Veteranclaims’s Blog

April 5, 2009

BVA duties, BVA must account for and provide reasons for rejection of material evidence favorable to veterans, Dingess v. Nicholson, No. 01-1917

Filed under: BVA duties; Dingess v. Nicholson, No. 01-1917 — veteranclaims @ 3:51 pm

One of the items of note in Dingess is the court’s statement that: In complying with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) (table); Gilbert, supra
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“The Board is also required to include in its decision a written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on the record. See 38 U.S.C. 7104(d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.
App. 49, 56-57 (1990). That statement must be adequate to enable an
appellant to understand the precise basis for the Board’s decision, as
well as to facilitate review in this Court. See Allday and Gilbert, both
supra. In complying with this requirement, the Board must analyze the
credibility and probative value of the evidence, account for the evidence
that it finds persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the veteran. See Caluza v.
Brown, 7 Vet.App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) (
table); Gilbert, supra”

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. 01-1917
Copy of Dingess.Hartman.01-1917.02-1506.wpd
Search Terms: NO “#0000000001.000″ “#-999998083.000″
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 01-1917

Donald L. Dingess, Appellant,

and

No. 02-1506

Marcellus S. Hartman, Appellant,

v.

R. James Nicholson,
Secretary of Veterans Affairs, Appellee.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Argued December 2, 2004
Decided March 3, 2006 )

Kenneth M. Carpenter, of Topeka, Kansas, with whom Richard LaPointe,
of Marco Island, Florida, was on the brief, for appellant Donald L.
Dingess.

Susan Paczak, of Pittsburgh, Pennsylvania, for appellant Marcellus S.
Hartman.

Robert W. Legg, with whom Tim S. McClain, General Counsel; R. Randall
Campbell, Assistant General Counsel; Joan E. Moriarty, Deputy Assistant
General Counsel; and David L. Quinn, all of Washington, D.C., were on the
brief in Previous HitNoNext Hit. Previous Hit01-1917Next Hit, for the appellee. Tim S. McClain, General Counsel;
R. Randall Campbell, Assistant General Counsel; and Richard Mayerick,
Deputy Assistant General Counsel, all of Washington, D.C., were on the
brief in Previous HitNoNext Hit. 02-1506, for the appellee.

Richard Robert James, of Glen Allen, Virginia, was on the brief for
the National Organization of Veterans’ Advocates as amicus curiae.

Before GREENE, Chief Judge, and KASOLD and HAGEL, Judges.[ *
On December 2, 2004, the en banc Court consisting of Chief Judge
Ivers, Judge Steinberg, Judge Greene, Judge Kasold, and Judge Hagel heard
oral arguments in this consolidated appeal. On August 4, 2005, the full-
court panel was dissolved, because of the retirements of Chief Judge Ivers
and Judge Steinberg, and the matter was referred for disposition to a
panel composed of Chief Judge Greene, and Judges Kasold and Hagel.]*

GREENE, Chief Judge: These cases present different but related
questions of whether the notice provisions of 38 U.S.C. 5103(a), as
amended by the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. Previous HitNoNext Hit.
106-475, 3(a), 114 Stat. 2096, 2096-97, apply to the assignment of an
initial disability rating (Dingess appeal) and effective date (Hartman
appeal) associated with an award of VA service-connection disability
compensation.
Appellant Donald L. Dingess appeals, through counsel, an October 24,
2001, decision of the Board of Veterans’ Appeals (Board) that denied (1)
an initial VA disability rating higher than 30% for an award of service
connection for his post-traumatic stress disorder (PTSD) and (2) a rating
of total disability based on individual unemployability (TDIU) resulting
from his service-connected disability. Dingess Record (Din. R.) at 1-14.
Appellant Marcellus S. Hartman appeals, through counsel, a February 14,
2002, Board decision that denied an effective date earlier than April 15,
1999, for an award of service connection for PTSD. Hartman Record (Har. R
.) at 2. The U.S. Court of Appeals for the Federal Circuit (Federal
Circuit) remanded these cases for the Court to take account of the rule of
prejudicial error pursuant to Conway v. Principi, 353 F.3d 1369 (Fed. Cir.
2004). The Court ordered additional briefing and oral argument on whether
section 5103(a) applies to these cases. The Court expresses its
appreciation to all parties and to amicus curiae National Organization of
Veterans’ Advocates (NOVA) for its assistance in these appeals.
After considering the briefs and oral argument of the parties and
amicus, we hold that (1) section 5103(a) requires notice to a claimant of
how a VA service-connection claim may be substantiated as to all five
elements of that claim and (2) certain standards apply for the timing and
content of that notice. These holdings and the application of the rule
of prejudicial error under 38 U.S.C. 7261(b)(2), lead to the following
conclusions: (1) In Dingess, the Board erred in not providing adequate
notice on how to substantiate a TDIU claim, and, applying the rule of
prejudicial error, the Court will vacate, in part, and affirm, in part,
the October 2001 Board decision; and (2) in Hartman, the Board did not
commit prejudicial error, and, as such, the Court will withdraw the July
22, 2004, single-judge order and will affirm the February 2002 Board
decision.

