence and explanation of
evidence required to substantiate elements found insufficient in previous decision). The VCAA does
not require a "predecisional adjudication" of the specific evidence pertaining to a particular claim
because "the duty to notify deals with evidence gathering, not the analysis of already gathered
evidence." Locklear v. Nicholson, 20 Vet.App. 410, 415-16 (2006); see also Wilson, 506 F.3d at
1059 (rejecting argument that VCAA requires "specific notice" that includes pre-decisional
assessment of the evidence). VCAA-compliant notice need not be provided in a single document,
Mayfield II, 444 F.3d at 1333, but when multiple documents are employed, "they must relate to
notice and contain the same content or serve the same purpose as section 5103(a) notification."
Vazquez-Flores v. Peake, 22 Vet.App. 37, 42 (2008). "What the statute and regulation require is that
the claimant be given the required information prior to the VA's decision on the claim and in a form
that enables the claimant to understand the process, the information that is needed, and who will be
responsible for obtaining that information." Mayfield II, 444 F.3d at 1333.
As noted above, this Court has extensively discussed the role of VCAA notice in the entire
VA adjudication scheme. "[O]nce a decision awarding service connection, a disability rating, and
an effective date has been made, section 5103(a) notice has served its purpose, and its application
is no longer required because the claim has already been substantiated." Dingess, 19 Vet.App. at
490. Thereafter, the notice requirements of 38 U.S.C. §§ 5104 and 7105 control as to further
communications with the claimant during the administrative portion of the appeal. Id.; see also
Mayfield II, 444 F.3d at 1333 (notice of decision and SOC under sections 5104 and 7105 serve
different purposes under different statutory requirements than pre-adjudicatory VCAA notice).
III. ANALYSIS
This case raises two issues for the Court's consideration. First, we must review the
appellant's contention that VA did not furnish VCAA-compliant notice as to the effective-date
element of her PTSD claim. Second, we must consider the treatment of any VCAA notice error in.8
view of the fact that the appellant's PTSD claim has been substantiated.
A. Adequacy of VCAA Notice
The threshold issue in this case is whether VA afforded the appellant VCAA-compliant
notice. Clearly, VA did not attempt to give any sort of notice before the initial adjudication of the
appellant's reopened claim, or even before the subsequent RO decision that granted service
connection for her PTSD claim. The Board found that the issuance of July 2003 and September
2003 documents, followed by "every opportunity to submit evidence and argument in support of her
claims and to respond to VA notices," rendered harmless any timing error. Record (R.) at 5.
Because the appellant did not challenge the disability rating assigned, the effective date element is
the only unresolved matter as to which VCAA notice pertained after the grant of service connection.
See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1345-46 (Fed. Cir. 2003)
(section 5103(a) "applies only when a claim cannot be granted in the absence of additional
information described in the notice").
"[T]he Court reviews the Board's determination that a notification communication satisfies
VA's section 5103(a) duty-to-notify requirements under the 'clearly erroneous' standard of review."
Prickett v. Nicholson, 20 Vet.App. 370, 378 (2006). '"A finding is "clearly erroneous" when
although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been committed."' Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
The Board found that "VA has satisfied its obligations to notify and assist the claimant in this
case." R. at 5. The Board stated that the July 2003 SOC and the September 2003 VCAA letter
"notified the veteran of the evidence needed to substantiate her claims and offered to assist her in
obtaining any relevant evidence." R. at 4. While conceding that the notice did not satisfy the
requirements of Pelegrini, supra, the Board took the position that the appellant had been given every
opportunity to submit evidence, including testimony at a hearing, and that, therefore, "all due process
concerns have been satisfied." Id. The Board found that "any defect with respect to the timing of
the VCAA notice requirement was harmless error." R. at 5.
In any view of the matter, however, VA's attempts at notification were inadequate to satisfy
the requirements of the VCAA with respect to the effective date, or any other element of the PTSD.9
claim. The July 2003 notification of decision was not a document intended to address any notice
requirements of the VCAA, and did not address any evidentiary requirements to establish an earlier
effective date. See Vazquez-Flores, supra. The September 2003 letter was in no way directed to the
PTSD claim, but instead was directed to the claims for a permanent and total disability rating and
dependents' educational assistance. Contrary to the Board's conclusion, the September 2003 letter
concerning these claims cannot provide VCAA-compliant notice with respect to the effective date
of the PTSD claim. This letter neither considered nor discussed evidentiary requirements about the
disputed effective date.
