          UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                           NO . 01-1332

                                LEONARD T. SUTTON , APPELLANT ,

                                                   V.


                                   R. JAMES NICHOLSON ,
                         SECRETARY OF VETERANS AFFAIRS, APPELLEE.


                         On Appeal from the Board of Veterans' Appeals


                               (Decided September 20, 2006         )


       Kathy A. Lieberman, of Washington, D.C., was on the brief for the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Joan
E. Moriarty, Deputy Assistant General Counsel; and Debra L. Bernal, all of Washington, D.C., were
on the brief for the appellee.

       Before MOORMAN, LANCE, and SCHOELEN, Judges.

       LANCE, Judge: The appellant, veteran Leonard T. Sutton, appeals through counsel a July
19, 2001, decision of the Board of Veterans' Appeals (Board) that (1) denied entitlement to an
effective date earlier than July 31, 1998, for the assignment of a 40% disability rating for the
appellant's service-connected chronic lumbosacral strain, and (2) remanded an additional claim.
Record (R.) at 1-21. As to the remanded claim, the Court does not have jurisdiction over that claim
and the appellant makes no argument with respect to it. See Link v. West, 12 Vet.App. 39, 47 (1998);
Marlow v. West, 11 Vet.App. 53, 55 (1998). As to the denied claim, this appeal is timely, and the
Court has jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). For the reasons that follow,
the Court will affirm the decision of the Board.
                                             I. FACTS
       The veteran served on active duty in the U.S. Army from September 1966 to August 1968.
R. at 23. His service medical records reflect that he injured his back in October 1967 while changing
a tire. R. at 39. In January 1969, a VA regional office (RO) granted service connection for chronic
lumbosacral strain and assigned a 10% disability rating. R. at 84.
       In August 1992, the RO denied a July 1992 claim for an increased disability rating. R. at
301, 316-17. On appeal, the Board remanded his claim in November 1995. R. at 354-57. The
remand decision included instructions that, if a 40% disability rating was not granted on remand,
then a Supplemental Statement of the Case (SSOC) should be issued and the matter returned to the
Board for further consideration. R. at 357. Following a VA compensation and pension examination
in March 1997 (R. at 718-30), the RO issued a rating decision on June 16, 1997, granting the
appellant a 20% disability rating for his back condition, effective from July 1992 (R. at 732-34).
Also on June 16, 1997, pursuant to the November 1995 remand decision, the RO issued an SSOC
with a cover letter addressed to the appellant concerning the decision. R. at 736-38. A comparison
of the rating decision and the SSOC reveals that the evidence listed and the analysis included in the
respective "Reasons and Bases" sections are word-for-word the same. R. at 732-33, 737-38.
       The appellant testified at a personal hearing on the matter in July 1997. R. at 740-49. The
appellant's representative, in guiding the appellant's presentation, established that the appellant had
received either a copy of the June 16, 1997, rating decision or the SSOC of the same date, but did
not clarify which one. R. at 741. After that hearing, on August 21, 1997, a second SSOC was sent
to the appellant continuing the prior rating decision. R. at 747-49. The appellant responded to this
SSOC on August 27, 1997, with a handwritten statement in support of his claim. R. at 751. This
was followed in September 1997 by a four-page typewritten letter from the appellant's representative
setting forth his disagreement with the decision. R. at 754-77. Finally, in October 1997 the
appellant's representative submitted an informal hearing presentation to the Board restating his
analysis of the evidence. R. at 760-61. In December 1997, the Board denied entitlement to a rating
in excess of 20% for chronic lumbosacral strain. R. at 763-73.
       As part of the implementation of the 1997 rating decision, in July 1998, the RO advised the
appellant by letter that the disability rating for his back condition had been increased from 10% to