I. BACKGROUND
A. Dingess Appeal
In June 1999, Vietnam veteran Donald L. Dingess filed with VA an
application for compensation or pension in which he listed “[PTSD and]
other nervous conditions” as the condition for which the claim was being
made. Din. R. at 62. He made Previous HitnoNext Hit statement regarding the extent of his
disability or the disability rating to which he believed he was entitled
in the event that he obtained an award of service connection. In May 2000,
a VA regional office (RO) awarded Mr. Dingess, under 38 U.S.C. 1110,
service connection for PTSD and assigned (1) a temporary total disability
rating for the duration of his in-patient treatment program and (2) a 10%
rating thereafter, effective from June 22, 1999. Id. at 220-26. The
following month, he filed a Notice of Disagreement (NOD) seeking a rating
higher than 10%. Id. at 231.
During a VA medical examination in November 2000, Mr. Dingess
reported that he was experiencing the following symptoms: Nightmares,
disruptive sleep, bursts of rage and irritability, extreme depression,
little or Previous HitnoNext Hit concentration, and crowd avoidance. Id. at 372. According
to the examination report, Mr. Dingess stated that his symptoms “caused
him to end his small business of selling used appliances and furniture out
of his house.” Id. He also reported his belief that his Vietnam
experiences led to “his inability to obtain and maintain substantially
gainful employment.” Id. The medical examiner diagnosed Mr. Dingess as
having “[PTSD], chronic, moderate” and stated: “The major stressors in the
veteran’s life at present are his criminal probation, his financial
inadequacy, his relative homelessness[,] and psychiatric symptoms which
are interfering with his ability to function.” Id. at 374. The examiner
assessed Mr. Dingess’ Global Assessment of Functioning (GAF) score at 60
for PTSD alone. Id; see also Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed. 1994) [hereinafter DSM-IV] (GAF is scale reflecting “
psychological, social, and occupational functioning on a hypothetical
continuum of mental health- illness.” A GAF score of 60 reflects “[m]
oderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) or moderate difficulty in social, occupational, or school
functioning”). The examiner further stated: “The veteran’s symptoms of
PTSD are considered to be moderate in severity. He is competent and
employable.” Din. R. at 374.
In January 2001, a decision review officer (DRO) increased Mr.
Dingess’ PTSD rating to 30%, effective from June 22, 1999; increased that
rating to 100% based on his 12-week hospitalization, effective from
November 22, 1999, until February 29, 2000; but continued the rating at 30
%, effective from March 1, 2000. Id. at 390-93. The DRO indicated that,
given Mr. Dingess’ “level of disability and other factors, such as [his]
age, education[,] and occupational background,” an “extraschedular
permanent and total disability rating” was authorized “subject to approval
by the [a]djudication officer.” Id. at 391. That same month, the RO
issued a Statement of the Case (SOC). Id. at 376-88. Mr. Dingess,
through counsel, appealed the DRO decision to the Board; in that appeal,
he sought an increased PTSD rating and presented an additional claim for a
TDIU rating. Id. at 400- 01, 403-08.
In May 2001, the RO notified Mr. Dingess to submit any evidence
showing that his service- connected PTSD had increased in severity. Id.
at 419-20. One week later, Mr. Dingess informed the RO that he had Previous HitnoNext Hit
medical evidence to submit. Id. at 427. In June 2001, the RO denied a
TDIU rating. Id. at 430-32. The RO found that the evidence did not show
that he met the established schedular rating requirements for a TDIU
rating. Id. The RO stated that the claim would not be “submitted for
extra[]schedular consideration because there [were] Previous HitnoNext Hit exceptional factors
or circumstances associated with the veteran’s disabilities rendering him
unable to secure or follow a substantially gainful occupation.” Id. at
431. Mr. Dingess again appealed to the Board. Id. at 443- 52, 456.
In the October 2001 decision here on appeal, the Board also denied a
rating higher than 30% for Mr. Dingess’ service-connected PTSD. Id. at 4-
9. Concerning the Secretary’s statutory and regulatory notice obligations,
the Board, after noting that the VCAA was enacted during the pendency of
the appeal, concluded that “the notice and duty to assist provisions have
been satisfied.” Id. at 4. The Board determined that, in May 2001, Mr.
Dingess was advised of the evidence necessary to substantiate his claim
for a higher rating and was offered an opportunity to respond, and that in
an August 2001 SOC he “was advised . . . of the applicable law and
regulations governing a [TDIU-rating] claim.” Id. The Board denied his
claim for a TDIU rating after determining that, under 38 C.F.R. 4.16(a)-(
b) (2001), “there was Previous HitnoNext Hit evidence to show that the veteran’s PTSD symptoms
. . . prevent him from obtaining substantially gainful employment.” Id.
at 10-11.
On November 8, 2002, the Court held that the Board erred when it
failed to discuss adequately how VA had complied with the notice
requirements in 38 U.S.C. 5103(a). Therefore, the October 2001 Board
decision was vacated and the matter remanded for compliance with the VCAA.
Dingess v. Principi, Previous HitNoNext Hit. Previous Hit01-1917Next Hit, 2002 WL 31513337 (Vet. App. Nov. 8, 2002
). The Secretary appealed to the Federal Circuit, which, on January 7,
2004, vacated this Court’s decision and returned the matter “for further
proceedings consistent with [the Federal Circuit's] holding in Conway[,
supra].” Dingess v. Principi, 85 Fed. Appx. 216 (Fed. Cir. 2004) (per
curiam order). In Conway, supra, the Federal Circuit held that, when
determining that the Board had failed to ensure compliance with section
5103(a) notice requirements and when considering whether the Secretary’s
failure to comply with section 5103(a) requires a remand to the Board,
this Court must “take due account of the rule of prejudicial error” as
provided in 38 U.S.C. 7261(b)(2). Subsequently, the parties here filed
supplemental briefs addressing the proper disposition of this appeal in
light of the Federal Circuit’s order.
B. Hartman Appeal
Vietnam veteran Marcellus S. Hartman was awarded education benefits
under chapter 34 of title 38, U.S. Code. Har. R. at 17. In September
1986, he sent to the RO two letters disagreeing with a June 1986 Board
decision that had denied an extension of the delimiting date for his use
of the chapter 34 educational-assistance allowance. Id. at 86-87, 89. He
argued that his PTSD prevented him from using all of his education
benefits before the delimiting date of May 6, 1982. Id. The RO
considered his letters as an informal claim for service connection for
PTSD and notified him in October 1986 that certain evidence was needed to
process his claim. Specifically, the RO requested (1) a detailed
description of the traumatic incidents that happened in service that
produced the stress that caused his PTSD, and (2) medical reports from
doctors who had treated him for PTSD since his May 1972 discharge. Id. at
91.
In a November 6, 1986, letter to the RO, Mr. Hartman acknowledged
receiving the RO’s notice “reminding [him] of an appointment with VA in
Temple[, Texas,] on November 24″; he advised that he had never asked for
any appointments, that Previous HitnoNext Hit one had asked him if he wanted one, and that he
had “Previous HitnoNext Hit plans to be in Temple on November 24th.” Id. at 94. The RO
subsequently
advised him by letter that a claim may be disallowed for failure to
prosecute where requested evidence is not furnished or where a veteran
does not report for a scheduled examination; and that he should make every
effort to keep his scheduled appointment or contact the VA medical center (
VAMC) to reschedule the appointment. Id. at 97. On December 18, 1986,
the RO notified Mr. Hartman that, because he had failed to report for his
scheduled PTSD examination, further action would not be taken on his PTSD
claim. Id. at 104. Attached to that letter was a notice of his
procedural and appellate rights. Id. The record on appeal does not
indicate that Mr. Hartman appealed that decision. See id. at 1-206.
In April 1999, Mr. Hartman again claimed service connection for PTSD
and asked VA to obtain certain VA medical records. Id. at 107.
Specifically, in his statement in support of his claim, he stated as
follows: “I’m filing [for] service connection for PTSD. I have a stressor
that I was awarded the Purple Heart.” Id. He made Previous HitnoNext Hit statement regarding
an effective date. A July 1999 RO decision awarded him service connection
for his PTSD, and assigned a 70% disability rating, effective April 15,
1999. Id. at 144-48. In February 2000, the RO awarded a TDIU rating,
effective from April 15, 1999, and denied an effective date earlier than
April 15, 1999, for the award of service connection for his PTSD. Id. at
177-79. In February 2001, he disagreed with the effective date for his
award of service connection for PTSD. Id. at 181-82. He maintained that
the effective date should be the date of his discharge from the Army. Id
. An SOC was issued in May 2001. Id. at 184-94. In his Substantive
Appeal to the Board, Mr. Hartman, through counsel, argued that he had
filed in 1985 an implied claim for service connection and, relying on
Hayre v. West, 188 F.3d 1327 (Fed. Cir. 1999) (holding that a grave
procedural error could prevent a decision from becoming final), asserted
that the RO had committed grave procedural error by failing to obtain all
necessary records from various VA facilities. Har. R. at 197.
In its decision denying Mr. Hartman an effective date earlier than
April 15, 1999, the Board addressed VA’s notice obligations under the VCAA
of section 5103(a) and stated:
The Board notes that it does not appear that the RO explicitly
addressed the provisions of the VCAA when it adjudicated the case
below. Nevertheless, the Board finds that VA’s duties have been
fulfilled in the instant case. Here, the RO advised the veteran of
the evidence necessary to substantiate his claim by the May
2001 [SOC], including the applicable criteria concerning the
assignment of effective dates for grants of service connection.
Further, the veteran has not identified any pertinent evidence that
is not of record. . . . Thus, the Board finds that the duty to
assist and duty to notify provisions of the VCAA have been fulfilled,
including the revised regulatory provisions of 38 C.F.R. 3.159[ (
2001)], and that Previous HitnoNext Hit additional assistance to the veteran is required
based on the facts of the instant case.
Id. at 4. As to the effective date assigned, the Board concluded that,
although Mr. Hartman had filed a claim for service connection for PTSD in
1986, he had abandoned his claim when he had failed to report for the VA
medical examination scheduled for November 1986 and had not sought to
reschedule it. Id. at 10-11 (citing 38 C.F.R. 3.158(a) (2001)). The
Board found that, other than the abandoned claim, “Previous HitnoNext Hit formal or informal
claim of service connection for PTSD was received prior to [Mr. Hartman]‘s
statement of April 15, 1999.” Id. The Board concluded that although Previous HitnoNext Hit
additional VA medical records had been requested following his November
1986 statement, he nevertheless had abandoned his claim at that time. Id.
at 13. Thus, the Hayre opinion did not provide a basis upon which to
award an earlier effective date (EED). Id. (citing Wood v. Derwinski, 1
Vet.App. 190, 193 (1991) (noting that duty to assist is not a one-way
street)). Mr. Hartman appealed.
On August 18, 2003, the Court held that the Board had committed
section 5103(a) and 3.159(b) notice error and remanded the matter to the
Board pursuant to Quartuccio v. Principi, 16 Vet.App. 183 (2002). Hartman
v. Principi, Previous HitNoNext Hit. 02-1506, 2003 WL 21981584 (Vet. App. Aug. 18, 2003). The
Secretary appealed to the Federal Circuit, which remanded the matter
pursuant to Conway, supra. Hartman v. Principi, 98 Fed. Appx. 885 (Fed.
Cir. 2004). This Court, on July 22, 2004, found notice error, again
ordered the February 2002 Board decision vacated, and remanded the matter.
The Court held that VA had failed to comply with its amended duty to
notify Mr. Hartman either of the information and evidence necessary to
substantiate his EED claim or of which party is responsible for attempting
to obtain any such information or evidence under section 5103(a). Hartman
v. Principi, Previous HitNoNext Hit. 02-1506, 2004 WL 1657540 (July 22, 2004). On August 12,
2004, the Secretary filed a motion for reconsideration or a panel decision
. On October 19, 2004, the motion for a panel decision was granted, and
the panel directed the parties to file supplemental briefs
and invited any interested amicus curiae to file a brief. Hartman v.
Principi, 18 Vet.App. 432, 433 (2004) (per curiam order).

II. CONTENTIONS ON APPEAL
Both appellants argue that their Board decisions should be vacated
and their claims remanded for proper notice under section 5103(a). They
argue that (1) the section 5103(a) notice provisions apply to all claims
for benefits sought by claimants and to each element of those claims,
including the elements of effective date and disability rating; (2) each
claim must be construed as a claim for the maximum benefits available
under the law for each element of the claim; (3) VA has failed to comply
with these notice provisions; and (4) the Secretary has the burden of
demonstrating that VA’s error was not prejudicial. Appellant (App.) Din.
Supplemental (Suppl.) Brief (Br.) at 5-11, 16-25; App. Har. Br. at 7-8;
App. Har. Suppl. Br. at 5-16. Mr. Dingess also argues that (1) the
Secretary “failed to fulfill his statutory duty to assist under 38 U.S.C.
5107(a) (now 5103A)” [by] not provid[ing] him with an adequate medical
examination and that both the November 1999 and November 2000 medical-
examination reports lack any information required under 38 C.F.R. 4.1 (
2005) about the limitations of activity imposed by his PTSD; (2) the Board “
failed to provide adequate reasons [or] bases for [its] decision as
required by 38 U.S.C. 7104(d)(1)” because it did not address whether his
PTSD claim warranted extraschedular consideration under 38 C.F.R. 3.321(
b)(1) (2001); and (3) the Board did not “provide any adequate discussion
of the veteran’s educational and occupational history in the context of a
determination of eligibility based on TDIU under 38 C.F.R. 4.16(b).”
App. Din. Br. at 2-5.
The Secretary argues that, in both cases, there is evidence to “
substantiate the claim” when VA has in its possession sufficient
information and evidence to award a claimant service connection and to
assign a disability rating and effective date for that service-connected
disability. Therefore, he contends that once a claim is substantiated, as
in these cases, section 5103(a) notice is Previous HitnoNext Hit longer required. Secretary (
Sec’y) Din. Suppl. Br. at 5-6. The Secretary further contends, assuming
that he was required to and did not provide section 5103(a) notice for a
potential higher rating of an original disability rating or an EED, that
the appellants here have failed to meet their burden of demonstrating
prejudice arising from any such notice error. Sec’y Har. Suppl. Br. at
10-18; Sec’y Din. Suppl. Br. at 14-18.
The Secretary also argues that Mr. Dingess did not allege in his
initial appeal to the Court error regarding the Secretary’s section 5103(a)
notice obligations, that the Court raised the notice issue sua sponte in
its November 2002 decision, and that the Court should not now find such
error to exist. Sec’y Din. Suppl. Br. at 13-14, 18. Regarding the other
grounds for a remand asserted by Mr. Dingess, the Secretary asserts that
the medical evidence of record provides ample support for the Board’s
factual finding that Mr. Dingess did not meet the necessary criteria for a
rating higher than 30% for PTSD or for a TDIU rating. Id. at 11. The
Secretary also argues that the duty to assist was met because both medical-
examination reports provided information about the limitations of activity
imposed by Mr. Dingess’ PTSD. Id. at 16-17. As to the TDIU-rating claim,
the Secretary maintains that Mr. Dingess does not meet the 60% single-
disability rating requirement of 38 C.F.R. 4.16(a) and is therefore not
eligible for a TDIU rating under that provision. Id. at 17-18. The
Secretary also asserts that the record does not support a finding of
unemployability and that Mr. Dingess is thus not eligible for
consideration under 4.16(b). Id. at 18-19. Finally, the Secretary
argues that there is Previous HitnoNext Hit evidence of record that would warrant
extraschedular consideration under 3.321(b)(1). Id. at 19-20.

III. ANALYSIS

Although Mr. Dingess did not raise in his principal brief any
argument concerning the Secretary’s compliance with the VCAA notice
requirements, thereby potentially abandoning that issue, see Ford v. Gober,
10 Vet.App. 531, 535-36 (1997); Degmetich v. Brown, 8 Vet.App. 208, 209 (
1995), aff’d, 104 F.3d 1328 (Fed. Cir. 1997), it was that issue that
formed the basis of this Court’s remand decision that the Federal Circuit
vacated. Additionally, Mr. Dingess has properly raised this issue in the
context of this current appellate proceeding. Therefore, the issue will
be addressed. See Mayfield v. Nicholson, 19 Vet.App. 103, 109 (2005),
argued, Previous HitNoNext Hit. 05-7157 (Fed. Cir. Feb. 6, 2006).

