Veteranclaims’s Blog

October 26, 2010

5 Key Elements of Claim, Vasques-Flores; Goodwin; Dingess

Key Elements of a Claim

“When notice how to substantiate a claim is wholly defective as to a key element needed to substantiate the claim, such that the absence of evidence on the key element will result in denial of the claim, the natural effect is that the claimant is deprived of a meaningful opportunity to participate in the processing of his claim. It is under these circumstances that Mayfield I holds that the Secretary has the burden of demonstrating the notice error was not prejudicial. Mayfield I, 19 Vet.App. at 122;
see also Vazquez-Flores I, 22 Vet.App. at 46 (noting that the extensive post-initial decision
administrative processing provided below, including the identification of the issues in dispute
provided in the SOC and the requirement for the Secretary to provide medical examinations if
needed to properly decide the claim, might demonstrate that a preadjudicatory notice was not
prejudicial).”

Background, this case [Vasquez-Flores] refers to the key elements needed to substantiate a claim, the Court has previously defined those elements, of which there are 5, in Dingess and Goodwin
So what are the key elements of a claim, from Goodwin v. Peake, No. 05-0876 (Decided May 19, 2008 ), [we placed Goodwin below Vasquez-Flores]:
“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.”

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UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 05-0355
ANGEL VAZQUEZ-FLORES, APPELLANT,
V.
E RIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Remand from the U.S. Court of Appeals for the Federal Circuit
(Decided October 22, 2010)
Kathy A. Lieberman, of Washington, D.C., for the appellant.
Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel;
Carolyn F. Washington, Deputy Assistant General Counsel; and Debra L. Bernal, all of Washington,
D.C., were on the brief for the appellee.
Before KASOLD, Chief Judge, and GREENE and HAGEL, Judges.1
KASOLD, Chief Judge, filed the opinion of the Court. HAGEL, Judge, filed an opinion
concurring in the result.
KASOLD, Chief Judge: On January 30, 2008, the Court, in a panel opinion, set aside and
remanded a February 1, 2005, decision of ting greater than 30% for nephrolithiasis,2 and denied disability compensation for
neuropsychiatric disorder because it was not service connected on a direct basis or as secondary to a service-connected renal disability. See Vazquez-Flores v. Shinseki, 22 Vet.App. 37 (2008) (Vazquez-Flores I). Subsequently, in Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (Vazquez-Flores II), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) vacated and remanded that part of the Court’s January 30, 2008, decision that set aside and remanded Mr.

An increased-rating claim is the same as a claim for increased benefits and 3 the terms are used interchangeably
throughout this opinion, as they are throughout the caselaw addressing VA disability compensation.
2