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20%. R. at 775-76. He submitted an "official Notice of Disagreement [NOD]" on July 31, 1998,
in which he asserted that he deserved at least a 40% disability rating for his back condition. R. at
778. The RO rejected the communication as an NOD because the matter had already been the
subject of an appeal in which the Board affirmed the 20% rating. R. at 778 (see handwritten notation
thereon). A September 1998 letter from the RO advised the appellant that the December 1997 Board
decision that had affirmed a denial of a rating in excess of 20% was final, but that his July 31, 1998,
letter had been accepted as a reopened claim. R. at 780. After additional development, in March
2000, the decision review officer increased the disability rating for the appellant's back strain to 40%,
effective from July 31, 1998, the date of the appellant's construed claim for an increase. R. at 962-
65. Later that month, the appellant filed an NOD disagreeing with the effective date assigned for
the increase. R. at 970.
        On appeal to the Board, the appellant argued in essence that he should be assigned an earlier
effective date because the December 1997 Board decision was not final as a result of notice defect.
R. at 1003, 1008, 1020-21. In its decision on appeal, the Board stated that the June 1997 RO rating
decision was subsumed by the December 1997 Board decision and that the appellant was notified
of the December 1997 Board decision and did not appeal it. R. at 10-11. Accordingly, the Board
concluded that the appellant's July 1998 statement was a separate and new claim for purposes of
determining the proper effective date for the increase in the appellant's disability rating. R. at 12.
As a result, the Board affirmed the assignment of the July 1998 effective date. R. at 3.


                                            II. ANALYSIS
                       A. The Finality of the December 1997 Board Decision
        The first argument that the appellant makes is that the Board incorrectly identified the claim
that led to the grant of an increased rating. Brief (Br.) at 6-10. Generally, "the effective date of an
award based on an original claim, a claim reopened after final adjudication, or a claim for increase
. . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt
of application therefor." 38 U.S.C. § 5110(a); see Sears v. Principi, 16 Vet.App. 244, 247 (2002);
Morris v. West, 13 Vet.App. 94, 96 (1999); 38 C.F.R. § 3.400 (2005).




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                                   1. The Issue Before the Court
       In the 2001 decision on appeal, the Board found that the appellant did not receive a copy of
the June 1997 RO decision until July 1998–seven months after the December 1997 Board decision
affirming the 20% disability rating.1 R. at 10. The issue presented to the Court is whether the
Secretary's failure to send a copy of the June 1997 RO decision to the appellant in a timely manner
was an error that rendered the claim nonfinal so that the decision increasing his disability rating to
40% stems from the appellant's 1992 claim for the purpose of assigning an effective date under 38
U.S.C. § 5110. See Appellant's Br. at 6-10. The appellant argues that, due to a notice error, his prior
claim for an increased rating was still pending and, therefore, the July 1998 correspondence was not
a new claim. Id. The Secretary argues that the appellant was adequately notified of the June 1997
RO decision by the SSOC issued at the same time. Br. at 20.
       The Board concluded that it was irrelevant whether the appellant had received a copy of the
1997 RO decision because that decision was subsumed by the 1997 Board decision. R. at 10. This
analysis is incorrect. It is true that an appellant may not assert error in an RO decision that has been
subsumed by a Board decision. See Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); 38 C.F.R.
§ 20.1104 (2005). However, the appellant's assertion that the Secretary failed to provide him a copy
of the June 1997 RO decision was not an attack on the substance of the RO decision; it was an attack
on the finality of the 1997 Board decision. Since this Court and the Federal Circuit have recognized
some circumstances that might render a prior RO decision nonfinal, and appellant argues that
application of that caselaw here would render a subsequent Board decision nonfinal, it was
incumbent upon the Board to address this argument directly. See Hauck, Ashley, Kuo, Tablazon, and
Cook, all infra. Accordingly, the Board's attempt in 2001 to avoid the issue was erroneous.




       1
         The basis for this finding is not clear. The 2001 Board decision does not discuss the
presumption of regularity or cite any evidence in the record that would rebut the presumption that
the June 1997 RO decision was properly mailed to the appellant. Woods v. Gober, 14 Vet.App. 214,
220 (2000). Nonetheless, the Court cannot review factual findings by the Board favorable to an
appellant. See 38 U.S.C. § 7252(a) (the Secretary may not seek review of a Board decision); Nolen
v. Gober, 222 F.3d 1356 (Fed. Cir. 2000) (Court may not revisit Board's favorable determination that
claim is well grounded).