A. Applicable Law and Regulation Regarding VCAA Notice and Assistance
Section 3 of the VCAA amended, inter alia, 38 U.S.C. 5103 (“Notice
to claimants of required information and evidence”). VCAA 3(a), 114
Stat. at 2096-97. As amended, section 5103(a) provides:
(a) Required Information and Evidence.-Upon receipt of a
complete or substantially complete application, the Secretary shall
notify the claimant and the claimant’s representative, if any, of any
information, and any medical or lay evidence, not previously provided
to the Secretary that is necessary to substantiate the claim. As
part of that notice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be provided by the
claimant and which portion, if any, the Secretary, in accordance with
section 5103A of this title and any other applicable provisions of
law, will attempt to obtain on behalf of the claimant.
38 U.S.C. 5103(a). On August 29, 2001, the Secretary issued 38 C.F.R.
3.159(b) to implement this notice requirement, which applies to any claim
for benefits, pending before the Department and “not decided by VA” as of
November 9, 2000, the date of the VCAA’s enactment. 66 Fed. Reg. 45,620,
45,629-32 (Aug. 29, 2001); see also Pelegrini v. Principi, 18 Vet.App. 112 (
2004). Specifically 3.159(b)(1) provides, and provided at the time of
the Board decisions here on appeal, in pertinent part:
(b) VA’s duty to notify claimants of necessary information or
evidence. (1) When VA receives a complete or substantially complete
application for benefits, it will notify the claimant of any
information and medical or lay evidence that is necessary to
substantiate the claim. VA will inform the claimant which
information and evidence, if any, that the claimant is to provide to
VA and which information and evidence, if any, that VA will attempt
to obtain on behalf of the claimant. VA will also request that the
claimant provide any evidence in the claimant’s possession that
pertains to the claim.

(2) If VA receives an incomplete application for benefits, it
will notify the claimant of the information necessary to complete the
application and will defer assistance until the claimant submits this
information.
38 C.F.R. 3.159(b) (2005). The regulatory requirement that VA “‘will
also request that the claimant provide any evidence in the claimant’s
possession that pertains to the claim’, 38 C.F.R. 3.159(b)(1), has been
termed ‘a fourth element of the requisite notice.’” Mayfield, 19 Vet.App.
at 110 (quoting Pelegrini, 18 Vet.App. at 121). In Quartuccio, this Court
remanded to the Board for
further adjudication a denied claim to reopen after holding that Previous HitnoNext Hit
documents in the record demonstrated that the notice requirements of
section 5103(a) and 3.159(b)(1) had been met. We observed that the
documents of record failed to “‘notify the claimant . . . of any
information, and any medical or lay evidence, not previously provided to
the Secretary that is necessary to substantiate the claim’” and failed to “
‘indicate which portion of that information and evidence, if any, is to be
provided by the claimant and which portion, if any, the Secretary . . .
will attempt to obtain on behalf of the claimant.’” Quartuccio, 16 Vet.
App. at 187 (quoting 38 U.S.C. 5103(a)).
Generally, “an appellant claiming noncomplying notice bears the
burden of convincing the Court that a notice error has been committed, by
referring to specific deficiencies in the document(s) in the record on
appeal (ROA), including any documents that the Secretary and/or the Board
may have relied on as having met the section 5103(a)/ 3.159(b)(1)
requirements.” Mayfield, 19 Vet.App. at 111. In all cases addressing
error in these notice requirements, we are required to “take due account
of the rule of prejudicial error” under 38 U.S.C. 7261(b)(2). See
Conway, 353 F.3d at 1375; Mayfield, 19 Vet.App. at 112-21. “[A]n error is
not prejudicial when the error did not affect ‘the essential fairness of
the [adjudication].’” Mayfield,19 Vet.App. at 116 (quoting McDonough
Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984)).
The VCAA also requires the Secretary to assist claimants. 38 U.S.C.
5103A. Section 5103A(a)(1) states that “the Secretary shall make
reasonable efforts to assist a claimant in obtaining evidence necessary to
substantiate the claimant’s claim for a benefit under a law administered
by the Secretary.” That assistance includes, but is not limited to,
obtaining service medical records and additional medical treatment records,
providing a medical examination where necessary, and prescribing
regulations to carry out the duty to assist. 38 U.S.C. 5103A. However
, “[n]othing in [section 5103A] shall be construed as precluding the
Secretary from providing such other assistance . . . to a claimant in
substantiating a claim as the Secretary considers appropriate.” 38 U.S.C
. 5103A(g).