The text of 38 U.S.C. § 5103(a) discusses notice for claims contained within a particular
application. Notice that may be adequate as to one set of claims may not be extrapolated to satisfy
VCAA notice requirements for claims contained in another application or not addressed in the notice
documents under review. We hold that the evidentiary requirements for each claim under VA
consideration must be addressed in a notice document directed, at least in part, to that claim. We
therefore conclude that the Board erred in its conclusion that there was VCAA-compliant notice
concerning the effective date of the substantiated PTSD claim.
B. Analysis of Prejudice
Consequently, we must consider the treatment of the VCAA notice error in view of the fact
that the PTSD claim has been substantiated. Under Sanders, supra, any VCAA notice error is
presumptively prejudicial, and VA has the burden of rebutting that presumption. Under Dunlap,
supra, however, once a claim has been substantiated, the appellant must demonstrate how the
notification error affected the essential fairness of the adjudication. Only then would the Secretary
have the burden of demonstrating that no prejudice resulted.
The issue of first impression, which we now consider, is whether the standard set forth in
Dunlap, supra, survives the Federal Circuit's decision in Sanders, supra. In other words, when the
appellant's claim has been substantiated, must the appellant demonstrate how a VCAA notice error
has adversely affected the essential fairness of the adjudication?
1. Assignment of Burden
The Secretary argues that it is appropriate to require the appellant to show prejudice from a
VCAA notice error after service connection has been granted. He asserts that the notice provisions.10
of 38 U.S.C. § 5103(a) do not apply in cases where an appellant challenges an effective date
determination in an NOD after a grant of service connection. Distinguishing Sanders and Simmons,
both supra, the Secretary asserts that both of those cases involved denials of reopened claims and
consequently neither case addressed prejudice from a VCAA notice error pertaining to a
"downstream" issue after a claim had been substantiated. See Evans v. West, 12 Vet.App. 396, 399
(1999) (effective date is a "downstream matter" to be addressed after the benefit has been awarded).
The Court agrees with the Secretary that the factual scenario presented in the instant case and
in our Dunlap decision are distinguishable from Sanders and Simmons, both supra, and do not
involve the same concerns voiced by the Federal Circuit in either of those decisions. In Sanders, the
Federal Circuit noted that this Court erred "by not giving sufficient weight to the importance of
claimant participation to the VA's uniquely pro-claimant benefits system." Sanders, 487 F.3d at 889
(citing Mayfield I, 19 Vet.App. at 120-21). The Federal Circuit focused on Congress's intent that
the VA adjudication system provide a claimant "a meaningful opportunity to participate effectively
in the processing of his or her claim." Id. In Dunlap, we engaged in a thorough analysis regarding
the importance of claimant participation in the adjudication process. See 21 Vet.App. at 119-20.
Nonetheless, we concluded that "once a claim has been proven–triggering VA to award service
connection, and assign a disability rating and an effective date–the claim has been substantiated and
the claimant has been provided a meaningful opportunity to participate effectively in the processing
of his or her claim." Id. at 120. This conclusion is consistent with this Court's holding in Dingess.
See Dingess, 19 Vet.App. at 484, aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.
2007).
In Sanders, the Federal Circuit also found that this Court was erroneously "parsing the
various elements of the notice required by [section] 5103(a) and finding certain elements of the
required notice more substantial than others." 487 F.3d at 889. In Dunlap, however, we did not treat
the various notice elements differently with regard to assigning the burden of proving prejudice.
Rather, we addressed the question of whether, in the context of a first-element notice error, in a case
in which the claim for benefits had been granted, an appellant bore the burden of demonstrating
prejudice by VA's failure to give general notice as to disability rating and effective date. We
concluded that "if a claimant disagrees as to the initial VA determination, other statutory and.11
regulatory provisions, particularly 38 U.S.C. §§ 5104(a), 7105(d)(1), and 5103A, are in place
requiring VA to assist and advise a claimant throughout the remainder of the adjudication process."
Dunlap, 21 Vet.App. at 119. This conclusion is consistent with recent Federal Circuit caselaw. See
Wilson, 506 F.3d at 1061 (acknowledging that there are "many statutory and regulatory provisions
that do apply to VA's actions after an initial RO decision, and that provide the claimant with notice
as to why his claim was rejected and an opportunity to submit additional relevant evidence").
