Wilson v. Mansfield

• Decision Date: 15 October 2007
• Docket Number: No. 2007-7099.,2007-7099.
• Citation: 506 F.3d 1055
• Parties: Douglas M. WILSON, Claimant-Appellant, v. Gordon H. MANSFIELD, Acting Secretary of Veterans Affairs, Respondent-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

506 F.3d 1055

Douglas M. WILSON, Claimant-Appellant, v. Gordon H. MANSFIELD, Acting Secretary of Veterans Affairs, Respondent-Appellee.

No. 2007-7099.

United States Court of Appeals, Federal Circuit.

October 15, 2007.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Martin F. Hockey, Jr., Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. On the brief were Peter D. Keisler, Acting Attorney General, Jeanne E. Davidson, Director, Brian M. Simkin, Assistant Director, and Phyllis Jo Baunach, Trial Attorney. Of counsel on the brief were Michael J. Timinski, Deputy

Assistant General Counsel, and Michael G. Daugherty, Attorney, United States Department of Veterans Affairs.

Before RADER, Circuit Judge, CLEVENGER, Senior Circuit Judge, and DYK, Circuit Judge.

DYK, Circuit Judge.

Appellant Douglas M. Wilson ("Wilson") appeals from a decision of the Court of Appeals for Veterans Claims ("Veterans Court"). The Veterans Court affirmed a decision of the Board of Veterans' Appeals ("Board") denying Wilson's claim for service connection for a psychiatric disability. Wilson claims that the Department of Veterans Affairs ("VA") failed to provide the notice required by 38 U.S.C. § 5103(a) (2000). We affirm.

BACKGROUND

Wilson served on active duty in the United States Marine Corps from June 1964 to March 1974. He served two tours of combat duty in Vietnam, where he "experienced stressful events in service," J.A. at 56, including seeing his colleagues killed and sustaining a shrapnel injury to his head. Wilson explained to a VA physician who examined him that these experiences left him with "constant ruminations about Vietnam," dreams of being shot at, poor memory, and headaches exacerbated by anxiety. J.A. at 60. The physician found that, despite these symptoms, Wilson did not meet the full criteria for a diagnosis of post-traumatic stress disorder ("PTSD").

In a January 1998 rating decision, the VA regional office ("RO") denied Wilson's claim for service connection for "a psychiatric disability to include PTSD and for memory loss." J.A. at 40. Wilson filed a notice of disagreement ("NOD") in January 1998. The RO issued a statement of the case ("SOC") in June 1998, and Wilson perfected his appeal in July 1998. In a February 2004 decision the Board denied service connection. Pursuant to a joint motion for remand, which reflected the parties' agreement that the Board's decision failed to set forth sufficient reasons and bases for its denial of service connection of a psychiatric disorder other than PTSD, the Veterans Court in December 2004 vacated and remanded that denial to the Board for readjudication. Also pursuant to the parties' stipulation, the Veterans Court dismissed Wilson's appeal with regard to the service-connection claims for PTSD and memory loss.

By a letter dated January 18, 2005, Wilson's counsel requested that the Board remand the case to the RO "for review and preparation of a Supplemental Statement of the Case." J.A. at 45. She further requested: "If you determine there is significant negative evidence on a material issue in this claimant's record, please let my client know what this evidence is and what types of evidence would aid in rebutting this negative evidence and thus substantiate these claims." Id.

On February 11, 2005, the Board denied Wilson's claim for service connection for a psychiatric disability other than PTSD. On appeal, the Veterans Court affirmed. In response to Wilson's argument that the VA violated its duty to provide adequate notice pursuant to 38 U.S.C. § 5103(a), the Veterans Court stated that "VA was not required to analyze the evidence gathered and inform the appellant of the inadequacy of his submissions." Wilson v. Nicholson, Vet.App. No. 05-0566, slip op. at 2, 2006 WL 3094166 (Oct. 24, 2006). The court explained that the "duty to notify deals with evidence gathering, not the analysis of already gathered evidence." Id. It concluded that "appellant is not entitled to an advisory opinion from the Board as to the adequacy of his evidence prior to its formal decision." Id., slip op. at 3. Citing its recent decision in Locklear v. Nicholson, 20 Vet.App. 410 (2006), the court reaffirmed its rejection of the argument that section 5103(a) requires what it characterized as a "predecisional adjudication" of the claimant's case. Wilson v. Nicholson, Vet. App. No. 05-0566, slip op. at 2.

