Veteranclaims’s Blog

July 7, 2010

Vazquez-Flores v. Peake; VCAA; Prejudice; hearing officer duties; Bryant v. Shinseki,

This memorandum decision is interesting because it looks at VCAA notice as seen by the Federal Circuit and is one of the first applications of Bryant. While the cast itself may not be cited as precedent the logic, for the pro se veteran is of interest and may provide some guidance toward the creation of some similar sort of argument.
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“Mr. Mitchell first argues that VA failed to provide adequate notice that,
if his claim for increased compensation were granted, the effective date for the increased award could be assigned up to one year prior to the date the claim for increased compensation was received if it were factually ascertainable that his disability had increased in that time frame. See 38 U.S.C. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2) (2010). He also argues that the notice he received did not indicate that he could submit lay evidence to substantiate the assignment of an effective date up to one year earlier than the date of his claim.
The Secretary responds that Mr. Mitchell’s arguments are misplaced, as “VA
is not required to provide [VCAA] notice after a claim has been substantiated.”
Secretary’s Brief at 10. He further explains that Mr. Mitchell’s claim has been “substantiated because a decision has been made awarding service connection, a disability rating and an effective date.” Id. at 10-11. Thus the
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Secretary appears to argue that, after Mr. Mitchell’s service-connection
claim was granted in 1959, VCAA notice was no longer required for any subsequent claim related to that disability.
The Secretary’s argument fails to recognize that the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) has stated that “notice must
identify the information and evidence necessary to substantiate the particular type of claim being asserted by the veteran.”
Wilson, 506 F.3d at 1059.

In Vazquez-Flores v. Shinseki, the Federal Circuit clarified that the
phrase “particular type of claim” used in Wilson was “intended to distinguish between types of claims, i.e., between claims seeking service connection and those seeking increased ratings.” 580 F.3d at 1277.

The Federal Circuit further clarified that “generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating.” Id. Consequently, the Secretary’s argument that notice was not required for the increased-rating claim because the service-connection claim was substantiated must fail.”
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The hearing officer’s failure to explicitly lay out the material issue was combined
with a failure to suggest to Mr. Mitchell that he should secure and submit evidence regarding when his service-connected disability worsened–evidence that was lacking at the time of the hearing and that remained lacking through final Board decision. Had Mr. Mitchell been so notified, he could have obtained and submitted such information. His prejudice arises from the lost additional opportunity to try and do so before his claim was finally adjudicated, which is one of the prima facie purposes of the regulatory requirement that the Board hearing officer suggest the submission of material evidence that the appellant may have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet. App. 476, 481 (1996)(stating that “‘[p]rejudice . . . means injury to an interest that the statute, regulation, or rule in question was designed to protect'” (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996))); cf. Shinseki v. Sanders, 129 S. Ct. at 1708 (indicating as a factor for determining notice-error prejudice, the identification of evidence that might have been obtained or sought if proper notification had been given); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding that “[w]here the effect of an error on the outcome of a proceeding is unquantifiable . . . , we will not speculate as to what the outcome might have been had the error not occurred”). The Court concludes, therefore, that Mr. Mitchell was prejudiced by the hearing officer’s failure to fulfill the duties specified in 38 C.F.R. § 3.103(c)(2).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3940
SIDNEY MITCHELL, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Sidney Mitchell appeals through counsel from
an August 22, 2008, Board of Veterans’ Appeals (Board) decision that denied
entitlement to an effective date
earlier than May 17, 2006, for a 30% disability rating for cold weather
residuals of the right and left
lower extremities. Because the Board hearing officer failed to explain
fully the issues and suggest
the submission of evidence that may have been overlooked, as required by
38 C.F.R. § 3.103(c)(2)
(2010), the Court will set aside the Board’s August 2008, decision and
remand the matter of the
effective date for readjudication.
Mr. Mitchell served in Korea, where he stood guard duty in the snow. He
was discharged
from the Army on August 25, 1959, and was granted service connection for
residuals of frozen feet,
effective August 26, 1959, at a noncompensable rating. On May 18, 2006, VA
received his claim
for an increased rating.
VA sent Mr. Mitchell a notice letter on May 25, 2006, that explained what
the evidence
needed to show in order for his claim to be granted and how VA would
assist him. Mr. Mitchell
responded to VA, indicating that he had no other information or evidence
to give to VA to
substantiate his claim. VA subsequently provided a medical examination and
the regional office
(RO) decided his claim, awarding a 30% disability rating with an effective
date of May 17, 2006,