Vazquez-Flores’s increased-rating claim for nephrolithiasis.3 Although this matter was returned for single-judge consideration and was subsequently stayed on May 19, 2010, for the resolution of Simmons v. Shinseki, U.S. Vet. App. No. 03-1731 (set aside and remanded for further proceedings September 28, 2010) (possibly addressing the issue of prejudice), upon further review, the matter is referred again for panel consideration and the stay is hereby lifted. For the reasons set forth below, that part of the Board’s February 1, 2005, decision denying an increased schedular rating for nephrolithiasis will be affirmed. That part of the Board’s decision that denied an extraschedular rating and failed to address entitlement to a total disability rating based upon individual
unemployability (TDIU) will be set aside and the matters remanded for further adjudication.
I. BACKGROUND
A. Facts
Mr. Vazquez-Flores served on active duty in the U.S. Army from July 1963 to July 1965 and
from January 1966 to January 1969. Record (R.) at 26. He was granted service connection for
nephrolithiasis, and in April 1976 his disability rating was increased to 30%. R. at 242, 246.
Additional evidentiary development followed, during which Mr. Vazquez-Flores submitted an April
1979 private mental evaluation report from Dr. Raul Correa Grau that reflects a diagnosis of
moderately severe depressive reaction and April 1979 hospitalization records that reflect a diagnosis
of schizophrenia. R. at 250-52, 274-75. After additional adjudication wherein a VA regional office
(RO) denied his claim for service connection for a psychiatric disorder, Mr. Vazquez-Flores
submitted a June 1982 private psychiatric evaluation report that opined that he had undifferentiated
schizophrenia and that his condition “becomes more prominent when ph[y]sical symptomatology
flares up.” R. at 280. He appealed the RO’s decision to the Board, and in September 1984 the Board,
inter alia, denied service connection for an acquired psychiatric disorder on the basis that it was not
incurred in or aggravated by service. R. at 296-305.
In August 1994, Mr. Vazquez-Flores sought to reopen his previously denied claim. R. at 358.
He also claimed that his “service-connected kidney condition ha[d] increased in severity.” Id.
3
During the development of these claims, Mr. Vazquez-Flores submitted a July 1994 VA medical
report that his nephrolithiasis caused depression. R. at 362. He also submitted a September 1995
letter from his private psychiatrist, Dr. Jose Juarbe, who opined that Mr. Vazquez-Flores’s
“schizophrenic condition started back in 1964,” and that he considered the schizophrenia to be
service connected. R. at 390. In February 1998, Dr. Juarbe testified before the RO that Mr.
Vazquez-Flores had major depression that “without any doubt is related tois physical condition.”
R. at 455. In August 2000, the RO issued to Mr. Vazquez-Flores a Supplemental Stement of the
Case (SSOC) containing the diagnostic code (DC) criteria for nephrolithiasis, hydronephrosis, and
renal dysfunction. R. at 505-14. A November 2002 VA mental disorders examination report
reflected that Mr. Vazquez-Flores had a diagnosis of recurrent, moderate major depressive disorder
that was not related to service and was not precipitated or aggravated by Mr. Vazquez-Flores’s
service-connected renal disability. The VA examiner stated that Mr. Vazquez-Flores “does not
report any subjective complaint, any type of relationship between his renal symptoms and his
psychiatric symptomatology,” and that his clinical history demonstrated no type of relationship
between these conditions. R. at 585.
B. Vazquez-Flores I
1. Neuropsychiatric Disorder
With regard to the denial of disability compensation for Mr. Vazquez-Flores’s
neuropsychiatric disorder, the Court in Vazquez-Flores I found that the Board relied heavily on the
November 2002 VA examiner’s statements that Mr. Vazquez-Flores “does not report any subjective
complaint, any type of relationship between his renal symptoms and his psychiatric
symptomatology,” and that his clinical history demonstrated no type of relationship between these
conditions (R. at 585). The Court concluded that this statement may be read broadly to say that there
is no medical evidence and no complaints of record from Mr. Vazquez-Flores regarding a
relationship between his nephrolithiasis and his psychological condition. Moreover, the Court noted
that at least three reports in the record before the Board appeared to contradict this statement.
Vazquez-Flores I, 22 Vet.App. at 49-50 (noting R. at 280 (June 1982 psychiatric evaluation report
stating that Mr. Vazquez-Flores’s psychiatric condition “becomes more prominent when ph[y]sical
symptomatology flares up”), 362 (July 1994 VA medical record reflecting that Mr. Vazquez-Flores’s
4
complaints of depression were the result of his nephrolithiasis), 455 (February 1998 testimony of Dr.
Juarbe that Mr. Vazquez-Flores’s major depression “without any doubt is related to his physical
condition”)). The Court further noted that it also is possible that the November 2002 examination
report could be read more narrowly to mean that, during that particular examination, Mr. Vazquez-
Flores provided no history or complaint to the examiner.
The Court identified two multifaceted errors in the Board’s statement regarding its reliance
on the November 2002 examination report. First, the Board erred when it failed to recognize and
address the fact that the November 2002 examination report fairly could be read broadly or narrowly,
with differing meanings, and when it failed to either return the examination report to the examiner
for clarification or explain why such action was not necessary. Id.; see also Daves v. Nicholson, 21
Vet.App. 46, 51 (2007) (noting that when a medical examination report was susceptible to multiple
fair but inconsistent meanings, the Board erred in failing to seek clarification); 38 C.F.R. § 4.2
(2007). Second, to the extent the Board relied on the broad interpretation of the November 2002
examination report, it erred in not explaining the discrepancy in the apparently contradictory
information in the record and not explaining why it gave greater weight to the November 2002
examination report than it gave to the contradictory information. Vazquez-Flores I, 22 Vet.App. at
50.
2. Nephrolithiasis
Concerning Mr. Vazquez-Flores’s increased-compensation claim for nephrolithiasis, we held
in Vazquez-Flores I that the preadjudicatory notice required by 38 U.S.C. § 5103(a) to be provided
by the Secretary to claimants seeking increased compensation includes, at a minimum, the following:
notification that to substantiate a claim the claimant should provide or ask the Secretary to obtain
medical or lay evidence demonstrating a worsening or increase in severity of the disability and the
effect that worsening has on the claimant’s employment and daily life. Id. at 43. Further, we held
that if the DC under which the claimant is rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening
or increase in severity of the disability and the effect that worsening has on the claimant’s
employment and daily life (such as a specific measurement or test result), the Secretary must provide
at least general notice of that requirement to the claimant. Id.
The Secretary removed this requirement from 38 C.F.R. § 3.159(b), effective 4 May 30, 2008. See 73 Fed. Reg.
23,353, 23,354 (2008).
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Vazquez-Flores I also held that the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined by applying relevant DCs, which typically
provide for a range in severity of 0% to as much as 100% (depending on the disability involved),
based on the nature of the symptoms of the condition for which disability compensation is being
sought, their severity and duration, and their impact upon employment and daily life. Id. The notice
must also provide examples of the types of medical and lay evidence that the claimant may submit
(or ask the Secretary to obtain) that are relevant to establishing entitlement to increased
compensation-e.g., competent lay statements describing symptoms, medical and hospitalization
records, medical statements, employer statements, job application rejections, and any other evidence
showing an increase in the disability or exceptional circumstances relating to the disability. Id. at
44.
Applying the facts, we held that the Board erred when it relied on notice letters dated April
2001 and December 2003 and a February 2004 SSOC to find adequate preadjudicatory notice.
Specifically, the Court observed that neither of the notice letters provided Mr. Vazquez-Flores the
necessary notice regarding substantiating his claim for a disability rating higher than the 30% rating
currently assigned. The Court also noted that (1) the April 2001 letter focused only on what is
necessary to substantiate a claim for service-connected benefits in the first instance, and provided
no information on how to substantiate an increased rating for an already service-connected disability,
(2) although the December 2003 letter advised Mr. Vazquez-Flores to submit evidence that shows
that his nephrolithiasis has “gotten worse” (R. at 928), it failed to explain that the evidence must
demonstrate the effect of that worsening on his occupational and daily life and failed to provide, at
least in general terms, the criteria beyond the effect of the worsening of the disability upon the
occupational and daily life that is necessary for the award of the higher disability rating for his
condition, and (3) the Board relied on the February 2004 SSOC to find compliance with § 3.159,
which, at the time, required the Secretary to, inter alia, request the claimant to provide any evidence
in his possession that pertains to the claim. Id. at 47; see also 38 C.F.R. § 3.159(b)(1) (2005).4 In
addition, the Court found that the totality of information provided in these documents was confusing
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in that it provided differing versions of what was required to show entitlement to a higher disability
rating. Id. at 48; Kent v. Nicholson, 20 Vet.App. 1, 10 (2006) (noting that incomplete and confusing
information renders section 5103(a) notice inadequate).
Having found that Mr. Vazquez-Flores had not been provided adequate preadjudicatory
notice, the Court then addressed whether such an error was prejudicial. At that time, the Federal
Circuit decision in Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev’d, 129 S. Ct. 1696
(2009), held that all preadjudicatory notice errors were deemed presumptively prejudicial, thus
placing the burden on the Secretary to demonstrate a lack of prejudice. Id. at 890-91. In the context
of having just explained the scope of the preadjudicatory notice required in an increased-rating claim,
the Court rejected the Secretary’s contention that Mr. Vazquez-Flores had actual knowledge of what
was necessary to substantiate an increased rating. And, pursuant to the Court’s duty to examine the
record for prejudice, the Court further found that throughout the extensive administrative appeal Mr.
Vazquez-Flores had not been provided satisfactory notice to substantiate his claim. Vazquez-Flores
I, 22 Vet.App. at 49. Accordingly, the Court reversed the Board’s finding that the Secretary had
provided section 5103(a)-compliant notice. Id. at 48. The Secretary appealed that decision to the
Federal Circuit.
C. Vazquez-Flores II
In Vazquez-Flores II, the Federal Circuit addressed two issues on appeal, to wit: (1) Whether
section 5103(a) requires the Secretary to provide a veteran seeking an increased rating with the
relevant rating criteria under every DC potentially applicable to the veteran’s present disability; and
(2) whether the Secretary must consider the effect of the worsening of a service-connected disability
upon the veteran’s daily life. 580 F.3d at 1275. The Federal Circuit held that reference to DCs is not
required because generic notice in response to a particular type of claim – a claim for an increased
rating – is all that is required under Wilson v. Mansfeld, 506 F.3d 1055, 1062 (Fed. Cir. 2007)
(holding that section 5103(a) requires only generic notice in that it need not identify evidence
specific to the individual claimant’s case) and Paralyzed Veterans of America v. Secretary of
Veterans Affairs, 345 F.3d 1334, 1347-48 (Fed. Cir. 2003) (holding, inter alia, that § 3.159(b)(1)
does not require notice that identifies specific evidence needed to substantiate a particular veteran’s
claim). Id. at 1277. The Federal Circuit also held that the Secretary’s failure to provide notice to
7
increased-rating applicants that they should submit evidence relating to “the effect that worsening
has on the claimant’s . . . daily life” does not constitute a breach of the Secretary’s duty to provide
adequate notice. Id. at 1280. In summary, the Federal Circuit stated:
Notice described in 38 U.S.C. § 5103(a) need not be veteran specific under Wilson
and Paralyzed Veterans. Similarly, while a veteran’s “daily life” evidence might in
some cases lead to evidence of impairment in earning capacity, the statutory scheme
does not require such evidence for proper claim adjudication. Thus, insofar as the
notice described by the Veterans Court in Vazquez-Flores requires the VA to notify
a veteran of alternative diagnostic codes or potential “daily life” evidence, we vacate
the judgments.
Id. at 1280-81.
D. Sanders
Subsequent to Vazquez-Flores I, but before the issuance of Vazquez-Flores II, the Supreme
Court reversed Sanders. Succinctly stated, the Supreme Court concluded that generally notice errors
are not presumptively prejudicial and that the burden of demonstrating error does not shift on appeal
from the losing party to the prevailing party. 129 S. Ct. at 1705. However, the Supreme Court also
noted the expertise of this Court, an appellate court dealing with the adjudication of veterans claims,
and acknowledged the possibility that we might find that certain types of notice errors generally have
the effect of producing prejudice as a factual matter. Id. at 1707 (“[C]ourts may sometimes make
empirically based generalizations about what kinds of errors are likely, as a factual matter, to prove
harmful. . . . It is the Veterans Court . . . that sees sufficient case-specific raw material in veterans’
cases to enable it to make empirically based, nonbinding generalizations about ‘natural effects.'”
(citations omitted)). We now address the contentions of the parties on remand.
II. DISCUSSION
A. Arguments of the Parties
Mr. Vazquez-Flores argues that (1) his claim for disability compensation for a
neuropsychiatric disability was not decided by Vazquez-Flores II and should be remanded, (2) the
finding in Vazquez-Flores I that notice provided to him was inadequate is a factual finding that the
The Mayfield decisions are referred to throughout this opinion as Mayfield I- 5 IV. In Mayfield I, this Court
affirmed the Board’s decision finding, inter alia, that a March 2001 letter satisfied the Secretary’s duty to notify under
38 U.S.C. § 5103(a) as amended by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat.
2096 (“VCAA”). 19 Vet.App. 103 (2005). In Mayfield II, the Federal Circuit reversed and remanded this Court’s
decision because the Board had not relied upon the March 2001 letter to find adequate notice, and this Court should not
have done so in the first instance. 444 F.3d 1328, 1329 (Fed. Cir. 2006). After a limited remand to the Board in which
the Board found that initially inadequate preadjudicatory notice had been cured by subsequent adequate notice and
another decision on the claim rendered in a January 2002 SSOC, this Court affirmed the Board’s decision in Mayfield
III. 20 Vet.App. 537 (2006). The Federal Circuit affirmed in Mayfield IV.
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Federal Circuit did not have jurisdiction to address, (3) Vazquez-Flores II does not specifically reject
the Court’s conclusion in Vazquez-Flores I that section 5103(a) obligates the Secretary to notify the
claimant to submit evidence demonstrating the effect that the worsening of his disorder has on his
employment such that notice provided to him still is inadequate based on the remaining rationale of
Vazquez-Flores I, (4) the Court’s determination in Vazquez-Flores I that notice provided to him was
confusing is undisturbed by Vazquez-Flores II, and (5) it is the Secretary who has the burden to show
that Mr. Vazquez-Flores was not prejudiced by notice errors.
The Secretary agrees with Mr. Vazquez-Flores’s first contention that the Court’s remand of
that part of Mr. Vazquez-Flores’s claim for benefits for neuropsychiatric disability was not on appeal
to the Federal Circuit. Regarding the claim for benefits for nephrolithiasis, the Secretary argues that
(1) the law of the case doctrine and the fact that the Federal Circuit vacated Vazquez-Flores I operate
to void the Court’s holdings pertaining to notice required by section 5103(a) such that the holdings
now must be reconsidered in their entirety, (2) the December 2003 notice letter provided to Mr.
Vazquez-Flores satisfied the “generic notice” requirement described by the Federal Circuit in
Vazquez-Flores II because it advised the appellant of the information or evidence necessary to
substantiate his increased-rating claim, i.e., that his condition has worsened, (3) Mr. Vazquez-
Flores’s claim was readjudicated in a February 2004 SSOC that cured any timing errors in
accordance with Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV),5 (4) the
Court’s holding that the notice provided to Mr. Vazquez-Flores was incomplete and confusing cannot
stand because under Mayfield II, 444 F.3d at 1333-34, the December 2003 notice letter corrected any
confusion created by the April 2001 notice letter, and (5) Mr. Vazquez-Flores failed to show that he
was prejudiced by any purported notice error.
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B. Neuropsychiatric Disability
The parties agree that the Secretary did not appeal to the Federal Circuit that part of Vazquez-
Flores I that set aside that part of the Board’s decision denying disability compensation for
neuropsychiatric disability. See Vazquez-Flores I, 22 Vet.App. at 49-51. Vazquez-Flores II
specifically stated that the questions addressed by its decision pertained to the Court’s reading of
section 5103(a) in the context of increased-rating claims. Accordingly, that portion of Vazquez-
Flores I that set aside that part of the Board’s February 1, 2005, decision denying disability
compensation for neuropsychiatric disability was never appealed and the matter remained remanded,
leaving on appeal only that part of the Board’s decision addressing Mr. Vazquez-Flores’s claim for
increased benefits for nephrolithiasis. It is to that portion that we now turn.
C. Increased Rating for Nephrolithiasis
1. Initial Matters
a. Federal Circuit Jurisdiction
Mr. Vazquez-Flores’s argument that the Federal Circuit was without jurisdiction to decide
whether inadequate notice was provided to him because it is a factual issue is inapposite. Although
he is correct that the Federal Circuit lacks jurisdiction to review factual findings, see 38 U.S.C.
§ 7292(d)(2), it did not do so. Rather, it determined that this Court’s interpretation of section 5103(a)
as it applied to an increased-rating claim was overbroad. Moreover, even if the Federal Circuit erred,
arguments to that effect are fruitless here. We are bound by the decisions of the Federal Circuit. 38
U.S.C. § 7292(e)(1).
b. Law of the Case
Similarly unavailing is the Secretary’s assertion that the law of the case doctrine dictates that
the Court must fully reconsider its findings regarding its interpretation of section 5103(a). The law
of the case “merely requires a trial court to follow the rulings of an appellate court” and “does not
constrain the trial court with respect to issues not actually considered by the appellate court.” Exxon
Corp. v. United States, 931 F.3d 874, 877 (Fed. Cir. 1991) (emphasis in original). To the extent the
doctrine applies to this appellate court, the Federal Circuit’s decision in Vazquez-Flores II only
considered whether section 5103(a) required the Secretary to notify the veteran of alternative DCs
or “daily life” evidence. See Vazquez-Flores II, 580 F.3d at 1281 (“[I]nsofar as the notice described
10
by the Veterans Court in Vazquez-Flores requires the VA to notify a veteran of alternative [DCs] or
potential ‘daily life’ evidence, we vacate the judgments.” (emphasis added)). Accordingly, whether
the decision in Vazquez-Flores I regarding preadjudicatory notice is “reconsidered” now in total or
in part, the rationale provided by Vazquez-Flores I may be used to resolve the arguments on appeal
to the extent that the rationale does not conflict with Vazquez-Flores II or intervening law, or
otherwise remains persuasive. See Exxon Corp., supra.
c. Section 3.159(b) Request To Submit all Pertinent Evidence
Although the Board committed error when it found that a February 2004 SSOC satisfied the
requirement in 38 C.F.R. § 3.159(b) that a claimant be requested to “provide any evidence in the
claimant’s possession that pertains to the claim,” Mayfield II, 444 F.3d at 1333 (“That duty of
affirmative notification is not satisfied by various post-decisional communications from which a
claimant might have been able to infer what evidence the VA found lacking in the claimant’s
presentation.”), Mr. Vazquez-Flores neither contends error in this regard nor indicates that he was
prejudiced by any error. See Mayfield I, 19 Vet.App. at 123 (noting that the appellant failed to carry
her burden of prejudice when she provided responses to the Secretary’s requests for evidence and that
there was no indication that she had pertinent evidence in her possession).
Moreover, the record reveals that Mr. Vazquez-Flores was aware that he should have
submitted evidence in his possession and that he did not possess such evidence. R. at 930 (Mr.
Vazquez-Flores responds by letter to the December 2003 notice letter that “all my [outpatient]
records are at VAH – San Juan, PR” (emphasis in original)), 966 (Mr. Vazquez-Flores responds to
the February 2004 SSOC that he continues outpatient treatment “at VAH- SanJuan” and that he is
severely disabled and getting worse); Mayfield I, 19 Vet.App. at 121-22 (noting that the claimant’s
actual knowledge of an evidentiary requirement is sufficient to demonstrate that a notice defect
omitting such information was not prejudicial and that the failure to provide timely notice of the
fourth element of notice per § 3.159(b)(1) does not have the natural effect of producing prejudice).
Accordingly, our discussion of whether there was adequate preadjudicatory notice will focus
on the notice letters provided to Mr. Vazquez-Flores and relied on by the Board to find adequate
section 5103(a) notice, and not any notice provided in the February 2004 SSOC.
2. Required Notice for Increased-Compensation Claims
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Mr. Vazquez-Flores correctly notes that Vazquez-Flores II does not reject this Court’s holding
that the Secretary is required by section 5103(a) to notify a claimant seeking increased disability
benefits to submit evidence demonstrating the effect that the worsening of his disability has on his
employment. Indeed, Vazquez-Flores II emphasizes the importance of employment evidence.
Vazquez-Flores II instructs that 38 U.S.C. § 1155, which provides the authority to the Secretary to
create disability rating schedules, focuses entirely upon impact in earnings capacity. Vazquez-Flores
II, 580 F.3d at 1279. Vazquez-Flores II notes also that “disability” is defined by 38 C.F.R. § 4.1 to
mean “impairment in earning capacity resulting from such diseases and injuries and their residual
conditions.” Id. at 1280. Moreover, holding that section 5103(a) requires the Secretary to provide
such notice to claimants would not constitute the type of veteran-specific notice that is prohibited
by Wilson because all notice to increased-compensation claimants would be the same. Id. at 1277
(citing Wilson and noting that providing notice as to a veteran’s applicable DCs is veteran specific,
and not required, because notices to increased-compensation claimants would potentially differ); see
also Wilson, 506 F.3d at 1062 (“[N]otice may be generic in the sense 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).”).
Therefore, based on the rationale provided in Vazquez-Flores I and II, section 5103(a)
requires the Secretary, for increased-rating claims, to notify the claimant that to substantiate such a
claim the claimant should provide or ask the Secretary to obtain medical or lay evidence
demonstrating a worsening or increase in severity of the disability and the effect that worsening has
on the claimant’s employment. See Vazquez-Flores II, 580 F.3d at 1279-80; Vazquez-Flores I, 22 Vet.App. at 43.
3. Adequacy of Notice
a. Impact on Employment
As noted in Vazquez-Flores I, supra, none of the documents relied upon by the Board to find that the Secretary provided adequate notice informed Mr. Vazquez-Flores that he should submit evidence demonstrating the effect that worsening of his disability has on his employment. Because this is part of the notice that should be provided in all increased-rating claims, the Secretary fails in his argument that the December 2003 notice letter and subsequent adjudication of the claim cured
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previous notice error and satisfied section 5103(a) because it advised the appellant to submit
evidence that his condition has “worsened.” See Mayfield IV, 499 F.3d at 1323 (noting that timing problems are cured by new notification that complies with VCAA and subsequent readjudication).