Wilson timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292(a).

DISCUSSION

I

This case involves issues as to the scope of section 5103(a), which obligates the VA to notify claimants of what information and evidence they must submit to substantiate their claims. It provides:

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 . . . will attempt to obtain on behalf of the claimant.

38 U.S.C. § 5103(a). The regulation implementing this statute tracks the statutory text and imposes no additional notice obligation on the VA. See 38 C.F.R. § 3.159(b) (2007).¹

Wilson does not argue that he received inadequate notice when he initially filed his claim with the RO.² However, Wilson contends that the VA violated its duty of notice under section 5103(a) following remand of his case from the Veterans Court to the Board. He contends that, upon remand from the Veterans Court, the Board was required under section 5103(a) to provide him with additional, specific notice that would provide him with the Board's "pre-decisional assessment of the evidence." Appellant's Br. at 14. Wilson's claim is essentially twofold. First, he argues that the duty imposed by section 5103(a) is not limited to providing notice after the initial filing of a "complete or substantially complete application" but continues throughout the claim process. Second, Wilson contends that the notice required by section 5103(a) is specific notice of what evidence is missing—that the VA must, at least upon request, "share its pre-decisional assessment of the evidence." Appellant's Br. at 14. We reject both arguments.

Wilson is incorrect that section 5103(a) applies throughout the claim process. Under the plain language of the statute, the notice obligation is triggered by the filing of a "complete or substantially complete application." The statutory language does not suggest that the notice required extends beyond this filing. Contrary to Wilson's argument, the "previously provided" language does not indicate that the duty extends throughout the claim process. The legislative history of section 5103(a) confirms that it does not. Section 5103(a) was enacted as part of the Veterans Claims Assistance Act of 2000, Pub.L. No. 106-475, 114 Stat. 2096 ("VCAA"). The purpose of that statute, according to its legislative history, is "to reinstate VA's traditional practice of assisting veterans at the beginning of the claims process." S.Rep. No. 106-397, at 22 (2000). Our decisions also have confirmed that section 5103(a) is intended "to require that the VA provide affirmative notification to the claimant prior to the initial decision in the case as to the evidence that is needed and who shall be responsible for providing it." Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed.Cir.2006) ("Mayfield II"); see also Sanders v. Nicholson, 487 F.3d 881, 886 (Fed.Cir.2007) (citing Mayfield II, 444 F.3d at 1333); Hartman v. Nicholson, 483 F.3d 1311, 1314 (Fed.Cir.2007) (citing Mayfield II, 444 F.3d at 1333).

In Mayfield II, the Board had determined that the notice requirement of section 5103(a) was satisfied by "three post-decisional communications with [the claimant]," including a notice of decision and two statements of the case. 444 F.3d at 1334. We held that this determination was inconsistent with the statute, which requires notification "prior to the initial decision on the claim, not afterwards." Id. at 1333. Although the notice does not have to be contained in a single document, all of the required information must be given to the claimant sufficiently in advance of the initial RO decision to enable the claimant to develop his case. See id. In this way section 5103(a) "ensure[s] that the claimant's case is presented to the initial decisionmaker with whatever support is available." Id. (emphasis added).

Following Mayfield II, we specifically held in Hartman that section 5103(a) does not apply to proceedings that take place after the RO's initial decision. 483 F.3d at 1314-15. In that case the claimant had filed a NOD after the RO awarded him service connection but established an effective date later than the one to which the veteran believed he was entitled. Id. at 1313-14. The claimant argued that, upon filing his NOD, the VA was required to provide him notice under section 5103(a). Id. at 1314. We rejected this argument, because "[t]he filing of a notice of disagreement takes place after, not prior to, the regional office's decision." Id.

Wilson is also incorrect in arguing that section 5103(a) is not satisfied by generic notice and requires specific notice of the missing evidence with respect to a particular claim. The statute on its face does not address the level of required detail, stating only that the notice must identify "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). The legislative history of section 5103(a) reveals that Congress intended this...