B. Application of Notice Requirements to Elements of a Service-
Connection Claim
Section 5103(a) and 3.159(b) require VA to notify a service-
connection claimant of the evidence needed to substantiate the claim.
Although the term “claim” is not defined in title 38, U.S. Code, the
caselaw of the Federal Circuit and this Court has established that a
service-connection claim that provides for disability-compensation
benefits under 38 U.S.C. 1110 (war time) or 1131 (peacetime) consists
of the following five elements: “(1) [V]eteran 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.” Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998) (
emphases added); Fenderson v. West, 12 Vet.App. 119, 125 (1999). The
appellants and amicus NOVA argue that the term “claim” in section 5103(a)
means a claim for VA benefits and that the section 5103(a) notice
requirements do not apply solely to the element of service connection-one
element of the claim-but apply to all the elements that constitute the
claim because the claimant must “substantiate” all those elements to
succeed; and, therefore, the claim is not “substantiated” until all of the
elements have been “substantiated.” App. Har. Suppl. Br. at 5-7 (citing
Conway, supra, Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997), and
Vargas-Gonzales v. Principi, 15 Vet.App. 222, 227 (2001)); App. Din. Suppl.
Br. at 5-11; Amicus Br. at 19, 26, 28.
The Secretary does not dispute that a service-connection “claim”
consists of the five elements. His dispute relates to when a claim is
sufficiently “substantiated” so as to end his obligation to provide
section 5103(a) notice. There is Previous HitnoNext Hit dispute that elements 1, 2, and 3 are
necessary to substantiate service connection, and thus, notice clearly
must be provided on how those elements may be established. See Mayfield,
Pellegrini, and Quartuccio, all supra. The question is whether section
5103(a) and 3.159(b) notice is required for elements 4 (degree of
disability) and 5 (effective date of the disability).
Resolving the question of whether the section 5103(a) and 3.159
notice requirements apply to elements 4 and 5 of a service-connection-
claim requires an interpretation of the pertinent statutory and regulatory
language. Both section 5103(a) and 3.159 provide that, once a complete
or substantially complete application has been received, VA must notify
the claimant of any
information and medical or lay evidence that is necessary to “
substantiate the claim.” 38 U.S.C. 5103(a) (emphasis added); 38 C.F.R.
3.159.
Relying on Paralyzed Veterans of America v. Secretary of Veterans
Affairs, 345 F.3d 1334, 1345-46 (Fed. Cir. 2003) [hereinafter PVA v. Sec'y
], the Secretary asserts that the section 5103(a) notice requirement “is
not triggered if the Secretary is already in possession of information and
evidence to substantiate the claim.” Sec’y Din. Suppl. Br. at 5.
Essentially, he argues that a claim is substantiated when service
connection has been established and there is in the claims file sufficient
evidence to assign the claimant a disability rating and an effective date.
The Secretary maintains that section 5103(a) notice to the claimant is not
required to determine a higher initial disability rating or potentially
EED. Sec’y Har. Suppl. Br. at 1-10; Sec’y Din. Suppl. Br. at 4-12. He
argues that section 5103(a) applies at the beginning of the claims process
and that when an appeal is initiated by the filing of an that challenges
the adjudication of an element decided in association with an award of
service connection, the specific notice provisions imposed by VA appellate
procedures under 38 U.S.C. 7105(d)(1), apply and “supercede” the general
notice provisions of 38 U.S.C. 5103(a). Id. He also contends that an
NOD does not constitute an “application” for benefits within the meaning
of section 5103(a) and 38 C.F.R. 3.1(p) (2005), and that section 5103(a)
notice does not apply to appellate procedures. Sec’y Har. Suppl. Br. at 8;
Sec’y Din. Suppl. Br. at 6. The Secretary argues further that the SOC is
the means by which a claimant is notified of the need to submit evidence
to rebut adverse RO findings on effective dates and disability ratings.
Sec’y Har. Suppl. Br. at 4-5; Sec’y Din. Suppl. Br. at 9.
Responding to the Secretary’s position, Mr. Hartman and amicus NOVA
argue that the filing of an NOD does not trigger an end to the original
claims process and does not immediately place the claim in “appellate”
status in a way that would end VA’s duties to notify and assist the
claimant. They point out that after an NOD is filed, (1) VA may undertake,
pursuant to section 7105(d)(1), additional development of the claim, and (
2) the claimant has the option, pursuant to 38 C.F.R. 3.2600 (2005), to
have his claim reviewed de novo by a DRO. App. Har. Suppl. Br. at 8-9;
Amicus Br. at 22. They argue that filing an NOD does not end the
development and adjudication
of the claim but that the process of claim adjudication overlaps the NOD
and appellate processes. Id.
Because a service-connection claim is comprised of five elements,
see ante at 11, the Court holds that the notice requirements of section
5103(a) apply generally to all five elements of that claim. Therefore,
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 the elements of
the claim as reasonably contemplated by the application. This includes
notice that a disability rating and an effective date for the award of
benefits will be assigned if service connection is awarded. Section 5103(
a) and 3.159(b) notice must focus on statements, opinions, or documents,
i.e., “any information, and any medical or lay evidence, not previously
provided to the Secretary,” that can be offered by the claimant or
obtained by VA on the claimant’s behalf in order to be used by VA in
deciding each element of the claim. 38 U.S.C. 5103(a); 38 C.F.R. 3.
159(b).
Section 5103(a) notice, however, is not the only way for a claimant
to receive information on obtaining VA benefits. Under section 5103A, VA
is required to provide assistance to a claimant throughout the
adjudication process. This assistance coupled with VA’s cooperative, pro-
claimant philosophy allows for the full and fair development of every
reasonably raised claim by the veteran, and includes advising claimants of
pertinent statutes, regulations, and diagnostic codes, when evidence
suggests that they are applicable. See Douglas v. Derwinski, 2 Vet.App.
435, 442 (1992) (“[B]ecause the Board was confronted with evidence in this
case that raised the issue of entitlement to direct service connection
. . . , the Board was required . . . to inform the veteran that the legal
issue of direct service connection was presented and that its development
could entitle him to disability compensation.”).
1. Content of Notice on Disability Rating and Effective Date Elements
Section 3.103(a), title 38, Code of Federal Regulations, requires
that, after developing a claim, VA “render a decision which grants every
benefit that can be supported in law while protecting the interests of the
Government.” 38 C.F.R. 3.103(a) (2005) (emphasis added). In AB v.
Brown, this Court concluded that where the RO was adjudicating only the
question of disability rating after the Board had awarded service
connection “[a] claimant will generally be presumed to be seeking the
maximum benefit allowed by law and regulation, and it follows that such a
claim remains in controversy where less than the maximum available benefit
is awarded.” AB, 6 Vet.App. 35, 38-39 (1993). In Shoemaker v. Derwinski,
the Court held that “the Board had an obligation . . . where the veteran
specifically had requested an increase in his then 30% rating, to explain
why the veteran’s symptoms comported with the criteria of the 50%
disability rating but not with the criteria of the 70% or 100% disability
ratings.” Shoemaker, 3 Vet.App. 248, 253 (1992) (emphasis added).
Additionally, the Federal Circuit has observed in PVA v. Sec’y, that “the
statutory provision 5103(a), and therefore regulatory provision 3.159,
apply only when a claim cannot be granted in the absence of additional
necessary information described in the notice.” PVA v. Sec’y, 345 F.3d at
1345-46 (citation omitted) (emphasis added).
Neither section 5103(a) nor 3.159(b) prescribes with any
specificity the type of notice that is required, especially for disability
rating and effective date. Without specific plain language, we must look
to the legislative intent of Congress for clarification. The legislative
history of section 5103(a) expresses Previous HitnoNext Hit intent to require that section
5103(a) notice specify all potential disability ratings that can be
awarded, effective dates that may be assigned, or other claims that may be
filed where those issues are not reasonably raised in the application. On
September 25, 2000, Senator Rockefeller, then the ranking member of the
Senate Committee on Veterans’ Affairs, stated:
I felt that it was critical to include requirements that VA explain
to claimants what information and evidence will be needed to prove
their claim. VA will also be required to explain what information
and evidence it would secure (e.g., medical records, service medical
records, etc.) and what information the claimant should submit (e.g.,
marriage certificate, Social Security number, etc.). Currently, many
veterans are asked for information in a piecemeal fashion and don’t
know what VA is doing to secure other evidence. Better communication
will lead to expedited decisionmaking and higher satisfaction in the
process.
146 Cong. Rec. S9212 (Sept. 25, 2000). The information and evidence
contemplated by Senator Rockefeller is consistent with the statutory
requirement that VA notify a claimant “of any information, and any medical
or lay evidence, not previously provided to the Secretary that is
necessary to substantiate the claim.” 38 U.S.C. 5103(a). Requiring 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
statute. Furthermore, such specificity would burden VA’s claims system by
causing onerous delays in the processing and awarding of benefits,
contradicting the “expedited decisionmaking” and “higher satisfaction in
the process” envisioned by Senator Rockefeller.
The regulatory history is also informative. When 3.159 was
promulgated in August 2001, VA considered whether specific notice on all
elements of a claim was necessary under section 5103(a) and stated:
We received a comment stating that the regulation should require VA,
at the point in time when any evidence has been received in a claim
for compensation benefits, to determine whether that evidence
satisfies a necessary element of the claim and so advise the claimant
. We decline to revise the regulation to accommodate this suggestion;
such a regulatory requirement would necessitate multiple reviews of a
single claim and is administratively unworkable. It would, moreover,
increase the time it takes to decide a single claim, contributing to
the backlog of claims that await processing. The intent of Congress,
as indicated in the plain language of the VCAA and in the legislative
history, is that VA advise a claimant as to the evidence and
information necessary to substantiate a claim once VA receives a
substantially complete application. There is Previous HitnoNext Hit indication that
Congress intended that VA review each claim and advise the claimant
every time any evidence relevant to it is received. When a decision
is reached on a claim, the rating decision document will cite all
relevant evidence obtained and considered, as well as any relevant
evidence not obtained or considered. That rating decision document
is shared with the claimant as part of our notification procedures.
66 Fed. Reg. 45,620, 45,622. “[S]ubstantial deference is given to the
statutory interpretation of the agency authorized to administer the
statute.” Livesay v. Principi, 15 Vet.App. 165, 172 (2001) (en banc) (
quoting Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837, 844 (1984)); see also
Tallman v. Brown, 7 Vet. App. 453, 463-65 (1995). Therefore, we will
defer to “VA’s reasonable interpretation of a statutory provision when the
law does not directly address the precise question at issue.” Gallegos v.
Principi, 283 F.3d 1309, 1312 (Fed. Cir. 2002). Here, we consider VA’s
interpretation, as expressed in the explanatory statement of 3.159,
reasonable.
Nevertheless, as mentioned earlier, the notice requirements of
section 5103(a) apply generally to all five elements of a service-
connection claim and, as a consequence, we do not hold that VA does not
have to provide any notice regarding disability ratings or effective
dates when those elements are not directly made an issue by the claimant.
To the contrary, as explained below, general section 5103(a) and 3.159(b)
notice must be given on these elements of the service-connection claim.
Further, because the duty to provide notice is premised upon the receipt
of a substantially complete application for benefits, it follows that the
content of such notice must be defined by a reasonable and liberal reading
of the application actually filed.
Regarding the disability-rating element, the Court holds that the
Secretary, in order to comply with section 5103(a), must notify the
claimant of any information, and any medical or lay evidence, not
previously provided to the Secretary, that is necessary to establish a
disability rating for each of the disabilities contemplated by the claim
and allowed under law and regulation. Specifically, the Secretary must,
at a minimum, notify the claimant that, should service connection be
awarded, a schedular or extraschedular disability rating will be
determined by applying relevant diagnostic codes in the rating schedule,
found in title 38, Code of Federal Regulations, to provide a disability
rating from 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. Moreover, consistent with the statutory and
regulatory history, that notice must provide examples of the types of
medical and lay evidence that the claimant could submit (or ask VA to
obtain) that are relevant to establishing a disability-e.g., competent lay
statements describing symptoms, medical and hospitalization records,
medical statements, employer statements, job application rejections, and
any other evidence showing exceptional circumstances relating to the
disability. See 66 Fed. Reg. at 45,622. Concerning the effective-date
element, the Secretary must notify the claimant that the effective date of
an award of service connection and any assigned disability rating(s) will
be determined based on when VA receives the claim, when the evidence that
establishes the basis for a disability rating that reflects that level of
disability was submitted, or on the day after the veteran’s discharge
from service if the claim that is the basis for
which service connection is awarded is submitted within one year after
discharge. See Wright v. Gober, 10 Vet.App. 343, 347 (1997).
If the claimant’s application suggests there is specific information
or evidence necessary to resolve an issue relating to elements of a claim,
VA must consider that when providing notice and tailor the notice to
inform the claimant of the evidence and information required to
substantiate the elements of the claim reasonably raised by the
application’s wording. See Suttman v. Brown, 5 Vet.App. 127, 132 (1993) (
where application “reasonably reveals” that claimant is seeking a
particular benefit, VA is required to adjudicate the issue of claimant’s
entitlement to that benefit). In that regard, it is important to realize
that the appeal in AB was decided long before the enactment of the VCAA
and in an altogether different context-there, the Court was deciding
whether the veteran’s appeal, initiated by an NOD filed prior to the
Veterans’ Judicial Review Act, Pub. L. Previous HitNoNext Hit. 100-687, 402, 102 Stat. 4105,
4122 (1988) “was fully satisfied by the RO’s September 1988 award of a 30%
disability rating for PTSD, so that subsequent proceedings may be said to
have pertained to a separate claim as to which a new valid NOD could have
been filed.” AB, 6 Vet.App. at 38. The Court answered that question in
the negative after determining that nothing in the veteran’s NOD or
Substantive Appeal “evince[d] an intent to limit the issue on appeal to
entitlement to only a 30% rating.” Id. at 39.
Applying the broad holding in AB in the VCAA-notice context in order
to construe an award of benefits as a “partial award granted,” post at 36,
merely because a claimant disagrees with an assigned rating or effective
date after his claim has been substantiated, would be to divorce the VCAA
notice requirements from their rightful place within the administrative
adjudication scheme and to illogically intermingle them with the notice
and assistance required by the provisions of law relating to the VA
appeals process. That said, we leave open the question of what would
result if a claimant reasonably raised an issue regarding disability
rating and effective date in his initial application for benefits rather
than for the first time as part of disagreement with a decision.
2. Timing of Notice