b. Confusing Notice
The Secretary correctly notes that initial notice that is inadequate can be cured by subsequent
adequate notice followed by another adjudication of the claim. See Mayfield II, 444 F.3d at 1333-34.
However, even assuming arguendo that in this instance the December 2003 letter provided to Mrs.
Mayfield was complete, the Secretary’s argument that it could not be confusing because such a
holding would conflict with the holding in Mayfield II evinces a misunderstanding of what the law
is and how it is applied. The Secretary fails to recognize that any subsequent notice, although clear
on its face in isolation, nevertheless might be presented in a manner that is confusing based upon the
surrounding circumstances. See Kent, 20 Vet.App. at 12 (noting that the combination of the changed
definition for “new evidence” in § 3.156(a) and statements that erroneously informed the claimant
that he had submitted new evidence, together, rendered the notice confusing); see also Quartuccio
v. Principi, 16 Vet.App. 183, 187 (2002) (considering all relevant communications from the
Secretary when determining whether adequate notice had been provided).
For example, if a claimant is seeking increased benefits for a disability already service
connected and he is provided notice how to substantiate an initial claim for benefits, simply
providing additional notice how to substantiate a claim for increased benefits could very well
confuse the claimant as to which notice is indeed correct. Such confusion might be avoided by
noting, e.g., that the second notice is a corrective notice. Additionally, the potential confusion
generated by differing notices might be clarified or negated by actions taken in the subsequent
processing of the claim, or otherwise ultimately shown by the record not to have confused the
claimant. In sum, simply because subsequent notice, good on its face, is provided to the claimant
does not mean that the notice was adequate. Whether notice is confusing is a fact-specific
determination based on the totality of the circumstances. See Kent and Quartuccio, both supra; see
also Gordon v. Nicholson, 21 Vet.App. 270, 281 (2007) (section 5103(a) notice error is a factual
determination reviewed under the “clearly erroneous” standard).

