Wednesday, April 15, 2009

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).
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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.

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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.

3.156, new and material, reconsider claim, 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.

Board must address all potentially applicable provisions of law and regulation, 38 U.S.C. 7104(a); Weaver v. Principi

When rendering a decision, the Board is required to consider all evidence of record and to address in its decision all potentially applicable provisions of law and regulation. See 38 U.S.C. _ 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order ).

Changes to 3.156, new and material, September 2006

On 6 September 2006, the VA published a final rule, effective 6 October 2006, to amend rules regarding reconsideration of decisions on claims for benefits based on newly discovered service records received after the initial decision on a claim in order to provide consistency in adjudication of certain types of claims. Changes:
· In §3.156, added paragraphs headings to paragraphs (a) and (b), and revised paragraph (c); and
· In §3.400, revised paragraph (q).
+++
§3.156 New and material evidence.

(a) General. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. (Authority: 38 U.S.C. 501, 5103A(f), 5108)

(b) Pending claim. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of §20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. (Authority: 38 U.S.C. 501(a))

(c) Service department records.

(1) Notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official 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, notwithstanding paragraph (a) of this section. Such records include, but are not limited to:

(i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of this section are met;

(ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and

(iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim.

(2) Paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.

(3) An award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim. (Authority: 38 U.S.C. 501(a))

+++
(q) New and material evidence (§3.156) other than service department records.

(1) Received within appeal period or prior to appellate decision. The effective date will be as though the former decision had not been rendered. See §§20.1103, 20.1104 and 20.1304(b)(1) of this chapter.

(2) Received after final disallowance. Date of receipt of new claim or date entitlement arose, whichever is later.

Regulation changes and Karnas v. Derwinski, 1 Vet.App. 308, 313(1991)

The Veterans Court has held that "where the law or regulation changes after a claim has been filed but before the . . . judicial appeal process has been concluded, the version mo[re] favorable to the appellant should and we so hold will apply unless Congress provided otherwise or permitted the [Secretary] to do otherwise and the Secretary did so." Karnas v. Derwinski, 1 Vet.App. 308, 313(1991). The Veterans Court notes that Karnas was overruled by the United States Court of Appeals for the Federal Circuit in Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003), "to the extent [that it] conflict[s] with the Supreme Court's and our binding authority." However, the holding of Kuzma was directed at the retroactive application of statutes and left open the question of Karnas' continuing validity as to regulation changes. However, the Court need not address the current validity of Karnas as applied to regulations, for the Secretary has explicitly limited application of the revised _ 3.156(a) to only those claims to reopen that were filed after August 29, 2001. 66 Fed. Reg. 45,620, 45,629 (Aug. 29, 2001); see also Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1349-53 (Fed.Cir. 2003)

"new" and "material" claims require specific VCAA notification, Kent v. Nicholson, No. 04-181 (Decided March 31, 2006)

"new" and "material" claims require specific VCAA notification, Kent v. Nicholson, No. 04-181 (Decided March 31, 2006)

Tags: new and material evidence; VCAA; Specific VCAA notice; 38 U.S.C. 5108; 7104(b)(1);

===============================================
VCAA & Material Evidence Notification

"The April 2001 letter does not inform the appellant what would
constitute "material" evidence to reopen the psychogenic disorder claim.
Under 38 U.S.C. 5103(a), VA was required to notify the appellant of what constituted "material" evidence in the context of his particular claim to reopen."

The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented.
===============================================

section 5103(a) and 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholdson, __Vet.App.__, No.01-1917 (Mar. 3, 2006); see also Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (stating that a service-connection claim that provides for disability-compensation benefits consists of the following five elements: "(1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability"); Fenderson v. West, 12 Vet.App. 119, 125 (1999) (stating same).
===============================================



UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
04-181

Benjamin F. Kent, Appellant,
v.
R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans' Appeals

(Decided March 31, 2006)
No.

Sean A. Ravin, of Washington, D.C., was on the brief for the
appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant
General Counsel; Richard Mayerick, Deputy Assistant General Counsel; and Barbara J. Finsness, all of Washington, D.C., were on the brief for the appellee.

Before HAGEL, LANCE, and SCHOELEN, Judges.

SCHOELEN, Judge: The appellant, Benjamin F. Kent, through counsel, appeals an October 8, 2003, Board of Veterans' Appeals (Board or BVA) decision that determined that he had not presented new and material evidence to reopen his previously and finally denied claims for service connection for psychogenic gastrointestinal reaction and psoriasis. Record (R.) at 1-13. The appellant and the Secretary each filed a brief.
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. 7252(a) and 7266. For the reasons that follow, the Court will vacate the October 8, 2003, Board decision and remand the matters for further proceedings consistent with this opinion.