Section 5103(a) notice must be provided to a claimant “[u]pon receipt
of a complete or substantially complete application.” 38 U.S.C. 5103(a) (
emphasis added); see 38 C.F.R.
3.159(b)(1) (“[w]hen VA receives a complete or substantially complete
application for benefits,” it will give requisite notice). In Pelegrini,
we found that nothing in the statute or regulations specified the precise
point during the VA claims process when section 5103(a) notice must be
given. Pelegrini, 18 Vet.App. at 119-20. Therefore, we held that, as to
the service-connection element of a claim, section 5103(a) notice and the
notice contemplated in 3.159(b)(1) must be provided prior to an initial
unfavorable decision by an AOJ. Id. at 120; see Mayfield, 19 Vet.App. at
110 (reiterating Pelegrini holding). We hold here that the timing
requirement enunciated in Pelegrini applies equally to the initial-
disability-rating and effective-date elements of a service- connection
claim. The general notice on those elements, as explained earlier, must
precede any initial adjudication on them. See Pelegrini, supra. Timely
notice will give the claimant a meaningful opportunity to act responsively
and “to participate effectively” in the development of the claim.
Mayfield, 19 Vet.App. at 120-21.
3. Section 5103(a) in the Statutory Scheme
Section 5103(a) notice must be considered within its place in the VA
adjudication scheme. See 2A N. Singer, Sutherland on Statutory
Construction 46:05 (6th ed. 2000) [hereinafter Sutherland] (“[T]he
court will not only consider the particular statute in question, but also
the entire legislative scheme of which it is a part.”); see also King v.
St. Vincent’s Hosp., 502 U.S. 215, 221 (1991) (holding that when
interpreting statute, court is required to look at context and provisions
of law as a whole); Imazio Nursery, Inc. v. Dania Greenhouses, 69 F.3d
1560, 1564 (Fed. Cir. 1995) (holding that all parts of a statute must be
construed together without according undue importance to a single or
isolated portion). Moreover, the VA statutory scheme “should be construed
so that effect is given to all its provisions, so that Previous HitnoNext Hit part will be
inoperative or superfluous, void or insignificant, and so that one section
will not destroy another unless the provision is the result of obvious
mistake or error.” Sutherland, 46:06; see also Splane v. West, 216 F.
3d 1058, 1068-69 (Fed. Cir. 2000).
Within the VA adjudicatory scheme, section 5103(a) is focused on
notice that is required to be provided to a claimant upon receipt of a
complete or substantially complete application for benefits and prior to
an initial adjudication. See Mayfield and Pelegrini, both supra. Once a
claimant’s disability is determined to be service connected, a disability
rating and an effective date are assigned. After the initial decision on
the claim, the Secretary, under section 5104(a), must provide to the
claimant timely notice of that decision including an explanation of the
procedure for obtaining review of the decision. 38 U.S.C. 5104(a). “In
any case where the Secretary denies a benefit sought, [the notice of that
denial] shall also include (1) a statement of the reasons for the decision,
and (2) a summary of the evidence considered by the Secretary.” 38 U.S.C
. 5104(b). Furthermore, regulatory 3.103(b) provides:
Claimants and their representatives are entitled to notice of any
decision made by VA affecting the payment of benefits or the granting
of relief. Such notice shall clearly set forth the decision made, any
applicable effective date, the reason(s) for the decision, the right
to a hearing on any issue involved in the claim, the right of
representation and the right, as well as the necessary procedures and
time limits, to initiate an appeal of the decision.
38 C.F.R. 3.103(b).
A claimant may disagree with the assigned rating or effective date by
filing an NOD. 38 U.S.C. 7105. Under section 7105, “where the claimant
. . . files [a timely NOD] with the decision of the [RO], [the RO] will
take such development or review action as it deems proper under the
provisions of regulations not inconsistent with this title. If such
action does not resolve the disagreement . . . [the RO] shall prepare a[n
SOC].” 38 U.S.C. 7105(d)(1). An SOC must include (1) a summary of the
evidence in the case pertinent to the issue or issues with which
disagreement has been expressed; (2) a citation to pertinent laws and
regulations and a discussion of how such laws and regulations affect the
agency’s decision; and (3) the decision on each issue and a summary of the
reasons for such decision. Id. Accordingly, once VA receives an NOD,
sections 5103A and 7105(d) and 3.103(b) require VA to take appropriate
additional development and review action and, if the disagreement
continues, to inform the claimant of how he or she can be awarded an EED
or a higher rating based on the evidence and the law. Thus, assuming
notice has been properly tailored to the application presented, the
statutory scheme contemplates that once 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 Previous HitnoNext Hit
longer required because the claim has already been substantiated.
This position is supported amply by the legislative history of the
VCAA, wherein the Committees on Veterans’ Affairs (Committees) noted their
intent that the term “substantiate . . . be construed to mean ‘tending to
prove’ or ‘to support.’” 146 Cong. Rec. H9912-15 (Oct. 17, 2000) (
Explanatory Statement by the House and Senate Committees on Veterans’
Affairs). The Committees went on to explain that “[i]nformation or
evidence necessary to substantiate a claim need not prove a claim-although
it eventually may do so when a decision on a claim is made-but it needs to
support a claim or give form and substance to a claim.” Id. In cases
where service connection has been granted and an initial disability rating
and effective date have been assigned, the typical service-connection
claim has been more than substantiated-it has been proven, thereby
rendering section 5103(a) notice Previous HitnoNext Hit longer required because the purpose
that the notice is intended to serve has been fulfilled.
Indeed, other statutory and regulatory provisions are in place to
ensure that a claimant receives assistance throughout the appeals process.
As held in AB and Shoemaker, both supra, a veteran contesting a rating or
effective date is presumed to be seeking the maximum benefit available
under the law. Therefore, VA is required, under sections 7105(d) and
5103A, to advise the appellant of what is necessary to obtain the maximum
benefit allowed by the evidence and the law. The SOC required by section
7105(d)(1) must be complete enough to allow the appellant to present
argument to the Board regarding any disagreement with the RO decision on
any element of the claim. 38 C.F.R. 19.29 (2005). The claimant may
submit additional evidence after receipt of the SOC for consideration by
both the RO and the Board. 38 C.F.R. 19.37 (2005). To hold that
section 5103(a) continues to apply after a disability rating or an
effective date has been determined would essentially render sections 7105(
d) and 5103A and their implementing regulations insignificant and
superfluous, thus disturbing the statutory scheme. See Imazio and Splane,
both supra.
4. Rule of Prejudicial Error

The parties have had ample opportunity in their pleadings and at oral
argument to contend that any notice error is prejudicial. See In Re: 38 U.
S.C. 7261(b)(2) and Mayfield v. Nicholson, 19 Vet.App. 103 (2005), Misc.
Previous HitNoNext Hit. 3-05, __ Vet.App. __ (June 2, 2005) (en banc order) (allowing, in
cases involving asserted notice noncompliance under 38 U.S.C. 5103(a)
and/or 38 C.F.R.
3.159(b)(1), supplemental briefing regarding requirements and standards
set forth in Mayfield, supra). The appellants argue that, where VA has
failed to comply with the VCAA notice requirements, the effect of the
error cannot be evaluated because of an inadequate record and that the
rule of prejudicial error, 38 U.S.C. 7261(b)(2), therefore cannot be
applied. App. Din. Suppl. Br. at 16 (relying on Wagner v. United States,
365 F.3d 1358, 1365 (Fed. Cir. 2004)); App. Har. Suppl. Br. at 12-13 (same
). The appellants and amicus NOVA further argue that if the rule of
prejudicial error is applied in section 5103(a) cases, the burden of
proving nonprejudice should be on VA because of the uniquely pro-claimant
nature of the VA adjudication system and VA’s duty to assist a claimant in
fully developing the record. App. Din. Suppl. Br. at 21-25; App. Har.
Suppl. Br. at 13-16; Amicus NOVA Br. at 39-46. Mr. Dingess further argues
that the burden should be on the Secretary to demonstrate that VA’s error
was not prejudicial because the Secretary is the party asserting that VA’s
error was not prejudicial. App. Din. Suppl. Br. at 25.
The Secretary, in contrast, argues that the burden lies with an
appellant and that an appellant must assert the argument or issue that he
or she would have raised if proper notice had been provided or must state
what material evidence he or she was unable to present because of the
notice error. Sec’y Har. Suppl. Br. at 11. The Secretary also contends
that, in order to show prejudice, an appellant must allege and demonstrate
that the outcome of the case was affected by the error. Sec’y Din. Suppl.
Br. at 15. The Secretary argues further that if an appellant is unable to
carry this burden then a notice error is not prejudicial. Sec’y Har.
Suppl. Br. at 15.
In Mayfield, we addressed how this Court “take[s] due account of the
rule of prejudicial error” under 38 U.S.C. 7261(b)(2) when considering
section 5103(a)/ 3.159(b)(1) notice errors involving a service-connection
claim, including the burdens on an appellant and the Secretary. Mayfield,
19 Vet.App. at 112-21. “Once [such] an appellant has demonstrated an
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.” Id. at 119. “
If an appellant has met the burden of going forward, by asserting with
specificity how an error was prejudical, it becomes the Secretary’s burden
to demonstrate that the error was clearly nonprejudicial to the appellant-
that is, that the error
is not one that affected ‘the essential fairness of the [adjudication]‘.”
Id. at 120 (citation omitted) (quoting McDonough Power Equip., 464 U.S. at
553-54).
In discussing prejudice in the notice context, we held in Mayfield as
follows:
[W]e conclude that in the section 5103(a) notice context an
appellant generally must identify, with considerable specificity, how
the notice was defective and what evidence the appellant would have
provided or requested the Secretary to obtain (e.g., a nexus medical
opinion) had the Secretary fulfilled his notice obligations; further,
an appellant must also assert, again with considerable specificity,
how the lack of that notice and evidence affected the essential
fairness of the adjudication. When the appellant has met the burden
of going forward with such a plausible showing of prejudice, then the
Secretary must demonstrate a lack of prejudice by persuading the
Court that the purpose of the notice was not frustrated-e.g., by
demonstrating (1) that any defect in notice was cured by actual
knowledge on the part of the appellant that certain evidence (i.e.,
the missing information or evidence needed to substantiate the claim)
was required and that she should have provided it, or (2) that a
reasonable person could be expected to understand from the notice
provided what was needed, or (3) that a benefit could not possibly
have been awarded as a matter of law.
Id. at 121. We also held that “if the asserted error is found by the
Court to exist and to be of the type that has the ‘natural effect’ of
producing prejudice, an appellant need not have pled prejudice and it is
the Secretary’s burden to demonstrate lack of prejudice in terms of the
fairness of the adjudication.” Id. (quoting Kotteakos v. United States,
328 U.S. 750, 760 (1946)). The Court further held that any error
regarding the first notice element was of the type that has the “natural
effect” of producing prejudice. Id. at 122. For late notice, second- and
third-element notice error, or error in fourth-element notice, we held
that such errors are not of the type that have the “natural effect” of
producing prejudice, and that an appellant, pursuant to Rule 28 of the
Court’s Rules of Practice and Procedures, must plead prejudice in terms of
the fairness of the adjudication. Id. at 122-23.
When content-complying but late notice is provided-such as at the
time of or after the RO decision-the claimant would, under Mayfield, have
to come forward with a plausible showing of how the essential fairness of
the adjudication was affected by that late notice. See 38 U.S.C. 7261(b)(
2); Mayfield, 19 Vet.App. at 128; see also Conway, supra. If the claimant
meets that burden, then the Secretary has the burden to demonstrate that
the late notice was clearly nonprejudicial to the claimant-that is, that
the late notice did not affect the essential fairness of the
adjudication. See Mayfield, supra. Whether the claimant is prejudiced
by any late section 5103(a) notice depends on the factual situation in a
particular case. See id. at 128-29 (holding that claimant was not
prejudiced by late section 5103(a) notice where fairness of VA
adjudication was unaffected because claimant had meaningful opportunity to
participate effectively in VA’s processing of her claim as demonstrated by
her actions during pendency of claim at VA to obtain missing evidence in
order to substantiate claim).
C. Application of Notice Requirements to Instant Cases
1. Dingess Appeal

a. Duty to Notify Regarding PTSD Claim. In May 2000, the RO awarded
Mr. Dingess service connection for PTSD and assigned him a temporary total
disability rating for the duration of his in-patient treatment program and
a 10% rating thereafter, effective from June 22, 1999. Din. R. at 38, 220-
26. Thus, Mr. Dingess’ PTSD claim was substantiated in May 2000 and,
therefore, at the time of the enactment of the VCAA, VA Previous HitnoNext Hit longer had any
further duty to notify Mr. Dingess on how to substantiate his PTSD claim.
Moreover, as stated above, his filing an NOD as to disability rating did
not trigger additional section 5103(a) notice. Rather, VA was then
required to fulfill its statutory duties under 38 U.S.C. 5104 and 7105
and regulatory duties under 38 C.F.R. 3.103. Therefore, we hold that
the Board did not commit prejudicial error in concluding that the May 2001
VCAA-notice letter the Secretary had provided to Mr. Dingess complied with
section 5103(a) and 3.159(b) because, after his PTSD claim was
substantiated in May 2000, such notice was not required. Cf. Mayfield, 19
Vet.App. at 129 (“[w]here the claimant has received compliant notice, any
Board reasons-or-bases deficiency in discussing how section 5103(a) . . .
notice has been satisfied in this case would of necessity be
nonprejudicial to the claimant.”).
b. VA’s Duties Regarding Appeal of PTSD Claim. As required under
sections 5104(b) and 7105(d) and 3.103(b), VA provided Mr. Dingess with
the January 2001 DRO decision (Din. R. at 390-92) and January 2001 SOC (Id.
at 376-88). The January 2001 DRO decision, provided the following
explanation regarding its denial of a higher rating than 30%:
A higher evaluation of 50[%] is not warranted unless there is reduced
reliability and productivity due to such symptoms as: flattened
affect; circumstantial, circumlocutory, or stereotyped speech; panic
attacks more than once a week;
difficulty in understanding complex commands; impairment of short-
and long-term memory (e.g., retention of only highly learned material,
forgetting to complete tasks); impaired judgment; impaired abstract
thinking; disturbances of motivation and mood; difficulty in
establishing and maintaining effective work and social relationships.