Mr. Vazquez-Flores is correct that the holding in Vazquez-Flores I rested on alternative
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determinations that the notice provided to him was both incomplete and confusing. And, as he
points out, the Federal Circuit in Vazquez-Flores II did not reject the Court’s determination that the
notice provided to him was confusing, Vazquez-Flores I, 22 Vet.App. at 48 (citing Kent, 20
Vet.App. at 12 (incomplete and confusing information renders section 5103(a) notice inadequate)).
However, this determination in Vazquez-Flores I does not necessarily hold after Vazquez-Flores II
because our observations in Vazquez-Flores I were based on the totality of the notice provided to Mr.
Vazquez-Flores and rendered in the context of the Court’s understanding of the scope of notice
required by section 5103(a), which has been narrowed significantly by the Federal Circuit in
Vazquez-Flores II.
Regardless, in this instance, for purposes of establishing notice error, we need not decide
whether the totality of the preadjudicatory notice provided to Mr. Vazquez-Flores was confusing
because, as already noted, it was incomplete, and therefore inadequate. Accordingly, the Board’s
finding to the contrary is clearly erroneous. Gordon, supra; Padgett v. Nicholson, 19 Vet.App. 133,
147-48 (2005) (“A finding is ‘clearly erroneous’ when although there is evidence to support it, the
reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has
been committed.” (quoting Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990))). Having found error,
however, whether notice was confusing remains relevant in the context of assessing the fairness of
the adjudication. This is discussed below.