I. BACKGROUND

The appellant served on active duty in the U.S. Marine Corps from
September 16, 1950, to January 20, 1951, when he received a medical discharge as a result of a disability. R. at 17. The report from his entrance medical examination reflects no mental or physical abnormalities. Id. On October 30, 1950, he visited sick bay with complaints of stomach pain and vomiting of blood. R. at 21. At that time, he reported that three years before he entered service he had had an "ulcer" with pain, nausea, and vomiting of blood. R at 21. He stated that he was treated by his midwife-grandmother. R. at 22. He reported that he had done well on a diet of soft food, and had experienced no further symptoms until four days prior to his visit to sick bay. R. at 21. He was diagnosed with acute gastroenteritis, and he was transferred to a naval hospital for treatment.Id. After a series of medical tests were performed, the appellant was diagnosed with "hematemesis, cause unknown." R. at 23-24. In December 1950, after a second hospitalization for the same symptoms, the medical diagnosis was changed to "psychogenic gastrointestinal reaction." R. at 25, 33. The appellant was also diagnosed as having "symmetrical acne" on his face and back. R. at 28. In January 1951, the Board of Medical Survey determined that the appellant was not medically fit for duty because of his psychogenic gastrointestinal reaction, and that the disability preexisted service and was not aggravated by service. R. at 33.
In February 1951, the appellant filed a claim for disability
compensation for an "ulcerated stomach." R. at 36-39. On April 24, 1951, a VA regional office (RO) denied the claim (as a claim for psychogenic gastrointestinal reaction). R. at 44. The RO gave the following reasons for its denial:
Five weeks after induction into service, claimant was examined
and found to have psychogenic gastro-intestinal reaction. In
view of the short term of service, the nature and extent of the
condition when discovered, the failure of the records to
reflect permanent increase in severity due to injury, disease,
pathological changes, emotional stress, strain, or other
adverse influences peculiar to service [sic] is rebutted by
clear and unmistakable evidence of record, including
established and accepted medical principles. R. at 44. The appellant did not appeal that decision. In 1958, he
attempted unsuccessfully to reopen his claim. R. at 52-60.
In May 1996, he filed a claim for disability compensation for malaria, psoriasis, ulcers, and anxiety. R. at 62. Postservice medical treatment records, obtained in connection with the claim, revealed that the appellant had been treated for skin conditions that were diagnosed, inter alia, as seborrheic lesions, psoriasis, actinic keratosis, and acne rosacea. R. at 67, 326, 397-99, 404-05, 412, 415-18, 424-28, 430. In a
July 1996 decision, the RO denied entitlement to service connection for
psoriasis on the basis that the appellant's service medical records were negative for any treatment, findings, or diagnosis of psoriasis. R. at 68-69. The appellant's claim for service connection for ulcers was denied because the RO determined that the service medical records (SMRs) were negative for "any definite diagnosis of a chronic gastrointestinal disability during service or within the one[-]year presumptive period." R. at 68. The RO also determined that the appellant had not submitted new and material evidence to reopen his claim for service connection for psychogenic gastrointestinal reaction. R. at 67. In December 1997, the
appellant filed a Notice of Disagreement that was untimely because it was
not filed within the one-year appeal period. R. at 74.
The appellant attempted to reopen the service-connection claims for psoriasis and psychogenic gastrointestinal reaction in July 1999. R. at 95. In support of his claims, he submitted copies of his service medical records. R. at 97. On August 4, 1999, the RO determined that no new and material evidence had been submitted. Id.
On March 16, 2000, the appellant submitted evidence from private
physicians indicating that he was being treated for gastroesophageal reflux disease and psoriasis. R. at 104-08. In April 2000, the RO determined that the appellant had not submitted new and material evidence to reopen his claims for service connection for psoriasis and psychogenic gastrointestinal reaction. R. at 110-12. The appellant appealed that decision to the Board. R. at 126. In April 2001, the RO sent the appellant a letter to advise him of the Veterans Claims Assistance Act. R. at 143. The April 2001 letter advised the appellant that in order to "
establish entitlement for service[-]connected compensation benefits," the evidence must show an injury or disease that began in or was made worse during military service, a current physical or mental disability, and a relationship between the appellant's current medical disability and an injury, disease, or event in service. Id. The April 2001 letter did not advise the appellant that he needed new and material evidence to reopen his claims. On October 8, 2003, in the decision here on appeal, the Board
concluded that the appellant had not submitted new and material evidence to reopen his claims for service connection for psoriasis and gastrointestinal psychogenic reaction. R. at 1-13.
In his brief, the appellant asserts that the Board did not provide
an adequate statement of reasons or bases for its decision because it failed to consider and discuss whether recent changes in the
interpretation of law pertaining to the presumption of soundness entitled him to a de novo readjudication of his claim for service connection for psychogenic gastrointestinal reaction. Appellant's Brief (Br.) at 6-10.
Alternatively, he argues that changes in the interpretation of the law surrounding the presumption of soundness constituted new and material evidence to reopen his claim for psychogenic gastrointestinal reaction. Id. at 10-11. He also argues that VA violated 38 U.S.C. 5103(a) when it failed to give him adequate notice of the information or evidence necessary to substantiate his claims. Id. at 11-14. The appellant asks the Court to vacate the Board decision and remand the matter. Id. at 14.
In his brief, the Secretary argues that there was a plausible basis
for the Board's finding that there was no new and material evidence to reopen the appellant's service-connection claims, that the Board provided an adequate statement of reasons or bases for its decision, and that VA complied with its duty to notify pursuant to 38 U.S.C. 5103(a).
Secretary's Brief (Br.) at 8-15. He asks that the Court affirm the
Board's decision. Id. at 21-22.