Based on the foregoing, the Court is satisfied that Dunlap was neither explicitly nor
implicitly overruled by Sanders or Simmons. The holding in Dunlap is consistent with Federal
Circuit precedent and remains undisturbed. There is no indication that the Federal Circuit intended
that either the presumption of prejudice or the Secretary's burden of rebutting it survives the grant
of service connection. Rather, filing an NOD begins the appellate process, and any remaining
concerns regarding evidence necessary to establish a more favorable decision with respect to
downstream elements are appropriately addressed under the notice provisions of 38 U.S.C. §§ 5104
and 7105. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). We therefore continue to hold
that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the
burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream
elements. See Dunlap, 21 Vet.App. at 119.
The Court additionally notes the logic of placing the burden of demonstrating prejudice with
the claimant when the issue involves the downstream element of effective date. Generally, the
assignment of an effective date is controlled by 38 U.S.C. § 5110(a), which provides: "[T]he
effective date of an award based on an original claim, a claim reopened after final adjudication, or
a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall
be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of
application therefor." 38 U.S.C. § 5110(a). In the absence of an argument that an exception applies,
the effective date will be no earlier than the date of the claim. But see 38 U.S.C. § 5110(b)(2). In
this case, for example, appellant Goodwin makes no argument that there is any evidence that could
have been submitted to VA that had not already been considered by the RO and the Board. Instead,
her argument that § 3.156(c) applies in the instant case is premised on evidence already before VA.
She does not assert that she would have submitted additional evidence had she been properly.12
notified. Rather, she merely asserts that the absence of VCAA notice of the possible effect §
3.156(c) might have on her effective date is prejudicial. Contrary to the appellant's assertions,
however, the Court is not persuaded that the presumption of prejudice should be applied in this or
in other cases where a claim has been substantiated and the asserted VCAA notice error pertains to
a downstream element.
We note that this is not a case in which the claimant's initial application raised an effective-date
issue requiring more specific discussion of evidentiary requirements pertaining to that element
in the VCAA notice. When the appellant submitted the medical information that eventuated in the
RO reopening her claim for PTSD, she described her symptoms and experiences at length, but
advanced no particular issue with respect to an effective date. Therefore, had VA issued a VCAA-compliant
notice, it would have addressed only the minimal information concerning effective date.
See Dingess, 19 Vet.App. at 486, 488. Consequently, the only prejudice the appellant can show
would have had to result from the lack of this minimal notice. We continue to reserve for another
day "the question of what would result if a claimant reasonably raised an issue regarding disability
rating and effective date in [the] initial application for benefits rather than for the first time as part
of a notice of disagreement with a decision." Id. at 489.
2. Appellant's Allegations of Prejudice
In an NOD dated July 7, 2003, the appellant's counsel during administrative proceedings
argued that the effective date should be 1991. Essentially, counsel attacked the evaluation of
evidence during the 1992 and 1999 rating decisions, which had become final. She argued that the
record contained evidence of possible PTSD that VA should have developed in those cases. The
appellant's counsel reiterated this line of argument at length in a letter dated December 15, 2004.
This was the sole argument raised to the Board as to an earlier effective date.
Before this Court, the appellant's present counsel argues that there is an unadjudicated claim
pending from 1991. Citing Myers v. Principi, 16 Vet.App. 228 (2002), and McGrath v. Gober,
14 Vet.App. 28 (2000), he contends that this pending claim could be developed with a "retrospective
medical opinion." Appellant's Brief (App. Br.) at 14. The appellant should have been notified that
such evidence would be required to substantiate her claim, he reasons, and this omission constitutes
prejudice arising from the inadequate VCAA notice..13
This reasoning fails for at least two reasons. First, there is no pending unadjudicated claim.
Unlike Myers and McGrath, the record in this case contains neither an undeveloped claim nor an
NOD to which VA never responded. Assuming arguendo that there was evidence suggesting a claim
for PTSD, this evidence might have raised a valid issue on appeal of the 1992 or 1999 rating
decisions if there had been an appeal. Instead, the appellant allowed these decisions to become final.