4. Prejudice
a. Mayfield I
Once error is found, the Court must determine whether the error is prejudicial. 38 U.S.C.
§ 7261(b)(2) (the Court must “take due account of the rule of prejudicial error”); Sanders, 129 S. Ct.
at 1706 (the rule of prejudicial error requires Federal courts to review cases for errors of law without
regard to errors that do not affect the parties’ substantial rights). Not surprisingly, the parties
disagree as to who has the burden of demonstrating prejudice. As noted above, the Supreme Court
issued Sanders after Vazquez-Flores I was issued and we now re-examine the issue of who has the
burden of demonstrating prejudice in light of the Supreme Court’s decision.
Mr. Vazquez-Flores argues that Sanders instilled new life into Mayfield I, and that the
Secretary therefore has the burden of demonstrating prejudice, while the Secretary counterargues that

See Mayfield I, 19 Vet.App. at 119 (“[O]nce an appellant has demonstrated an 6 error below he or she generally
bears a responsibility to initiate consideration of the issue of prejudice, that is, the appellant carries the burden of going
forward with a plausible showing of how the essential fairness of the adjudication was affected by that error.”).
7See Mayfield I, 19 Vet.App. at 122; see also id. at 116 (defining a “prejudicial error” as one that “affects a
substantial right so as to injure an interest that the statutory or regulatory provision involved was designed to protect such
that the error affects ‘the essential fairness of the [adjudication]'” (citing McDonough Power Equip., Inc. v. Greenwood,
464 U.S. 548, 554, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed.
Cir.1996))); Parker v. Brown, 9 Vet.App. 476, 481 (1996).
14
the appellant bears the burden. We now resolve that debate. Mayfield I did not address the
prejudicial effect of inadequate preadjudicatory notice for an increased-rating claim. Rather,
Mayfield I addressed preadjudicatory notice in the context of an initial claim for benefits, which
unlike an increased-rating claim, requires (1) a current disability, (2) in-service incurrence of an
injury or disease or aggravation thereof, and (3) a nexus between the current disability and the inservice
disease or injury. Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff’d per curiam, 78 F.3d
604 (Fed. Cir.1996).
In Mayfield I, the preadjudicatory notice provided to the claimant never advised her that
evidence showing a nexus between service and the current disability was needed to substantiate the
claim. The Court noted the general rule that appellants have the burden of demonstrating prejudice
on appeal,6 but further noted that the failure to provide any notice on a key element needed to
substantiate a claim in the first instance had a natural, adverse effect on the ability of the claimant
to meaningfully participate in the processing of his claim and the essential fairness of the
adjudication. Under such circumstances, the Court held that the Secretary had the burden of
demonstrating there was no prejudice to the appellant, or in other words, that the error did not affect
the essential fairness of the adjudication.7
We recognize and fully adhere to the Supreme Court’s caution in Sanders that the shifting
of the burden to demonstrate prejudice is not absolute and is based on experience learned over time
of the types of errors that are likely to prove harmful. Although Mayfield I has been read as
establishing an absolute shifting of the burden in all cases where notice how to substantiate a claim
is inadequate, closer examination reveals that the burden shifting only occurs when notice is wholly
defective as to a key element needed to substantiate a claim for benefits in the first instance.
Mayfield I, 19 Vet.App. at 120 (“We agree with the Secretary that our application of the rule of