II. ANALYSIS
A. Readjudication of a Final Claim Pursuant to 38 U.S.C. 5110(g)
Once a claim has been finally decided and disallowed, it may not be reopened in the absence of new and material evidence. 38 U.S.C. 5108; 7104(b)(1). The appellant, citing to Spencer v. Brown, 4 Vet.App. 283 (
1993), aff'd, 17 F.3d 368 (Fed. Cir. 1994), argues that because of "
changes in the interpretation of law" surrounding the presumption of sound condition came about after the RO in April 1951 denied his claim for service connection for psychogenic gastrointestinal reaction in 1951, " the Secretary is required to conduct a de novo review of the previously denied claim" irrespective of whether the appellant has submitted new and material evidence to reopen his claim. Appellant's Br. at 7.
In Spencer, the Court recognized that when there has been an
intervening liberalization of law that creates a new basis of entitlement to a benefit, an otherwise previously and finally denied claim may be readjudicated de novo on the same factual basis as the previously denied claim. Spencer, 4 Vet.App. at 288. The authority for such readjudication is 38 U.S.C. 5110(g) and its implementing regulation, 38 C.F.R 3.114 (2005). Section 5110(g) provides that "where compensation . . . is awarded or increased pursuant to any Act or administrative issue, the effective date of such award shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the Act or
administrative issue." This statutory provision presupposes the right to a de novo adjudication of a previously and finally denied claim because of an intervening change in law that creates a new basis of entitlement to a benefit. Spencer, 4 Vet.App. at 288.
Harmonizing the provisions of section 5110(g) and the prohibition in section 7104(b) against reopening a finally denied claim in the absence of new and material evidence, the Court in Spencer found that when a "provision of law or regulation creates a new basis of entitlement to benefits, an applicant's claim of entitlement under such law or regulation is a claim separate and distinct from a claim previously and finally denied prior to the liberalizing law or regulation." Spencer, 4 Vet.App. at 289. In such a case, there is no attempt to reopen the finally denied claim; rather, a different claim is presented for adjudication. Id.
The appellant points to two "changes in the interpretation of law"
that, he argues, triggered de novo adjudication of his claim for service connection for psychogenic gastrointestinal reaction. First, he argues that the Court's holding in Crowe v. Brown, 7 Vet.App. 238, 245 (1994), constitutes a change in intervening law. The appellant's argument fails because Crowe does not represent a change in law. Indeed, there has been no intervening change in law since his claim was denied in 1951. In Crowe, the Court held that the presumption of sound condition attaches to a disability unless the condition is detected at the time of a veteran's entrance examination. The Court's holding in Crowe is essentially a
literal application of the plain meaning of the clear and unambiguous statutory language, which has been in effect, without substantive change,
for more than 60 years. More specifically, since 1943, the express
statutory language of section 1111 has provided that a veteran is presumed
to be in sound condition except as to preexisting conditions that are
noted upon entry into service. See 38 U.S.C. 1111 ("[E]very veteran
shall be taken to have been in sound condition when examined, accepted,
and enrolled for service, except as to defects, infirmities, or disorders
noted at the time of the examination, acceptance, and enrollment
. . . . "); see also Pub. L. No. 78-144 9(b), 57 Stat. 554-560 (1943) (
codified as 38 U.S.C. app. ch. 12); Wagner v. Principi, 370 F.3d 1089,
1094-96 (Fed. Cir. 2004) (discussing legislative history of 38 U.S.C.
1111); Jordan v. Principi, 17 Vet.App. 261, 276-77 (2003) (Steinberg, J., separate views) (discussing same), aff'd sub. nom Jordan v. Nicholson, 401 F.3d 1296 (Fed. Cir. 2005); Cotant v. Principi, 17 Vet.App. 116, 123-26 (2003) (discussing same). In short, the law as it currently exists was in effect at the time that the RO denied the appellant's service-connection claim in 1951.
Furthermore, there is no indication that when the RO denied the
appellant's claim in 1951 it did so on the basis that he was not entitled to the presumption of soundness. Indeed, it appears that the RO concluded that the presumption of soundness was rebutted by clear and unmistakable
evidence that the appellant's psychogenic gastrointestinal reaction
preexisted service and was not aggravated by service.