the date of receipt of his claim for increase. Mr. Mitchell appealed the
RO decision and participated
in a hearing before the Board. Mr. Mitchell now appeals the Board’s denial
of an earlier effective
date.
I. ANALYSIS
A. VCAA Notice Letter
As ageneralmatter,thepurposeof the Veterans Claims Assistance Act (VCAA),
Pub. L. No.
106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), which establishes the notice
requirements, “is 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);
see also 38 U.S.C. §
5103(a). Notice need not be specific to the veteran, but must be specific
to the claim in that it
“identify the information and evidence necessary to substantiate the
particular type of claim being
asserted.” Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007); see
also Vazquez-Flores v.
Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (stating that the generic
notice required for a claim
for service connection must be different from the generic notice required
for a request for an
increased rating).
Mr. Mitchell first argues that VA failed to provide adequate notice that,
if his claim for
increased compensation were granted, the effective date for the increased
award could be assigned
up to one year prior to the date the claim for increased compensation was
received if it were factually
ascertainable that his disability had increased in that time frame. See 38
U.S.C. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2) (2010). He also argues that the notice he
received did not indicate that he
could submit lay evidence to substantiate the assignment of an effective
date up to one year earlier
than the date of his claim.
The Secretary responds that Mr. Mitchell’s arguments are misplaced, as “VA
is not required
to provide [VCAA] notice after a claim has been substantiated.”
Secretary’s Brief at 10. He further
explains that Mr. Mitchell’s claim has been “substantiated because a
decision has been made
awarding service connection, a disability rating and an effective date.”
Id. at 10-11. Thus the
2

Secretary appears to argue that, after Mr. Mitchell’s service-connection
claim was granted in 1959,
VCAA notice was no longer required for any subsequent claim related to
that disability.
The Secretary’s argument fails to recognize that the U.S. Court of Appeals
for the Federal
Circuit (Federal Circuit) has stated that”noticemust
identifytheinformationandevidence necessary
to substantiate the particular type of claim being asserted by the veteran
.” Wilson, 506 F.3d at 1059.
In Vazquez-Flores v. Shinseki, the Federal Circuit clarified that the
phrase “particular type of claim”
used in Wilson was “intended to distinguish between types of claims, i.e.,
between claims seeking
service connection and those seeking increased ratings.” 580 F.3d at 1277.
The Federal Circuit
further clarified that “generic notice provided in response to a request
for service connection must
differ from that provided in response to a request for an increased rating
.” Id. Consequently, the
Secretary’s argument that notice was not required for the increased-rating
claim because the service-
connection claim was substantiated must fail.
The Court, therefore, must determine whether the Board erred in finding
that “the required
VCAA notification was provided in a letter issued in August 2006″1
and “the veteran has been
notified as to effective dates in his initial May 2006 VCAA notification
in his claim for an increased
rating.” Record (R.) at 7.
In Vazquez-Flores v. Peake, 27 Vet.App. 37 (2008), this Court determined
what is necessary
to substantiate a claim for increased compensation. The Court stated:
Accordingly, for an increased-compensation claim, section 5103(a) requires,
at a
minimum, that the Secretary notify the claimant that, to substantiate a
claim the
claimant must provide, or ask the Secretary to obtain, medical or lay
evidence
demonstrating a worsening or increase in severity of the disability and
the effect that
worsening has on the claimant’s employment.
Id. at 43; see also Vazquez-Flores, 580 F.3d at 1281 (vacating this
Court’s decision in Vazquez-
Flores only “insofar as the notice described . . . requires the VA to
notify a veteran of . . . potential
‘daily life’ evidence”). Therefore, notice that the effective date for the
increased award could be
assigned up to one year prior to the date of the claim for increased
compensation is not required to
In the Secretary’s response to the Court’s May 25, 2010, order to
supplement the record, he states that the
Board committed a typographical error in referring to an August 2006
letter, and instead intended to reference the May
2006 VCAA letter.
1
3