Our concurring colleague reiterates his disagreement stated in his concurring 8 statement from Vazquez-Flores
I, 22 Vet.App. at 51-57, that the entire record should not be reviewed, as a whole, to determine whether section 5103(a)
notice errors are prejudicial. His disagreement relied heavily on the rigid framework established by the Federal Circuit’s
decision in Sanders v. Nicholson, which was reversed, vacated, and the matters remanded. 487 F.3d 881 (Fed. Cir.
2007), rev’d, 129 S. Ct. 1696, 1705 (2009) (“The Federal Circuit’s presumptions exhibit the very characteristics that
Congress sought to discourage . . . . They would require the reviewing court to find the notice error prejudicial even if
that court, having read the entire record, conscientiously concludes the contrary.” (emphasis added)).
15
prejudicial error should not permit automatic remands that would make the Court an ‘impregnable
citadel [ ] of technicality'” (citing United States v. Hasting, 461 U.S. 499, 508-09 (1983))); see also
Cohens v. Virginia, 6 Wheat. 264 (1821) (noting that language in a particular case is meant to be
viewed in the context of the case and should not be extended blindly in subsequent cases).
When notice how to substantiate a claim is wholly defective as to a key element needed to
substantiate the claim, such that the absence of evidence on the key element will result in denial of
the claim, the natural effect is that the claimant is deprived of a meaningful opportunity to participate
in the processing of his claim. It is under these circumstances that Mayfield I holds that the Secretary
has the burden of demonstrating the notice error was not prejudicial.
Mayfield I, 19 Vet.App. at 122;
see also Vazquez-Flores I, 22 Vet.App. at 46 (noting that the extensive post-initial decision
administrative processing provided below, including the identification of the issues in dispute
provided in the SOC and the requirement for the Secretary to provide medical examinations if
needed to properly decide the claim, might demonstrate that a preadjudicatory notice was not
prejudicial). Moreover, even when the burden shifts to the Secretary to demonstrate no prejudice,
this is not the absolute defining factor for assessing prejudice as the Court always has the duty to
review the record for prejudice. Sanders, 129 S. Ct. at 1705 (noting that reviewing courts “read the
entire record” when determining whether there is prejudicial error); Newhouse v. Nicholson, 497
F.3d 1298, 1301 (Fed. Cir. 2007) (noting that the Court is required to review the administrative
record for prejudicial error); Mlechick v. Mansfield, 503 F.3d 1340, 1346 (Fed. Cir. 2007) (noting
that the Court must review the record to take due account of the rule of prejudicial error); Conway
v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004) (“[T]he Veteran’s Court must ‘take due account of
the rule of prejudicial error’ in all cases addressing the notice requirements in section 5103(a) . . . .”).8
As noted above, Mayfield I did not address notice and prejudice in the context of an increased-rating
claim; we now turn to that issue.
Although preadjudicatory notice to provide evidence of the i 9 mpact of a worsening disability on life or a
particular test result or measurement is not required per Vazquez-Flores II, 580 F.3d at 1280-81, evidence of the impact
a worsening of disability has on life or a particular test result are factors in some of the DCs in the schedule for rating
disabilities, see, e.g., 38 C.F.R. § 4.130, DC 9440 (2010) (evaluating mental disorders based upon the severity of
“occupational and social impairment,” including, inter alia, ” family relations,” interference with routine activities,” and
“inability to perform activities of daily living (including maintenance of minimal personal hygiene),” § 4.88b, DC 6354
(2010) (evaluating Chronic Fatigue Syndrome based upon the degree to which fatigue “restrict[s] routine daily activities”
(emphasis added)), and §4.79, DC 6066 (2010) (providing a 50% disability rating if the corrected vision in one eye is
found to be measured at 20/70).
16
b. Increased-Rating Claim
In a claim for increased benefits, the claimant already is service connected for a disability.
A claim for increased benefits can be substantiated with evidence of a worsening of the disability that, depending upon the nature of the corresponding disease or injury in the DC, is demonstrated by more objective evidence such as a specific measurement or test result, or, more general evidence such as the impact upon employment or daily life.9 Significantly, however, all three types of evidence are not always necessary to be awarded a higher disability rating. Compare 38 C.F.R. § 4.71a, DC 5215 (2010) (evaluating ankylosis of the wrist at 10% if dorsiflexion is less than 15 degrees), and § 4.100, DC 6847 (2010) (evaluating sleep apnea syndrome at 50% if the veteran requires the use of breathing assistance such as a continuous airway pressure machine), with 38 C.F.R. § 4.130, DC 9201 (2010) (evaluating schizophrenia based upon, inter alia, the degree of occupational impairment, including “difficulty in adapting to stressful circumstances (including work or a worklike setting)”), and with 38 C.F.R. § 4.88b, DC 6354 (evaluating Chronic Fatigue Syndrome based upon the degree to which fatigue “restricts routine daily activities”).
Thus, while the failure to provide any notice how to substantiate a claim for increased
benefits would be akin to the lack of notice on the key element of nexus addressed in Mayfield I, providing inadequate or incomplete notice how to substantiate a claim for increased benefits – e.g., notice to provide evidence how a disability has worsened, without notice to provide evidence of its impact on employment – is not. This is because complying with such notice (i.e., by providing evidence of the worsening of the disability), unlike the situation in Mayfield I, does not necessarily mean the increased-rating claim will be denied, and the notice error does not, therefore, have a natural adverse effect on the claimant’s ability to meaningfully participate in the processing of his claim or the essential fairness of the adjudication. Accordingly, except when section 5103(a) notice
17
how to substantiate an increased-rating claim simply is not provided at all, a shift of the appellant’s burden to the Secretary to show that the appellant was not prejudiced is unwarranted.
c. Application of Law and Fact
In this instance, Mr. Vazquez-Flores was provided a December 2003 notice letter that
informed him that to substantiate his claim for increased benefits he needed to provide evidence that his disability had worsened. Although this is not complete notice, it is not the total absence of notice as to a key element generally needed to substantiate the claim that we saw in Mayfield I. See 19
Vet.App. at 122. Moreover, the schedular rating criteria for nephrolithiasis does not explicitly
include the impact nephrolithiasis has on employment. See 38 C.F.R. § 4.115b, DC 7508 (2010) (rating nephrolithiasis, inter alia, at 30% if recurrent stone formation requires either diet therapy, drug therapy, or an invasive or non-invasive procedure more than two times per year). Accordingly, the inadequacy of this notice does not have a natural, adverse affect on the ability of Mr. Vazquez-Flores to meaningfully participate in the processing of his claim and the essential fairness of the adjudication. Thus, the burden of demonstrating prejudice falls on Mr. Vazquez-Flores.
Although Mr. Vazquez-Flores does not specifically argue prejudice (indeed, he contends he
has no burden of demonstrating prejudice), he does contend that the notice he received was
confusing. If the notice letters of April 2001 and December 2003 are considered in a vacuum, they certainly can be confusing as there is no indication which notice should be followed to substantiate his claim for increased benefits. However, prejudice is not assessed in a vacuum; rather it is based on the facts and circumstances presented in the entire record. Sanders, Newhouse, Mlechick, and Conway, all supra.
The record on appeal reflects that since Mr. Vazquez-Flores submitted his claim for an
increased rating in 1994, he has submitted evidence reflecting the impact of his disability on his
employment, and evidence on this issue has been developed by the Secretary. For example, (1) an August 1997 VA medical report states that Mr. Vazquez-Flores could not work because of back pain (R. at 425); (2) a February 1998 hearing transcript notes the testimony of Mr. Vazquez-Flores’s private psychiatrist that Mr. Vazquez-Flores had no industrial capacity due to his physical, psychiatric and social conditions(R. at 17, 458); (3) a November 2002 VA examination report states that Mr. Vazquez-Flores stopped working in April 1978 and had been receiving Social Security
18
benefits since 1978 (R. at 583-85); and (4) Mr. Vazquez-Flores’s Social Security Association records, obtained by the Board in 2002 note, inter alia, poor ability to comprehend and follow instructions as well as poor ability to perform simple, complex, and repetitive tasks and that no degree of improvement can reasonably be anticipated in Mr. Vazquez-Flores’s condition (R. at 588-89).
Moreover, the Board is not only presumed to have reviewed this information, Newhouse, 497 F.3d at 1302, its statement of reasons or bases supporting the decision reflects its awareness that Mr. Vazquez-Flores’s nephrolithiasis, along with his other physical, psychiatric, and social conditions, has impacted his employment to the degree that he has not been able to work since 1978. R. at 9, 17. Accordingly, without any indication from Mr. Vazquez-Flores that he has been prejudiced by the Secretary’s error, and without finding any prejudice demonstrated by the record on appeal, remand is not warranted with regard to his assigned schedular rating. See Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (noting that remand is unnecessary “[i]n the absence of demonstrated prejudice”).