The second alleged intervening change in law is the 2004 holding of
the United States Court of Appeals for the Federal Circuit (Federal
Circuit) in Wagner, supra. In Wagner, the Federal Circuit held that to
overcome the presumption of soundness for wartime veterans under 38 U.S.C
. 1111, VA must show clear and unmistakable evidence of both a
preexisting condition and a lack of in-service aggravation. Wagner,
supra; see also VA Gen. Coun. Prec. 3-2003 (July 16, 2003). Prior to the Court's holding in Wagner, VA was required to show only clear and unmistakable evidence of a preexisting condition to overcome the presumption of soundness. See Crowe, 7 Vet.App at 245; 38 C.F.R. 3.304(b)(2004); cf. Presumption of Sound Condition: Aggravation of a Disability by Active Service, 70 Fed. Reg. 23,027, 23,029 (May 4, 2005) (amending 3.304(b) to conform to Wagner holding). Thus, the effect of the Federal Circuit's decision in Wagner was to increase VA's burden to rebut the presumption of soundness for wartime veterans.
It is clear that the Federal Circuit's holding in Wagner represents a
change in interpretation of law. However, the Court does not agree that this constitutes a liberalizing change in law warranting a de novo
adjudication of the appellant's claim for service connection for a
psychogenic gastrointestinal disorder. A change in law that is merely
procedural does not create new rights to VA benefits. See Spencer, 4 Vet.
App. at 289. In Routen v. West, 142 F.3d 1434, 1439-41 (Fed. Cir. 1988), the Federal Circuit held that a change in the law that raised the evidentiary burden required of VA to rebut the statutory presumption of aggravation available to peacetime veterans from "competent" evidence to " clear and unmistakable" evidence was procedural, and not substantive in nature. Id. The Federal Circuit stated that the change in the evidentiary standard did not create a new cause of action since no new basis of entitlement to the underlying VA benefit was created. Id. At 1442.
Here, as in Routen, the change in law brought about by the Federal
Circuit's opinion in Wagner is procedural, and not substantive, in nature.
Hence, the Court concludes that the Federal Circuit's decision in Wagner did not provide a new basis for establishing entitlement to benefits that would warrant adjudicating de novo the appellant's claim for service connection for psychogenic gastrointestinal disorder. In light of this holding, any failure by the Board to discuss the change in law surrounding the presumption of soundness is nonprejudicial because the Court can still
carry out
a proper review. See 38 U.S.C. 7261(b); Mayfield v. Nicholson, 19
Vet.App. 103, 129 (2005) (holding that the Court's review was "not
hindered by any reasons-or-bases deficiency in the Board decision, and a
remand would be of no benefit to [the appellant] and would therefore be
pointless"), appeal docketed, No. 05-7157 (Fed. Cir. June 14, 2005);
Soyini v. Derwinski, 1 Vet.App. 540, 546 (1991) (holding that "
strict adherence" to reasons-or-bases requirement where evidence was "
overwhelmingly" against the claim would unnecessarily impose additional
burdens on the BVA with no benefit flowing to the veteran); see also
Valiao v. Principi, 17 Vet.App. 229, 232 (2003) (holding
that "[w]here the facts averred by a claimant cannot conceivably result in
any disposition of the appeal other than affirmance of the Board decision, the case should not be remanded for development that could not possibly change the outcome of the decision").
B. Misapplication of Law as New and Material Evidence to Reopen a Claim
The appellant does not take issue with the Board's determination
that the evidence submitted since the claim was last disallowed was not new and material evidence. Instead, he argues, in the alternative, that the changes in interpretation of law surrounding the presumption of
soundness constitute new and material evidence to reopen his claim for service connection for psychogenic gastrointestinal reaction. Appellant's Br. at 7. The appellant's argument is without merit. The Federal Circuit held unequivocally in Routen that "misapplication of, or failure to apply, a statutory or regulatory burden-shifting presumption . . . does not constitute 'new and material evidence' for the purpose of reopening a claim under 38 U.S.C. 5108." Routen, 142 F.3d at 1440. Although
presumptions are rules of law for handling evidence, they are not
themselves considered evidence. Id. Accordingly, a change that raises the government's evidentiary burden to rebut the presumption of sound condition may not constitute new and material evidence to reopen a finally decided claim.