See Deshotel v. Nicholson, 457 F.3d 1258, 1262 (2006) (argument that RO failed to address all
claims presented in previous rating decision is properly brought as request for revision on the basis
of CUE); Ingram v. Nicholson, 21 Vet.App. 232, 243 (2007) (holding that "a reasonably raised claim
remains pending until there is either a recognition of the substance of the claim in an RO decision
from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a
subsequent 'claim' for the same disability"). Second, it is clear that VA has no obligation under the
VCAA to discuss every legal theory that might support an earlier effective date. While VCAA-compliant
notice must address the downstream elements of disability ratings and effective dates, as
noted, "[r]equiring VA to provide notice on all potential disability ratings that can be awarded,
effective dates that may be assigned, or other claims that may be filed, where dispute on those issues
is not reasonably raised in the veteran's application, is inconsistent with the plain language and
history of the [VCAA] statute." Dingess, 19 Vet.App. at 487 (emphasis added).
Appellate counsel further argues, both in the original brief and in the brief accompanying the
reconsideration motion, that VA reopened the appellant's case on the basis of previously missing
service records. Counsel reasons that VA erred in not advising her that she might obtain an earlier
effective date by operation of 38 C.F.R. §§ 3.156(c) and 3.400(q)(2).
This argument misperceives both the purpose of the VCAA notice procedures and the type
of prejudice contemplated by the case law thereunder. The VCAA notice procedures are primarily
intended to notify a claimant of the type of evidence needed to substantiate the claim, and not of
every regulatory and statutory provision that might bear on the adjudication of that claim. See
Sanders, 487 F.3d at 886 ("The purpose of § 5103(a) notification 'is to ensure that the claimant's case
is presented to the initial decisionmaker 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 [the] claim."). Whatever merit there might be in.14
her "missing service records" argument, it has nothing to do with obtaining further evidence through
the VCAA notification process. We conclude that the appellant has demonstrated no prejudice from
the VCAA notice error, particularly no prejudice from any notice to which she would have been
entitled on the basis of her application to reopen.
As a logical extension of Wilson, Dingess, and Locklear, all supra, we hold that VA has no obligation under the VCAA notification procedures to discuss regulations or legal theories not implicated by a liberal and reasonable reading of a claimant's application. Here, 38 C.F.R.
§ 3.156(c) is not implicated by a liberal and reasonable reading of the appellant's application.

C. Missing Service Records
As discussed above, appellant's argument that she is entitled to an earlier effective date on
the basis of missing service records does not establish prejudice from lack of VCAA notice. That holding, however, does not necessarily end the analysis. See Robinson v. Mansfield, 21 Vet.App. 545, 552 (2008) (Board is required to consider all issues raised either by the claimant or by the evidence of record). What remains is whether, apart from VCAA issues, this case is affected by 38 C.F.R. § 3.156(c). Pursuant to that provision, if, after it has issued a decision on a claim for benefits, VA receives additional service department records that "existed and had not been associated with the claims file when VA first decided the claim," VA will reconsider the claim. 38 C.F.R. § 3.156(c)(3).
The appellant argues that "the original grant of service connection for PTSD was based upon
newly considered service records," and that she is therefore entitled to an earlier effective date
pursuant to § 3.156(c). App. Br. at 14. The appellant never raised this issue to the Board. Instead,
her arguments below centered on VA's alleged failure to provide a PTSD examination during her original 1991 claim. See R. at 416, 440-42. Moreover, this issue was not "reasonably raised" by the evidence of record. See Floyd v. Brown, 9 Vet.App. 88, 96 (1996) (Board is required to address all issues "reasonably raised from a liberal reading of the documents or oral testimony submitted prior
to the [Board] decision"). There is no indication that VA's decision to grant service connection was based, in whole or in part, on previously unobtained service personnel or medical records.
The Court has discretion to evaluate an argument first raised on appeal or to remand an issue
to the Board for further consideration. See Maggitt v. West, 202 F.3d 1370, 1377 (Fed. Cir. 2000).

.15

The mere assertion of a new theory on appeal, however, does not automatically warrant either this Court's consideration or a remand in the absence of error. See Robinson, 21 Vet.App. at 558 (holding that "[i]n the absence of error or a justification for not raising the issue earlier," it would be unfair to afford the appellant "special treatment," and the Court will not remand his claim). In this instance, the record contains no support for the appellant's current contention that the decision below was based on newly discovered service records. This argument, offered under the guise of the appellant's allegations of prejudice, does not warrant remand.
IV. CONCLUSION
Upon consideration of the foregoing, the February 18, 2005, Board decision is AFFIRMED.