On exam[ination Mr. Dingess] was alert and oriented in all three
spheres, in good contact with routine aspects of reality and showed
Previous HitnoNext Hit signs or symptoms of psychosis. He spoke in normal tones but his
rhythm and rate were somewhat subdued and withdrawn. Conversation
was generally relevant, coherent, and goal directed. He seemed
rather isolated, sad, withdrawn, and very low keyed and passive. He
described himself in a rather detailed manner and lent the impression
of an individual who is more of a victim than he really is. Mood
appeared to be depressed and his affect was under responsive, though
certainly not flattened. Memory and intellect appeared to be intact,
and insight and judgment for major things did not appear to be
impaired. He is shown to have [PTSD], chronic, moderate and chronic
polysubstance abuse, in short remission . . . [and he] showed an
antisocial personality disorder. GAF was 60. Outpatient treatment
reports . . . show ongoing psychiatric treatment, and note [the
veteran] does not have suicidal or homicidal thoughts.
Din. R. at 390-91. The January 2001 SOC, under the heading “Pertinent
Laws; Regulations; Ratings Schedule Provisions,” set forth the relevant
diagnostic code (DC) for PTSD (38 C.F.R. 4.130, DC 9411 (2000)), and
included a description of the rating formula for all possible schedular
ratings for PTSD from 0% to 100%. Din. R. at 384-86. The decision and
the SOC thus informed Mr. Dingess that he did not have evidence to support
a 50% schedular rating and told him what was needed not only to achieve a
50% schedular rating, but also to obtain all schedular ratings above the
30% rating that the RO had assigned. In a letter accompanying the January
2001 SOC (Din. R. at 376) and a notice of decision letter sent that same
month to Mr. Dingess (d. at 395-98), the RO, as required, also notified
him of how to appeal the decision on his claim. Both letters provided Mr.
Dingess the forms he needed to complete the appeal his case. Therefore,
VA complied with the procedural statutory requirements of 38 U.S.C.
5104(b) and 7105(d), as well as the regulatory requirements in 3.103(b),
and continued to assist Mr. Dingess, under section 5103A, by informing him
of what was necessary to achieve a higher initial rating for his service-
connected PTSD.
c. Duty to Notify Regarding TDIU Claim. The record before the Board
revealed that, in his June 1999 claim, Mr. Dingess stated that previously
he had been self-employed but at the time of the
claim, because of his service-connected disabilities, was not working.
Din. R. at 63. However, an October 1999 VA PTSD examination revealed that
Mr. Dingess had stated that he continued to operate his furniture and
appliance shop from his garage at that time. Id. at 103. Based on this
latter statement, the RO denied Mr. Dingess’ TDIU claim in May 2000. Id.
at 220-25. He appealed that decision. Id. at 231. At the time of the
enactment of the VCAA, Mr. Dingess’ TDIU claim remained unsubstantiated
and was on appeal to the Board; therefore, he was entitled to section 5103(
a) and 3.159(b) notice on that claim. See Pelegrini, supra. The record
does not contain any document that either satisfies those notice
requirements or in any way reveals that Mr. Dingess received such notice.
See Din. R. 1-464. Thus, VA erred by not providing adequate section 5103(
a) and 3.159(b) notice on his TDIU claim. See Mayfield and Quartuccio,
both supra. Having found error, we examine whether this error was
prejudicial. See Mayfield and Conway, both supra.
Because the natural effect of first-element notice error is to
produce prejudice, the Secretary has the “burden of demonstrating that
there was clearly Previous HitnoNext Hit prejudice . . . based on any failure to give notice.”
Mayfield, 19 Vet.App. at 122. Following the Federal Circuit’s remand in
Conway, supra, the Secretary filed a supplemental brief in which he
addresses the issue of prejudice in the context of section 5103(a). Sec’y
Din. Suppl. Br. at 12-18. Despite the opportunity to argue lack of
prejudice, the Secretary did not so argue but, rather, maintained that the
appellant had failed to satisfy what the Secretary contended was the
appellant’s burden of demonstrating prejudice. The Secretary did not
argue the alternative position, that is, that the Secretary had met his
burden of demonstrating a lack of prejudice. Even after Mr. Dingess
argued in his supplemental brief that once a section 5103(a) notice error
has been established, the Secretary bears the burden of demonstrating that
the error was not prejudicial, the Secretary still did not argue that
there was a lack of prejudice. See Sec’y Din. Suppl. Br. at 21-25.
The Secretary has not persuaded us that the purpose of the notice
requirement was not frustrated-by demonstrating, e.g., that (1) any defect
in notice was cured by actual knowledge on the part of the appellant that
certain evidence was required and that he should have provided it in order
to obtain an extraschedular rating; (2) a reasonable person could be
expected to understand from the notice provided what was needed; or (3) an
extraschedular rating could not possibly have been
awarded as a matter of law. See Mayfield, 19 Vet.App. at 121. Therefore,
the Secretary has not met his burden of demonstrating that the notice
error was not prejudicial. Accordingly, the Board erred in concluding
that the Secretary fulfilled his statutory and regulatory obligations as
to the first notice requirement in connection with the extraschedular
component of the disability-rating element. Our conclusion that the
Secretary failed to provide the first-notice requirement necessarily
subsumes a conclusion that the Secretary also failed to notify Mr. Dingess
about who would be responsible for seeking to obtain the information and
evidence required by the first notice requirement. Thus, because of these
errors, the TDIU-rating claim and the matter of an extraschedular rating
under 4.16 will be remanded for complying notice and readjudication.
d. Duty to Assist. Under 38 U.S.C. 5103A, the Secretary “shall
make reasonable efforts to assist a claimant in obtaining evidence
necessary to substantiate the claimant’s claim for a benefit under a law
administered by the Secretary.” The Secretary’s duty to assist a claimant
includes, among other things, “providing a medical examination or
obtaining a medical opinion when such an examination or opinion is
necessary to make a decision on the claim.” 38 U.S.C. 5103A(d)(1); see
38 C.F.R. 3.159(c) (2005). Additionally, 38 C.F.R. 4.1 (2005)
requires that when applying the rating schedule, “accurate and fully
descriptive medical examinations are required, with emphasis upon the
limitation of activity imposed by the disabling condition.” Further, 38 C.
F.R. 4.2 (2005) requires that if an examination report used for rating a
service-connected disability does not contain sufficient detail, “it is
incumbent upon the rating board to return the report as inadequate for
evaluation purposes.” See Bowling v. Principi, 15 Vet.App. 1, 12 (2001) (
emphasizing Board’s duty to return inadequate examination report). Where
the record does not adequately reveal the current state of the claimant’s
disability, VA must assist by providing the claimant a thorough and
contemporaneous medical examination that considers the claimant’s prior
medical examinations and treatment. See Suttmann, 5 Vet.App. at 138;
Proscelle v. Derwinski, 2 Vet.App. 629, 632 (1992); Green v. Derwinski, 1
Vet.App. 121, 124 (1991); 38 C.F.R. 4.1.
Mr. Dingess contends that the VA PTSD medical examinations that he
received in October 1999 (Din. R. at 98-104) and November 2000 (id. at 371-
74) were inadequate because they did not address sufficiently the effect
of his PTSD on his ability to work. App. Din. Br. at 3. We are not so
persuaded. Both examinations did address the effect of Mr. Dingess’ PTSD
on his ability to work. See Din. R. at 98-104, 371-74. In the 1999
examination, the examiner noted: “While the veteran does appear to be
suffering from [PTSD], he seems able to function relatively well and
continues to run his own used furniture and appliance shop out of his
garage.” Id. at 103. The 2000 examiner stated:
His lack of concentration and his inability to focus his effort as
well as his lack of desire to become involved with people, have
caused him to end his small business of selling used appliances and
furniture out of his house. . . . He believes he came back from
Vietnam a changed person and that this led to his history of drug and
alcohol abuse, his history of illegal behaviors[,] and his inability
to obtain and maintain substantially gainful employment.
Id. at 372. The examiner concluded that Mr. Dingess was competent and
employable. Id. at 374. The Board relied on that conclusion in
determining that the preponderance of the evidence was against awarding Mr.
Dingess a TDIU rating. Id. at 11. We are satisfied that the Secretary
fulfilled his duty to assist under section 5103A(d)(1) by providing Mr.
Dingess with thorough and contemporaneous medical examinations, which
adequately discussed the effect of Mr. Dingess’ service-connected PTSD on
his ability to work, as required under 4.2. See 38 C.F.R. 3.159; see
also Green, supra (holding that RO must provide “a thorough and
contemporaneous medical examination, one which takes into account the
records of prior medical treatment, so that the evaluation of the claimed
disability will be a fully informed one”). The Board therefore did not
err by relying on those examinations.
As we concluded above, however, we must remand the TDIU matter
because of the notice error. Just as the Secretary must provide complying
notice, VA must also ensure that the record includes a contemporaneous
medical opinion regarding whether Mr. Dingess possesses any occupational
impairment as defined by 4.16(a) and (b). See 38 U.S.C. 5103A(d); 38
C.F.R. 4.1; see also Caffrey v. Brown, 6 Vet.App. 377, 380-81 (1994) (
concluding that new examination was required because prior examination,
conducted 23 months before Board decision, was too remote to be considered
contemporaneous for the veteran’s increased-rating claim); Proscelle,
supra (holding that VA examination must be conducted where “record does
not adequately reveal the current state of the claimant’s disability”);
Green, supra.
Because the TDIU matter is being remanded for further adjudication,
the Court will not address the remaining arguments raised by Mr. Dingess
regarding his claim for a TDIU rating. See Best v. Principi, 15 Vet.App.
18, 20 ( 2001) (“A narrow decision preserves for the appellant an
opportunity to argue those claimed errors before the Board at the
readjudication, and, of course, before this Court in an appeal, should the
Board rule against him.”) On remand, he is free to submit additional
evidence and argument and the Board must consider any such evidence or
argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Board shall proceed expeditiously, in accordance with 38 U.S.C. 7112
. Should the Board rule against Mr. Dingess and should he appeal, he will
have the opportunity to present any allegations of error to this Court.
See Best, supra.
e. Reasons or Bases. Mr. Dingess argues that the Board failed to
provide an adequate statement of reasons or bases under 38 U.S.C. 7104(d)(
1) because it did not address whether his PTSD claim warranted
extraschedular consideration under 38 C.F.R. 3.321(b)(1). App. Din. Br.
at 2-5. The Secretary maintains that the Board was not obligated to
discuss 3.321(b)(1) because the record contains Previous HitnoNext Hit competent evidence
that Mr. Dingess’ disabilities cause “‘such an exceptional or unusual
disability picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to render impractical
the application of the regular schedular standards.’” Sec’y Din. Suppl.
Br. at 19-20 (quoting 38 C.F.R. 3.321(b)(1)).
Before deciding a claim, the Board is required to consider all
relevant evidence of record and to consider and discuss in its decision
all “potentially applicable” provisions of law and regulation. Schafrath
v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. 7104(a); Weaver
v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). The Board is
also required to include in its decision a written statement of the
reasons or bases for its findings and conclusions on all material issues
of fact and law presented on the record. See 38 U.S.C. 7104(d)(1);
Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet.
App. 49, 56-57 (1990). That statement must be adequate to enable an
appellant to understand the precise basis for the Board’s decision, as
well as to facilitate review in this Court. See Allday and Gilbert, both
supra. In complying with this requirement, the Board must analyze the
credibility and probative value of the evidence, account for the evidence
that
it finds persuasive or unpersuasive, and provide the reasons for its
rejection of any material evidence favorable to the veteran. See Caluza v.
Brown, 7 Vet.App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996) (
table); Gilbert, supra.
Under VA regulation
[r]atings shall be based as far as practicable, upon the average
impairments of earning capacity with the additional proviso that the
Secretary shall from time to time readjust this schedule of ratings
in accordance with experience. To accord justice, therefore, to the
exceptional case where the schedular evaluations are found to be
inadequate, the Under Secretary for Benefits or the Director,
Compensation and Pension Service, upon field station submission, is
authorized to approve on the basis of the criteria set forth in this
paragraph an extra-schedular evaluation commensurate with the average
earning capacity impairment due exclusively to the service-connected