C. VA Compliance with Notice Requirements
The appellant argues that VA failed to fulfill its duty to notify
under 38 U.S.C. 5103(a). As amended by the Veterans Claims
Assistance Act (VCAA), 38 U.S.C. 5103(a) requires that VA inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to obtain; and (3) that the claimant is expected to provide. 38 U.S.C. 5103(a). In addition, 38 C.F.R. 3.159(b)(1) (2005) imposes a fourth requirement that VA "request that the claimant provide any evidence in the claimant's possession that pertains to the claim." See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). These are referred to as the "four VCAA notice requirements." See Mayfield, 19 Vet.App. at 122. The provisions of
the VCAA apply to claims to reopen. See Quartuccio v. Principi, 16 Vet.App. 183, 186 (2002). Failure to comply with any of the four VCAA requirements may constitute remandable error. See Pelegrini, 18 Vet.App. at 121-22; Quartuccio, 16 Vet.App. at 188. In addition, a Board failure to provide an adequate statement of reasons or bases as to VCAA compliance may also constitute remandable error. See 38 U.S.C. 7104(a), (d)(1); Charles v.
Principi, 16 Vet.App. 370, 374 (2002).
The appellant bears the burden of identifying, with specificity, how
the notice document(s) are noncompliant with the VCAA notice requirements. See Mayfield, 19 Vet.App. at 111. When reviewing a VA notice letter, the letter is read as a whole for compliance with the VCAA. Mayfield, 19 Vet.App. at 124. In the event that the
Court finds error, it must "take due account of the rule of prejudicial error." 38 U.S.C. 7261(b)(2); see Mayfield, 19 Vet.App. at 112-21 (explaining how the Court "take[s] due account of the rule of prejudicial error" both in general, and in the context of VCAA notice).
Establishing service connection generally requires medical
evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon receipt of an application for a service-connection claim, section 5103(a) and 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholdson, __Vet.App.__, No.01-1917 (Mar. 3, 2006); see also Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (stating that a service-connection claim that provides for disability-compensation benefits consists of the following five elements: "(1) Veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability"); Fenderson v. West, 12 Vet.App. 119, 125 (1999) (stating same).
In this case, we deal with VA's obligation in the context of claims
to reopen previously and finally disallowed claims. In order to
successfully reopen a previously and finally disallowed claim,
the law requires the presentation of a special type of evidence-
evidence that is both new and material. The terms "new" and "material" have specific, technical meanings that are not commonly known to VA claimants. Because these requirements define particular types of evidence, when providing the notice required by the VCAA, it is necessary, in most cases, for VA to inform claimants seeking to reopen a previously and finally disallowed claim of the unique character of evidence that must be presented. This notice obligation does not modify the
requirement that VA must provide a claimant notice of what is required to
substantiate each element of a service-connection claim. In other words,
VA must notify a claimant of the evidence and information that is
necessary to reopen the claim and VA must notify the claimant of the
evidence and information that is necessary to establish his entitlement to
the underlying claim for the benefit sought by the claimant.
VA's obligation to provide a claimant with notice of what constitutes
new and material evidence to reopen a service-connection claim may be
affected by the evidence that was of record at the time that the prior
claim was finally denied. The new-and-material-evidence regulation
that was in effect at the time of the April 2000 RO decision defined "new"
to mean evidence "not previously submitted to agency decisionmakers . . . [
that] is neither cumulative nor redundant." 38 C.F.R. 3.156(a) (1999
). "Material evidence" was defined to mean evidence that "bears directly
and substantially upon the specific matter under consideration" and "is so
significant that it must be considered in order to fairly decide the
merits of the claim." Id. Generally, a claimant is seeking to reopen
a finally denied claim for service connection because there is either no
evidence on one or more of the three Caluza elements to establish service
connection or insufficient evidence on one or more of these elements.
Therefore, material evidence would be (1) evidence on an element where
the claimant initially failed to submit any competent evidence; (2)
evidence on an element where the previously submitted evidence was found
to be insufficient; (3) evidence on an element where the appellant did not
have to submit evidence until a decision of the Secretary determined that
an evidentiary presumption had been rebutted; or some combination or
variation of the above three situations.
The legislative interest underlying the VCAA notice requirement is
the intent of Congress to provide claimants a meaningful opportunity to
participate in the adjudication of claims. See Mayfield, 19 Vet.App. at
120-21 (stating that section 5103a notice requirement "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 . . . that is, to
assist claimants in the development of their claims); Quartuccio, 16 Vet.
App. at 186-87 (noting that the intent of Congress in enacting the VCAA
was to expand the Secretary's duty to notify). To satisfy this intent,
in the context of a claim to reopen a previously denied claim for service
connection, the VCAA requires the Secretary to look at the bases for the
denial in the prior decision and to respond with a notice letter that
describes what evidence would be necessary to substantiate that element or
elements required to establish service connection that were found
insufficient in the previous denial. Therefore, the question of what
constitutes material evidence to reopen a claim for service connection
depends on the basis on which the prior claim was denied. See Evans v.
Brown, 9 Vet.App. 273, 283 (1996) (holding evidence is material if it is
relevant to and probative of an issue that was a specified basis for the
last final disallowance), overruled, in part, on other grounds by Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998); Anglin v. West, 203 F.3d 1343,
1347 (Fed. Cir. 2000) (stating that Hodge left intact the requirement that
the evidence must be relevant to and probative of an issue that was a
specified basis for the last final disallowance). The Secretary
can determine the basis for the denial in the prior decision from the face
of that decision.
The failure to provide notice of what constitutes material evidence
would generally be the type of error that has the natural effect of
producing prejudice because it would constitute a failure to provide a
claimant notice of a key element of what it takes to substantiate a claim
to reopen. See Mayfield, 19 Vet.App. at 122. Without such notice, a
claimant effectively would be deprived of an opportunity to participate in
the adjudication process because he would not know what evidence was
needed to reopen his claim.
While the failure to provide a claimant notice of what co
nstitutes material evidence will almost always be prejudicial, this is
not necessarily the case where VA fails to inform the claimant of the
necessity to submit new evidence. When a claim for service connection was
denied because the evidence (as to one element of the claim) was
insufficient, then it is incumbent upon the Secretary to explain that
resubmitting the previously submitted evidence will not constitute "new"
evidence that will result in reopening the claim. Thus, the Secretary's
failure to notify the claimant of the need to submit "new" evidence would
generally be prejudicial because it would defeat the fundamental purpose
of the notice by failing to inform the claimant of critical information on
an essential requirement needed to reopen the claim. On the other hand,
if the evidence needed to reopen a claim pertains to an element of the
claim for which no evidence has been previously
submitted, then any evidence pertaining to that element will, per se, be
new. Thus, under these circumstances, if VA provides a claimant with
notice of what constitutes material evidence but fails to inform him of
what would constitute new evidence, the failure to inform the claimant of
the "new" requirement is not prejudicial because the notice on materiality
effectively provides the essential information to the claimant regarding
what is needed to substantiate the claim. Therefore, the failure to tell
a claimant who has not submitted any evidence on a Caluza-service-
connection element that the evidence must be new would not defeat the
fundamental purpose of the notice and would not affect the essential
fairness of the proceedings. See Mayfield, 19 Vet.App. at 115.
Here, the Board concluded that the appellant was given adequate
notice under the VCAA with respect to his attempts to reopen both of his
service-connection claims. R. at 4-5. The BVA identified three documents
that it concluded provided the appellant with adequate notice under the
VCAA: 1) An April 2001 letter from the RO to the veteran; 2) a January
2003 Statement of the Case (SOC); and 3) an April 2003 Supplemental
Statement of the Case (SSOC). R. at 4-5. For the reasons discussed below,
the Court finds that the Secretary did not fulfill his notice obligations
with respect to informing the appellant of the evidence and information
that was needed to substantiate his attempts to reopen his claims for
service connection for psychogenic gastrointestinal disorder and psoriasis
. Because the Court finds that the Secretary failed to provide the
appellant adequate notice of what evidence was needed to reopen his
claims, the Court need not decide whether the Secretary fulfilled his
notice obligation with respect to informing the appellant of the
information and evidence that was needed to substantiate his entitlement
to the underlying compensation benefits.