substantiate a claim for an increased rating and is not required under
the VCAA. The same is true
for notice regarding lay evidence to substantiate the assignment of an
effective date up to one year
earlier than the date of the claim; it also is not required to
substantiate a claim for an increased rating
and such notice is therefore not required under the VCAA.
The Court has determined what is necessary to substantiate a claim for an
increased rating.
Mr. Mitchell’s arguments regarding the insufficiency of the notice letter
he received do not relate to
the information and evidence necessary to substantiate his claim, as
articulated by the Court in
Vazquez-Florez. Consequently, the Court discerns no error in the Board’s
finding that Mr. Mitchell
received VCAA-compliant notification.
B. Duties of Hearing Officer
Mr. Mitchell next argues that the hearingofficer at his June 2, 2008,
hearingbefore the Board
failed to “explain fully the issues and suggest the submission of evidence
which the claimant may
have overlooked and which would be of advantage to the claimant’s position
,” as required by
38 C.F.R. § 3.103(c)(2). The regulation also states that questions
directed to the claimant are to be
framed to “assure clarity and completeness of the hearing record.” Id. The
two duties imposed by
the regulation–the duty to fully explain the issues and the dutyto
suggest the submission of evidence
that may have been overlooked–are not impacted by the veteran’s receipt
of a VCAA-compliant
notice letter. See BryantNext Hit v. Shinseki, __ Vet.App. __, No. 08-4080 (July 1,
2010); Cuevas v.
Principi, 3 Vet.App. 542 (1992). The RO’s rating decision and Statement of
the Case should assist
the hearing officer in identifying the outstanding issues. Previous HitBryantNext Document, __ Vet.
App. __, __, No. 08-4080,
slip op. at __ n.3 (July 1, 2010).
Here, the hearing officer correctly identified the outstanding issue. He
stated: “The only
remaining issue is that of an earlier effective date for the 30% cold
weather residuals. It’s now said
it’s May2006 and so at this time I’ll hear Mr. Mitchell’s
testimonyregardingthe earlier effective date.
Go ahead Mr. Metcalfe.”2
R. at 237. The hearing officer did not, however, fully explain the
outstanding issue. He did not tell Mr. Mitchell what the evidence would
need to establish in order
for the Board to grant an earlier effective date, nor did he explain why
the RO had denied an earlier
effective date. The hearing officer also did not redirect Mr. Mitchell or
his representative when the
2
Mr. Mitchell was represented at his hearing by Howard Metcalfe, from the
American Legion.
4

sole argument theypresented was that Mr. Mitchell never received VA’s
rating decision in 1959 and
therefore he was not able to appeal, nor did the hearing officer explain
why that argument was
irrelevant to establishing entitlement to an effective date up to one year
earlier than the date on which
the claim for an increase rating was filed. The hearing transcript as a
whole–which is seven pages
long and in which Mr. Mitchell spoke 37 words–demonstrates that the
hearing officer failed to
explain fully the issue or suggest the submission of any evidence that may
have been overlooked.
Consequently, the hearing officer failed to fulfill his duties under 38 C.
F.R. § 3.103(c)(2).
The Court must next consider whether Mr. Mitchell was prejudiced by the
hearing officer’s
error. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S. Ct. 1696,
1704 (2009). The hearing
officer’s failure to explicitly lay out the material issue was combined
with a failure to suggest to Mr.
Mitchell that he should secure and submit evidence regarding when his
service-connected disability
worsened–evidence that was lacking at the time of the hearing and that
remained lacking through
final Board decision. Had Mr. Mitchell been so notified, he could have
obtained and submitted such
information. His prejudice arises from the lost additional opportunity to
try and do so before his
claim was finallyadjudicated, which is one of the prima facie purposes of
the regulatoryrequirement
that the Board hearing officer suggest the submission of material evidence
that the appellant may
have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet.
App. 476, 481 (1996)
(stating that “‘[p]rejudice . . . means injury to an interest that the
statute, regulation, or rule in
question was designed to protect'” (quoting Intercargo Ins. Co. v. United
States, 83 F.3d 391, 396
(Fed. Cir. 1996))); cf. Shinseki v. Sanders, 129 S. Ct. at 1708 (
indicating as a factor for determining
notice-error prejudice, the identification of evidence that might have
been obtained or sought if
proper notification had been given); Wagner v. United States, 365 F.3d
1358, 1365 (Fed. Cir. 2004)
(holding that “[w]here the effect of an error on the outcome of a
proceeding is unquantifiable . . . ,
we will not speculate as to what the outcome might have been had the error
not occurred”). The
Court concludes, therefore, that Mr. Mitchell was prejudiced bythe hearing
officer’s failure to fulfill
the duties specified in 38 C.F.R. § 3.103(c)(2).
5

II. CONCLUSION
Based on consideration of the foregoing, the Court SETS ASIDE the Board’s
August 22,
2008, decision and REMANDS for readjudication the matter of the effective
date of an award of
30% disability rating for cold weather residuals of the right and left
lower extremity. On remand,
Mr. Mitchell will be free to submit additional evidence and argument in
support of an earlier
effective date, and the Board is required to consider any such evidence
and argument. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). A final decision by the Board
following the remand herein
ordered will constitute a new decision that, if adverse, may be appealed
to this Court upon the filing
of a new Notice of Appeal with the Court not later than 120 days after the
date on which notice of
the Board’s new final decision is mailed to Mr. Mitchell. See Marsh v.
West, 11 Vet.App. 468, 472
(1998).
DATED: July 2, 2010
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
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