disability or disabilities. The governing norm in these exceptional
cases is: A finding that the case presents such an exceptional or
unusual disability picture with such related factors as marked
interference with employment or frequent periods of hospitalization
as to render impractical the application of the regular schedular
standards.
38 U.S.C. 3.321(b). In order to determine whether the Board erred by
not discussing 3.321(b)(1), we must first determine whether Mr. Dingess
specifically sought extraschedular evaluation. The Board is required to
address every issue “reasonably raised from a liberal reading of the
documents or oral testimony submitted prior to the [Board] decision.”
Floyd v. Brown, 9 Vet.App. 88, 96 (1996); see EF v. Derwinski, 1 Vet.App.
324, 326 (1991); Myers v. Derwinski, 1 Vet.App. 127, 129 (1991). “‘Where
such review . . . reasonably reveals that the claimant is seeking a
particular benefit, the Board is required to adjudicate the issue of the
claimant’s entitlement to such a benefit or, if appropriate, to remand the
issue to the [RO] for development and adjudication of the issue; however,
the Board may not simply ignore an issue so raised.’” Beverly v.
Nicholson, 19 Vet.App. 394, 404-05 (2005) (quoting Suttman, 5 Vet.App. at
132); see also Brannon v. West, 12 Vet.App. 32, 34 (1998). However, the
Board is not required to anticipate a claim for extraschedular evaluation
when it was neither specifically nor reasonably raised. See Talbert v.
Brown, 7 Vet.App. 352, 356-57 (1995) (holding that Board is not required
to do “prognostication” but to review issues reasonably raised by
Substantive Appeal).
Mr. Dingess raises for the first time in his appeal to the Court a
request for extraschedular consideration. See App. Din. Br. at 2-5; see
also Din. R. at 1-464. In fact, in his January 2001 appeal
to the Board for a higher initial PTSD disability rating and his August
2001 appeal to the Board regarding the TDIU determination, Mr. Dingess,
through counsel, expressly limited his claim to one for “an increased
schedular rating for his service-connected condition of PTSD.” Din. R. at
400, 403, 456 (emphasis added). Although VA is required, with respect to
all pro se pleadings, to give a sympathetic reading to a veteran’s filings,
see Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing
Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)), Mr. Dingess
has been represented by counsel since January 2001 (Din. R. at 405-07) and
prior to that he was represented by veterans service organizations (Din. R.
at 68, 220, 337, 390). Even considering a liberal reading of all
documents and oral testimony in the record, including Mr. Dingess’ initial
application, NOD, and Substantive Appeal, he has never revealed any intent
to seek extraschedular consideration under 3.321(b)(1). See Beverly and
Suttman, both supra. Accordingly, Mr. Dingess has not requested
extraschedular consideration under 3.321(b)(1).
We now review whether the Board erred in failing to address sua
sponte extraschedular consideration under 3.321. See Smallwood v. Brown,
10 Vet.App. 93, 98 (1997) (Board must address “the issue of whether an
extra-schedular rating is warranted [when it] is reasonably raised by the
Board’s own factual findings”); see also Moody v. Principi, 360 F.3d 1306,
1310 (Fed. Cir. 2004) (“VA [is required to] give a sympathetic reading to
the veteran’s filings by ‘determining all potential claims raised by the
evidence, applying all relevant laws and regulations.’” (quoting Szemraj,
357 F.3d at 1373)); Grantham v. Brown, 8 Vet.App. 228, 235 (1995) (
although extraschedular consideration under 3.321(b)(1) “was not raised
by the veteran, ‘the [Board was] not free to ignore its own regulations[]‘ [
and] the Board should have given the veteran extra-schedular consideration
or explained why it is not applicable” (citations omitted)).
In Sanchez-Benitez, the Federal Circuit vacated this Court’s holding
that remand was not required for consideration of 3.321(b)(1). Sanchez-
Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Mr. Sanchez-Benitez
had argued that VA erred by failing to discuss 3.321(b)(1) in light of a
VA General Counsel opinion (regarding the precise DC in that matter) that
stated that 3.321(b)(1) must be considered if there was evidence of “
exceptional or unusual circumstances.” Id. at 1362. The Federal Circuit
held that this Court erred when “on its own, [it] found that there was
nothing in the
record to suggest that Mr. Sanchez-Benitez’s case was ‘exceptional or
unusual.’” Id. at 1363. Given this holding by the Federal Circuit, we
are mindful that we may not, sua sponte, review the record and make
factual determinations in the first instance as to whether a veteran’s
disability picture presents such an exceptional or unusual case as to
render the schedular evaluations inadequate. However, we do not read
Sanchez-Benitez to limit our ability, and in fact our obligation, to
review the question of whether the Board failed to satisfy its reasons or
bases requirement under section 7104(d)(1) by not considering or
discussing 3.321(b)(1). To interpret Sanchez-Benitez to the contrary
would require the Court to remand every matter where a claimant argues in
the first instance on appeal that the Board’s reasons or bases were
inadequate because 3.321(b)(1) was not discussed. Thus, in cases such
as Mr. Dingess’, the Court’s review is limited to the facts found by the
Board and to a determination of whether, based on those facts, a claim for
3.321(b)(1) extraschedular consideration was reasonably raised and
should have been discussed. See Smallwood v. Brown, 10 Vet.App. 93, 98 (
1997) (where 3.321(b)(1) claim is reasonably raised by Board’s own
factual findings, its failure to address referral issue in its decision
constitutes error).
Here, the Board found that Mr. Dingess’ service-connected PTSD
symptoms produce Previous HitnoNext Hit more than a moderate disability and that “the service-
connected PTSD alone is not shown to prevent the veteran from obtaining
and maintaining substantially gainful employment consistent with his
education and employment experience.” Din. R. at 2-3. The Board found
that, prior to May 1999, Mr. Dingess had Previous HitnoNext Hit previous hospital admissions
or psychiatric treatment; that he received outpatient treatment at a VA
mental health clinic in May 1999; that he was admitted in June 1999 to a
VA substance abuse program from which he was discharged in July 1999; and
that he was admitted to a 12-week VA inpatient program for treatment of
substance abuse and PTSD symptoms. Id. at 6-7. The Board noted that Mr.
Dingess revealed in a November 2000 VA medical examination that he had
decided to end his small business because of his lack of concentration and
his lack of desire to become involved with people and that the examiner
found him to be competent and employable. Id. at 8. The Board
specifically found: “Notwithstanding the veteran’s recent decision to end
his business, the evidence of record does not show that he has had
difficulty establishing or maintaining effective work and social
relationships.” Id. at 9. Based, therefore, not on any factual
determination
by the Court, see Sanchez-Benitez, supra, but rather upon the
Board’s factual determinations, the Court holds that Mr. Dingess’
disability picture is not so exceptional or unusual as to reasonably raise
the issue of extraschedular consideration under 3.321(b)(1). Thus,
because 3.321(b)(1) was neither specifically sought by Mr. Dingess nor
reasonably raised by the facts found by the Board, the Board did not err
in not discussing 3.321(b)(1) in its statement of reasons or bases. Cf.
Smallwood and Grantham, both supra.
2. Hartman Appeal
a. Duty to Notify Regarding PTSD Claim. Because the RO decision
awarding service connection and assigning a disability rating and an
effective date for Mr. Hartman’s PTSD was issued in August 1999, prior to
the November 9, 2000, enactment of the VCAA, the RO did not err by not
providing notice before that decision. Nevertheless, VA’s regulations
implementing the VCAA were made retroactively applicable to all cases
still pending before VA as of November 9, 2000. Mr. Hartman’s claim was on
appeal before VA as of November 9, 2000, and thus was pending at VA at the
time of the VCAA’s enactment. Therefore, the VCAA applied to his claim.
See Mayfield, 19 Vet.App. at 128; Pelegrini, supra.
However, as with Mr. Dingess’ claim, section 5103(a) notice was not
required for Mr. Hartman’s PTSD claim because that claim had been
substantiated before November 9, 2000. In August 1999, he was awarded
service connection for his PTSD, and assigned a 70% disability rating with
an April 15, 1999, effective date (Har. R. at 144-48), and in February
2000, the RO awarded a TDIU rating, effective from April 15, 1999 (id. at
177-79). Therefore, the Board did not commit prejudicial error by
concluding that VA had satisfied its section 5103(a) and 3.159(b) notice
requirements because that notice was not required after his PTSD claim was
substantiated in August 1999. Cf. Mayfield, 19 Vet.App. at 129.
b. VA’s Duties Regarding Appeal of PTSD Claim. As required under
sections 5104(b) and 7105(d) and 3.103(b), VA provided Mr. Hartman with
July 1999 and February 2000 RO decisions (Har. R. at 144-48, 176) and a
May 2001 SOC (id. at 184). In the July 1999 RO decision, the RO stated: “
Entitlement to benefits sought is established from the date of the claim [
April 15, 1999].”
Id. at 148 (emphasis added). January 2000 correspondence from the RO to
Mr. Hartman informed him:
[VA] received [his] original claim for entitlement to disability
compensation for [PTSD] on September 15, 1986. On December 18, 1986, [
VA] denied [his] claim because [he] did not report for a [scheduled
VA medical] examination . . . . [VA] received [his] claim for
reconsideration of the prior denial of PTSD on April 15, 1999. [The
RO] decision of July 30, 1999, granted entitlement to PTSD effective
April 15, 1999, the date we received your claim. Under current law,
the effective date cannot be earlier than the date the claim was
received by VA.
Id. at 174. The May 2001 SOC set out the provisions of 38 C.F.R. 3.400 (
2000), including 3.400(a) (regarding facts found) and 3.400(b)(2)(i) (
regarding assigning day following discharge as effective date based on
receipt of application within one year after date of discharge), and 38 U.
S.C. 3.401 (2000) and cited 38 U.S.C. 5110 as the authority for these
provisions. Id. at 185- 94. Under the section heading “Reasons and Bases
,” the May 2001 SOC cited to 38 C.F.R. 3.400(b)(2)(i) and explained the
criteria governing effective dates for direct service connection for
disability-compensation claims. Id. at 194. The SOC noted that the RO “
decision of [July 30, 1999,] granted service connection for [PTSD] from
the date of the claim which was received [April 15, 1999].” Id. The SOC
thus informed Mr. Hartman that the effective date assigned was based on
the date on which VA had received his claim and that to receive an EED the
claim would have to have been received within one year after separation
from service, or VA would have to have received the claim earlier than
April 15, 1999. In letters accompanying the July 1999 RO decision (id. at
144-45), the February 2000 RO decision (id. at 176), and the May 2001 SOC (
id. at 185), the RO notified Mr. Hartman of how to appeal his claim as
required under 3.103(b), and all of the letters included attachments of
the necessary forms that he would need to complete to start the appellate
process. Therefore, VA complied with the procedural statutory
requirements of 38 U.S.C. 5104(b) and 7105(d), as well as the
regulatory requirements in 3.103(b), and continued to assist Mr. Hartman,
under section 5103A, by informing him of what was necessary to achieve an
EED for his service- connected PTSD.
To the extent that Mr. Hartman asserts that his mental illness should
toll the one-year period for filing his NOD (App. Har. Suppl. Br. at 13-15
), we reject that argument. There is Previous HitnoNext Hit indication
in the ROA that an NOD was actually filed in this case. See Har. R. at 1-
207. In McPhail v. Nicholson, we held that, even assuming that equitable
tolling applied to the one-year period for filing an NOD, there was Previous HitnoNext Hit
basis for seeking equitable tolling of the NOD-filing period where a
claimant did not file an NOD during the one-year period commencing when he
or she first learned of the RO decision to be challenged and never
submitted an NOD at all. McPhail, 19 Vet.App. 30, 34 (2005) (per curiam
order), appeal docketed, Previous HitNoNext Hit. 05-7118 (Fed. Cir. Mar. 10, 2005). As stated
in McPhail, “[e]quitable tolling of a time period is generally available
to perform an action within that period only if the action had actually
been performed.” Id.
Mr. Hartman’s argument that the Board erred by not finding that VA,
by not obtaining the medical records from the VA facilities identified in
his November 1986 letter to VA, had, under Hayre, supra, committed a grave
procedural error (App. Har. Br. at 8-10 (citing Har. R. at 94)), is also
rejected. Mr. Hartman acknowledges that, after the February 2002 Board
decision, the Federal Circuit in Cook v. Principi, 318 F.3d 1334 (Fed. Cir.
2002) (en banc), overruled the grave-procedural-error concept in Hayre.
He asserts, however, that he is making the argument to protect his
interests in the event of a reversal of Cook, in which a petition for a
writ of certiorari had been filed but not yet ruled on at the time that he
filed his brief. App. Har. Br. at 8-10. In June 2003, the U.S. Supreme
Court denied that petition. Cook v. Principi, 539 U.S. 926 (2003).
Accordingly, his argument on grave procedural error is now unavailing.