1. Adequacy of VCAA Notice With Regard to Appellant's Attempt to Reopen His Claim for Service Connection for a Psychogenic Disorder

With regard to the appellant's application to reopen his claim for
service connection for psychogenic gastrointestinal disorder, the
appellant argues that the notice provided to him failed to satisfy the
first, second, and third VCAA requirements (regarding the information and
evidence necessary to substantiate the claim and who would be responsible
for obtaining the evidence). Appellant's Br. at 11-13. None of the
documents identified by the BVA satisfied the first requirement of the
VCAA. The April 2001 letter, which purported to advise the appellant of
the evidence or information that he needed to substantiate his claim to
reopen, did not inform him that he needed new and material evidence to
reopen his claim for service connection for his psychogenic
disorder. Moreover, the April 2001 letter did not inform the appellant
what would constitute new and material evidence to reopen the psychogenic
disorder claim.
a. Notice on Material Evidence
The April 2001 letter does not inform the appellant what would
constitute "material" evidence to reopen the psychogenic disorder claim.
Under 38 U.S.C. 5103(a), VA was required to notify the appellant of
what constituted "material" evidence in the context of his particular
claim to reopen. The appellant's underlying claim had been denied
previously on the basis that the appellant's psychogenic disorder was not
incurred in service. The RO concluded that the disorder preexisted
service and was not aggravated by service. In order for the appellant to
substantiate the claim to reopen with evidence that is material, he is
required to submit evidence that indicates that the psychogenic disorder
either (1) did not preexist service and was incurred therein or (2) was
aggravated by service. Consequently, in order to satisfy its obligation
under the VCAA to notify the appellant of any "information[] and . . .
evidence, not previously provided to the Secretary that is necessary to
substantiate the claim" to reopen, the appellant was entitled to notice
that he needed evidence that would reflect either that his psychogenic
disorder (1) did not preexist service and was incurred therein or (2) was
aggravated by service. 38 U.S.C. 5103(a). The April 2001 letter
did not inform the appellant that to substantiate his claim to reopen he
needed evidence that indicated that his psychogenic disorder did not
preexist service and was incurred therein.
Like the April 2001 letter, neither the January 2003 SOC (R. at
474-85), nor the April 2003 SSOC (R. at 491-93), informed the appellant of
the information or evidence needed to substantiate the claim to reopen.
Both the SOC and SSOC discussed the regulatory definition of "new and
material evidence," as amended in 2001. R. at 479-80, 491-92. See Duty
to Assist, 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001) (codified at 38 C.F.
R. 3.156(a)). However, as the BVA correctly noted, this version of
the regulation did not apply to the appellant's claim to reopen since the
claim was filed before August 21, 2000. R. at 7. The Court notes that
the definition of "new and material evidence" was changed by the 2001
amendments. See Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs,
345 F.3d 1334, 1350-51 (Fed. Cir. 2003) (noting that the new regulation
differs from the old regulation in defining "new evidence" as "existing"
evidence and defining "material evidence" as evidence that "must raise a
reasonable possibility of substantiating the claim"). In addition to
discussing the wrong regulatory definition of "new and material evidence,"
the content of the notice provided by the SOC and SSOC was otherwise
insufficient. Both documents informed
the appellant that he had not submitted material evidence to reopen his
psychogenic disorder claim because he had not submitted evidence that his
condition was aggravated in service. R. at 481-82, 492. Like the notice
provided in the April 2001 letter, the notice provided in the SOC and SSOC
was too narrow in scope. Neither the SOC nor the SSOC informed the
appellant that he could substantiate his claim to reopen with
information or evidence that indicated that his psychogenic disorder did
not preexist service and was incurred therein.
b. Notice on New Evidence
In addition to notifying the appellant of what would constitute
material evidence, VA was also obligated to notify him what would
constitute new evidence to reopen the psychogenic gastrointestinal
disorder claim. In this regard, the April 2001 letter is inadequate.
The evidence at the time VA last denied the claim included the appellant's
SMRs, which revealed that he was treated for a condition that was
ultimately diagnosed as psychogenic gastrointestinal disorder (R. at 19-33
). Because this evidence was relevant as to whether the
appellant's psychogenic disorder was either incurred or aggravated in
service, VA should have informed the appellant that he needed to submit
new evidence regarding his psychogenic disorder claim. However, nowhere
in the letter is the appellant informed that evidence would be considered
new only if it had not been submitted previously to VA and was neither "
cumulative nor redundant" of evidence already in the record. 38 C.F.R.
3.156(a).
The SOC and SSOC informed the appellant that new evidence was
required to reopen his claim; however, these documents used the definition
of "new evidence" from the 2001 amendments to 3.156. As noted above,
the amended version of 3.156(a) changed the definition of "new and
material evidence." The SOC and SSOC provided the appellant some notice
that evidence submitted must meet the requirement to be new. Nonetheless,
the SOC and the SSOC contained another significant flaw that compounded
this error and prevented the appellant from effectively and fully
participating in the adjudication of his claim. See Mayfield, supra. In
the latter part of these documents, the appellant was informed that the
evidence he had submitted to reopen his claim satisfied the "new evidence" requirement. R. at 481-82, 483-84, 491-92. Thus, these documents contained information that was incomplete and confusing, thereby rendering the VCAA notice inadequate. See Mayfield, 19 Vet.App. at 125 (stating that confusing notice about what information and evidence had not been previously provided may amount to a notice deficiency); Pelea v. Nicholson, 19 Vet.App. 296 (2005) (noting that incomplete or affirmatively misleading correspondence might discourage a reasonable person from otherwise submitting evidence to substantiate a claim), appeal dismissed, No.06-7019, 2005 U.S. App. LEXIS 28138 (Federal Circuit Dec. 1, 2005).
c. Prejudicial Error
Having found a failure to fulfill VA's section 5103(a) notice
obligations, the Court must take into account the rule of prejudicial
error. Error is prejudicial when it affects a substantial right that the
statutory or regulatory provision involved was designed to protect so that the error affects "the essential fairness" of the adjudication. Mayfield, 19 Vet.App. at 115. Once an appellant demonstrates a VCAA notice error, he has the burden of going forward with a plausible showing of how the essential fairness of the adjudication was affected by the error. Id. at 119. If the appellant makes such a showing, the burden shifts to the Secretary to demonstrate that the error was clearly nonprejudicial, i.e., that the error did not affect the essential fairness of the adjudication. Id. at 120. Even though the appellant has not asserted specifically how he was prejudiced by the VCAA error, the "natural effect" of VA's failure to give notice as to the first requirement produced prejudice because it precluded the appellant from participating effectively in the processing of his claim, "thereby substantially defeat[ing] the very purpose of section 5103(a) notice." Mayfield, 19 Vet.App. at 122. Accordingly, the burden shifted to the Secretary to demonstrate that there was no clear prejudice. The Secretary argues in his brief that any notice errors were not prejudicial because "the outcome was not affected by VA's alleged failure to comply with the 38 U.S.C. 5103(a) notice requirements." Secretary's Br. at
17. This argument was specifically rejected by the Court in Mayfield. See Mayfield, 19 Vet.App. at 115. The Secretary has not filed a supplemental brief, pursuant to In re: 38 U.S.C. 7261(b)(2) and Mayfield v. Nicholson, 19 Vet.App. 103 (2005), Misc. No. 3-05 (June 2, 2005) (en banc order) [hereinafter Mayfield order], which allowed him an
opportunity to meet his burden of establishing that there was clearly not prejudice to the appellant in this case. Because the Secretary failed to meet this burden, the Court finds that the notice error was prejudicial to the appellant. The Court's conclusion that the Secretary failed to
satisfy the first VCAA requirement necessarily subsumes a conclusion that the Secretary also failed to satisfy the second and third VCAA elements (that is who would be responsible for seeking to obtain the information and evidence required by the first notice requirement).