D. Extraschedular and Total Disability Ratings
Although we find no prejudice arising from the notice error, we note that the Board also
determined that referral of Mr. Vazquez-Flores’s claim for extraschedular consideration in
accordance with § 3.321(b) was not warranted because the evidence did not show that his
nephrolithiasis, by itself, caused frequent hospitalization or marked interference with employment. R. at 17. Logically, because Mr. Vazquez-Flores’s claim for benefits for a neuropsychiatric disability has been remanded on appeal and there is evidence showing that both his physical and mental conditions have caused unemployment, the Board will have to again address possible referral of his claim for consideration of entitlement to an extraschedular rating on remand. See Tyrues v. Shinseki, 23 Vet.App. 166, 178-79 (2009) (remand generally appropriate when matter on appeal is “inextricably intertwined” with matters being adjudicated below); Thun v. Peake, 22 Vet.App. 111 (2008) (holding that referral for extraschedular consideration is a three-step inquiry and is not warranted if the rating schedule adequately contemplates the effect of a claimant’s level of disability and symptomatology).
Moreover, we note that evidence in the record reasonably raises whether Mr. Vazquez-Flores
is entitled to TDIU. See R. at 583-85 (a November 2002 VA examination report states that Mr.
19
Vazquez-Flores stopped working in April 1978 and had been receiving Social Security benefits since 1978), 458 (a February 1998 hearing transcript notes the testimony of Mr. Vazquez-Flores’s private psychiatrist that Mr. Vazquez-Flores had no industrial capacity due to his physical, psychiatric and social conditions); see also 38 C.F.R. § 4.16 (2010) (criteria for a total rating based on individual unemployability). Accordingly, the Board erred in not addressing TDIU and it must do so on remand. See Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (noting that the Secretary must consider TDIU when a veteran makes a claim for the highest rating possible and submits evidence of a medical disability and of unemployment); Robinson v. Peake, 21 Vet.App. 545, 552 (2008)(noting that the Board required to consider all issues raised either by the claimant or by evidence of record); see also Barringer v. Peake, 22 Vet.App. 242, 244 (2008) (Court has jurisdiction to review whether Board erred in failing to address a reasonably raised claim); Patton v. West, 12 Vet.App. 272, 283 (1999) (noting that the Court’s statutory directive under 38 U.S.C. § 7261 to “decide all relevant questions of law” allows it to raise issues sua sponte, particularly where “substantial interests of justice dictate that the Court require the Secretary to adhere to his own regulatory provisions”).
III. CONCLUSION
Upon consideration of the foregoing, that part of the Board’s February 1, 2005, decision that
denied disability compensation for neuropsychiatric disorder because it was not service connected on a direct basis or as secondary to a service-connected renal disability remains REMANDED for
further adjudication consistent with this opinion and the Court’s January 30, 2008, opinion; that part of the Board’s decision denying entitlement to an increased schedular rating is AFFIRMED;
however, the denial of an extraschedular rating and implicit denial of a total disability rating based upon individual unemployability is SET ASIDE and the matters REMANDED for further
adjudication consistent with this decision.

HAGEL, Judge, concurring in the result: Although I agree with the majority’s opinion in this
appeal, I feel compelled to reiterate my disagreement with the majority’s conclusions in Vazquez-Flores I that an appellant’s postadjudicatory participation in the VA appellate process can alone
20
render a section 5103(a) notice error nonprejudicial. Because the Federal Circuit did not address this issue in Vazquez-Flores II, 580 F.3d 1270 (Fed. Cir. 2009), the Court’s majority opinion as to these issues stands undisturbed. Therefore, for the reasons stated in my concurrence in Vazquez-Flores I, see 22 Vet.App. 37, 51-57 (2008), I continue to respectfully disagree with the majority’s apparent minimization of the duty to notify.
.
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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
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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
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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
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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
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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
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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.
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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 decision maker with whatever support is available, and to ensure that the claimant understands what evidence will be obtained by the VA and what evidence must be provided by the claimant’ prior to the initial adjudication of [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).

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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.

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