IV. CONCLUSION
On the basis of the foregoing analysis, the ROA, and the parties’
pleadings, and having “take[n] due account of the rule of prejudicial
error” under 38 U.S.C. 7261(b)(2), that part of the October 2001 Board
decision that denied Mr. Dingess an initial disability rating higher than
30% is AFFIRMED. That part of the October 2001 Board decision that denied
Mr. Dingess TDIU is VACATED and that matter is REMANDED for expeditious
further development and issuance of a readjudicated decision supported by
an adequate statement of reasons or bases.
Additionally, on the basis of the foregoing analysis, the ROA, and
the parties’ pleadings, and having “take[n] due account of the rule of
prejudicial error” under 38 U.S.C. 7261(b)(2), the Court
in Hartman will withdraw the July 22, 2004, single-judge dispositive
order. Mr. Hartman has not demonstrated that the Board committed
prejudicial error in its findings of fact, conclusions of law, compliance
with procedural requirements, articulation of reasons or bases, or
application of the equipoise standard that would warrant reversal or
remand. Therefore, the February 2002 Board decision in Hartman is
AFFIRMED.

KASOLD, Judge concurring in part and dissenting in part: As so
clearly stated in the Court’s opinion, the question before the Court is “
whether the notice provisions of [section 5103(a)] apply to the assignment
of an initial disability rating (Dingess appeal) and effective date (
Hartman appeal) in association with an award of VA service-connection
disability compensation.” Ante at 2. The Court holds today that they do,
as do the pleading requirements established in our precedential decision
in Mayfield v. Nicholson, 19 Vet.App. 103 (2005), argued, Previous HitNoNext Hit. 05-7157 (Fed.
Cir. Feb. 6, 2006). See ante at 11-14. I fully concur. I also fully
agree with the holdings of the Court that “(1) section 5103(a) requires
notice to a claimant of how a VA service-connection claim may be
substantiated as to all five elements of that claim and (2) that certain
standards apply for the timing and content of that notice,” ante at 2, as
further described in sections III.A, B.1, and B.2. And, I agree with the
resultant vacatur, in part, and affirmance, in part, of the Dingess Board
decision and the affirmance of the Hartman Board decision. See ante at 35
. However, I must respectfully dissent in part for the reasons set forth
below.
I dissent from the narrow exception created today for claims
involving a partial award granted in an initial adjudication that occurred
prior to the November 9, 2000, enactment of the VCAA, which, inter alia,
amended section 5103(a) to explicitly impose the duty on the Secretary to
notify a claimant what information or evidence is necessary to
substantiate the claim. See ante 24, 33 (finding Previous HitnoNext Hit error because the
current section 5103(a) requirements were not in effect when the claims
were substantiated and, because the claim was substantiated, the
Secretary’s regulatory retroactive application of the section 5103(a)
notice requirements was inapplicable). The creation of this narrow
exception is unwarranted. It is the Secretary, not the Court, that has
been given the authority to write regulations implementing law. See 38 U.
S.C. 501(a) (“The Secretary has authority to prescribe all
rules and regulations which are necessary or appropriate to carry out the
laws administered by the Department and are consistent with those laws
. . . .”).
In this instance, the Secretary explicitly made the regulations
implementing section 5103(a) applicable to all claims pending “before VA”
upon the enactment of the VCAA or any new claim filed thereafter. See 66
Fed. Reg. 45,620, 45,629 (Aug. 29, 2001). Although the Secretary
expressly carved out exemptions to the retroactive application of the VCAA,
he did not exempt claims that had been partially granted prior to the
enactment of the VCAA. Furthermore, the Board considered section 5103(a)
applicable, as evidenced in the cases before us today. See Din. R. at 3-4 (
Dingess Board reviewed notice for Secretary’s compliance with section 5103(
a)); Har. R. at 3-4 (Hartman Board, same). Yet, absent any Chevron
analysis, the Court today creates an exception to the Secretary’s
regulation. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 843-45 (1984) (Court gives deference to executive
department’s reasonable interpretation of statutory scheme). By making
the regulations implementing the revised section 5103(a) applicable to all
claims then pending “before VA” upon the enactment of the VCAA, the
Secretary obviously intended to benefit claimants by making sure adequate
notice on how to substantiate a claim was provided to each veteran, Previous HitnoNext Hit
matter where in the administrative process that claim hailed. See also
Pelegrini v. Principi, 18 Vet.App. 112, 120 (2002) (“the appellant has the
right on remand [from the Court to the Board] to VCAA content-complying
notice and proper subsequent VA process”). It was a proper exercise of
the Secretary’s authority, and I perceive Previous HitnoNext Hit basis for the Court’s
creation of an exception thereto.
Moreover, the creation of this narrow exception is not only
unwarranted, it is unnecessary. Our traditional approach of assessing
error and prejudice suffices. As to the PTSD claims of both Mr. Dingess
and Mr. Hartman, there was Previous HitnoNext Hit error for the failure of the Secretary to
provide either claimant with section 5103(a) notice prior to the initial
adjudication of the claims because the section 5103(a) notice requirements
had not yet become law. See Pelegrini, 18 Vet.App. at 120. On the other
hand, we should hold that the Secretary erred by failing to provide Mr.
Dingess and Mr. Hartman with the required notice before issuance of a
subsequent, post-VCAA, adjudication of their claims. See id. at 120, 122-
23. Applying the rule of prejudice, however, we should further hold that
the notice received
throughout the appellate process in each case rendered any section 5103(a)
error nonprejudicial because it permitted both Mr. Dingess and Mr. Hartman
the opportunity to fully participate in the processing of their respective
claims. See Mayfield, 19 Vet.App. at 128 (“there could be Previous HitnoNext Hit prejudice if
the purpose behind the notice has been satisfied, that is, affording a
claimant a meaningful opportunity to participate effectively in the
processing of her claim by VA” (citations omitted)).
I also disagree with the majority’s conclusion that, although a
claimant is presumed to be seeking the maximum benefit, see AB v. Brown, 6
Vet.App. 35, 38 (1993) (quoting 38 C.F.R. 3.103(a) (1992) (requiring the
Secretary to “render a decision which grants every benefit that can be
supported in law while protecting the interests of the Government”)); see
also ante at 14-15, 21, a claim is somehow substantiated even though a
claimant continues to appeal his award. This confuses the finding of
service connection with the award of the maximum benefit authorized by law
. When the latter is granted, the claim is substantiated. Prior to that,
at best, the claim is substantiated only in part. Claimants seek VA
benefits, not an element of the claim for benefits, and, in disability
claims, they seek the maximum compensation authorized by law. See 38 U.S.
C. 1110 (authorizing payment of disability compensation to veterans who
suffered disease or injury in the line of duty); 38 U.S.C. 1131 (same);
see also AB, supra; 38 C.F.R. 3.103(a) (2005). There is little doubt
that the claimant seeking disability compensation who receives an award of
service connection, an effective date, and a 0% disability rating (with no compensation) will wonder how the claim for compensation could be
considered substantiated. See United States v. Wilson, 503 U.S. 329, 336-
37 (1992) (rejecting any interpretation of statute requiring that Court “
to stretch the meaning of the words”); see also The American Heritage
Dictionary of the English Language 1284 (New College ed. 1976) (defining “
substantiate” as to “verify”).

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