2. Adequacy of VCAA Notice with Regard to Appellant's Attempt to Reopen His Claim for Service Connection for Psoriasis

With regard to the appellant's application to reopen his claim for
service connection for psoriasis, he argues that the notice provided to
him was inadequate under the first, second, and third VCAA requirements.
The appellant's service-connection claim for psoriasis was denied
previously on two bases. First, the regional office determined that "[t]
here is no record of psoriasis showing a chronic disability subject to service connection." R. at 68. In other words, the RO concluded that the appellant had not established service connection under 38 C.F.R. 3.303(b) (2005). This regulation provides two alternative methods of establishing service connection-chronicity and continuity of symptomatology. First, chronicity is established if the appellant can demonstrate (1) the existence of a chronic disease in service and (2) present manifestations of the same disease. See Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Alternatively, continuity of symptomatology may be established if the appellant can demonstrate (1) that a condition was "noted" during service; (2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. See 38 C.F.R. 3.303(b); Savage,10
Vet.App. at 495.
The evidence of record at the time that the RO denied the appellant's claim in 1996 included evidence that the appellant was treated on a single occasion for a skin condition diagnosed as "symmetrical acne" on his face and back. Additionally, the record included postservice medical evidence of treatment for psoriasis. The RO denied service connection under 3.303(b) because it concluded that the SMRs of "symmetrical acne" were
insufficient to prove chronicity of psoriasis in service and that there was insufficient medical evidence to establish a nexus between his current condition and the postservice symptomatology. Essentially, when the RO denied the claim in 1996, it did so on the basis that the appellant had not submitted sufficient evidence to satisfy 3.303(b). Thus, to reopen a claim for a chronic condition based on 3.303(b), the appellant would need new evidence, other than the evidence already of record, to demonstrate that his skin condition in service was chronic and the same as his current skin condition, or the appellant would need additional medical
evidence to establish a nexus between his current disability and the
postservice symptomatology.

In addition, the RO considered direct service connection and
concluded that there was no evidence that the appellant's current
psoriasis was "caused by service." R. at 69. Thus, the RO denied the claim for direct service connection because it concluded that the appellant had failed to submit any nexus evidence linking his current condition to an event, disease, or injury in service. To reopen the claim on a direct service connection basis, the appellant would need medical nexus evidence, which he had not previously submitted to the RO. In light of the two different reasons for denial of the claim and the two different bases for reopening the appellant's claim, to determine whether the notice
complied with the VCAA, we turn to the notice that VA provided the appellant with regard to reopening his psoriasis claim.

a. Notice on Material Evidence
The April 2001 letter advised the appellant that in order to "
establish entitlement for service[-]connected compensation benefits," the evidence must show an injury or disease that began in or was made worse during military service, a current physical or mental disability, and a relationship between the appellant's current medical disability and an injury, disease, or event in service. R. at 143. The letter further explained the importance of medical evidence and suggested that the appellant could send records of the medical treatment he had received dating back to service, lay statements documenting any observable symptoms that had been witnessed since his condition had first been noticed, and medical opinion evidence establishing a relationship between the appellant's current disability and service. R. at 144. Although the
April 2001 letter does not use the statutory language that such evidence would constitute material evidence to reopen the psoriasis claim, the letter's discussion of the evidence required to reopen a claim was sufficiently broad so as to encompass both bases upon which the appellant could reopen his claim. The letter conveyed to the appellant the essence of what would be material evidence in the context of his claim to reopen. See Mayfield, 19 Vet.App. at 126-27 (stating that "a complying [VCAA] notice need not necessarily use the exact language of the regulation so long as that notice properly conveys to a claimant the essence of a regulation").

b. Notice on New Evidence
However, the April 2001 letter did not provide adequate notice
regarding what would constitute new evidence to reopen the psoriasis claim
. VA should have notified the appellant that he needed to submit evidence that was neither "cumulative nor redundant" of the evidence that was previously submitted. While the April 2001 letter indicated what evidence was already in the appellant's file (R. at 144), nothing in the letter indicated how the appellant should consider the evidence already submitted when trying to
determine what further evidence was needed. Although the April 2001 letter provided the appellant notice of the evidence or information that was needed to substantiate the "material" element of a claim to reopen, the notice is insufficient in light of the letter's failure to notify the appellant of what information and evidence was needed to substantiate the "new" element of the claim to reopen. For this reason, the Court holds that the April 2001 letter did not inform the appellant adequately of the information and evidence not of record that is necessary to substantiate the claim to reopen the service-connection claim for psoriasis.
The Board also relied on the January 2003 SOC (R. at 474-85) and
the April 2003 SSOC (R. at 491-93) to conclude that VA had satisfied the notice obligations of the VCAA. These documents do not satisfy VA's duty to notify under the VCAA. Although the SOC and SSOC informed the appellant that new evidence was required to reopen his claim, these documents used the definition of "new evidence" from the 2001 amendments to 3.156. In addition to providing the appellant with the wrong definition of "new evidence," the SOC and SSOC informed the appellant
that the evidence that he had submitted satisfied the "new" requirement. Because these notice documents provided the appellant with information that was incomplete and confusing, the notice was insufficient. Mayfield, supra. Therefore, the Court holds that the appellant was not provided adequate notice of the first VCAA requirement.

The Secretary's failure to satisfy the first VCAA requirement necessarily subsumes a conclusion that he also failed to satisfy the second and third VCAA elements.
c. Prejudicial Error
Having found a failure to fulfill the Secretary's section 5103(a)
notice obligations, the Court must again take into account the rule of prejudicial error. Mayfield, supra. As indicated above, a failure to explain the new-evidence requirement is not generally prejudicial where VA has provided adequate notice as to what would constitute material evidence to reopen the claim and that any material evidence would necessarily be new as well. In this regard, the two different bases upon which the appellant could reopen his claim become important. As to the direct-service-connection basis for reopening the claim, material evidence would be evidence relating to the element, for which he had failed to submit any
competent evidence, i.e., a medical nexus between his current psoriasis and his in-service skin condition. As to this basis for reopening, the
failure to explain the concept of new evidence is not prejudicial because any nexus evidence would necessarily be new evidence.
However, as to reopening of the claim based on 3.303(b), the
failure to explain the importance of new evidence is prejudicial. The 1996 RO decision considered his SMRs and postservice medical evidence and
found that the evidence was insufficient to prove service connection under
3.303(b). Therefore, to reopen a claim on this basis, the appellant
needed new evidence where the evidence had previously been weighed and found wanting. In other words, he needed something other than the previously submitted SMRs and postservice medical evidence to support the proposition that his in-service condition was chronic psoriasis. However, it was not clear from the April 2001 letter that cumulative and redundant evidence-such as the duplicative SMRs submitted by the appellant (R. at 28)-would not be sufficient to reopen the claim. Moreover, when the SOC
and the SSOC provided wrong and confusing information, the "natural effect" of VA's failure to give notice as to the requirement that the appellant submit "new" evidence effectively deprived him of an opportunity to participate in the adjudication process because he was not informed of the new evidence that was needed to reopen his claim. Mayfield, 19 Vet.App. at 122. As with appellant's psychogenic gastrointestinal claim, the Secretary argues that any notice error is harmless in this case because
the outcome would not have been different. Secretary's Br. at 17. The Secretary has chosen not to submit a supplemental brief on this issue pursuant to the Mayfield order. As noted above, this argument was specifically rejected by the Court in Mayfield. See Mayfield, 19 Vet.App. at 115. Thus, the Secretary has not sustained his burden in this case to demonstrate that there was clearly no prejudice to the appellant based on his failure to give notice as to the first VCAA requirement. Hence, a remand is required for notice that adequately explains to the appellant
what evidence he must submit in support of his psoriasis claim. As a claim for service connection includes all theories under which service connection may be granted, see Bingham v. Principi, 18 Vet.App. 470, 474 (2004), the Court notes that this remand does not limit the appellant to pursuing a theory of service connection under 3.303(b) on remand even though the VCAA letter was prejudicially erroneous only as to that theory.

III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs,
and a review of the record, the Board's October 8, 2003, decision is
VACATED and the matters are REMANDED to the Board for further proceedings consistent with this decision.