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                               2. Whether There Was a Notice Error
       The first aspect of the parties' dispute that the Court must address is whether it was error for
the Secretary to fail to send the appellant a timely copy of the June 1997 RO decision. The appellant
asserts that this was a notice error under 38 U.S.C. § 5104.2 Section 5104, title 38, U.S. Code,
requires the Secretary to provide to a claimant with notice of a decision affecting the provision of
benefits. The statute requires that the notice include "a statement of the reasons for the decision,"
"a summary of the evidence considered," and "an explanation of the procedure for obtaining review."
38 U.S.C. § 5104. The statute itself does not state in what form the information must be provided.
Nor does it specify a mandatory remedy for a violation.
       Based on the plain language of the statute, the Court agrees with the Secretary that the June
1997 SSOC issued on the same day as the RO decision (R. at 737-38), which the appellant has
conceded receiving (Br. at 2), was adequate to provide notice of the RO decision. The SSOC clearly
notified the appellant that he was entitled to a 20% disability rating and clearly set forth the RO's
analysis of the evidence and why it reached the conclusion that a 40% disability rating was not
warranted. R. at 737-38. The SSOC was sent to the appellant with a cover letter explaining that the
appellant's claim was being automatically returned to the Board for review. R. at 736. Hence, all
three requirements of the statute were met by the SSOC.
       The Court notes that the appellant makes no argument addressing the specific requirements
of section 5104 or contending that the SSOC was not adequate to satisfy the statute. The apparent
premise of the appellant's argument is that failure to send him a timely copy of the RO decision itself
is error under the statute. However, this unsupported argument must be rejected as it would
unnecessarily elevate form over substance. See Guimond v. Brown, 6 Vet.App. 69, 72 (1993). The
essence of section 5104 is the requirement that a claimant be given notice adequate to allow an


       2
        The appellant also argues that this was a "grave procedural error" under Hayre v. West,
188 F.3d 1327 (Fed. Cir. 1999). Br. at 8. After the appellant's brief was filed, Hayre was overruled
by Cook v. Principi, 318 F.3d 1334, 1347 (Fed. Cir. 2002) (en banc). The Court notes that
appellant's counsel has not filed a notice of supplemental authority under Rule 30(b) of this Court's
Rules of Practice and Procedure and reminds her that her duty of candor toward the Court includes
the duty to update her pleadings when authorities cited in the appellant's brief have been overruled.
See MODEL RULE OF PROF'L CONDUCT R. 3.3(a)(2), (c) (2002) (as adopted by U.S. VET . APP . R.
ADM . & PRAC. 4(a)).

                                                  5
appeal of the decision. The appellant received such notice in this case and neither the appellant's
brief nor the record suggests that the appellant's rights were affected by the form of the notice.
Accordingly, the Court concludes that it was not error under section 5104 to communicate the
required information to the appellant through an SSOC rather than providing a timely copy of the
decision itself.
        The Court also concludes that the appellant's position does not gain any support from the
regulation he cites. That provision, 38 C.F.R. § 3.104 (2005), states that an RO decision is "final and
binding on all field offices of [VA]" as soon as notice under section 5104 is issued. Accordingly,
the regulation speaks only to the effect of issuing notice under the statute. It explicitly refers to
notice "in accordance with 38 U.S.C. § 5104" rather than adding any additional requirements.
        Moreover, the Court notes that 38 C.F.R. § 19.31(a) (2005) states that an SSOC may not be
used to "announce decisions . . . on issues not previously addressed" or "to respond to a[n NOD] on
newly appealed issues." This implies that an SSOC is an appropriate vehicle for announcing a
decision on an issue previously addressed, such as the rating decision in this case. Similarly,
38 C.F.R. § 19.38 (2005) provides that, in cases remanded by the Board, when the RO takes any
action other than granting all benefits sought on appeal, the RO "will issue a[n SSOC]." However,
nothing in § 19.38 requires the RO to issue anything other than an SSOC where less than the full
award of benefits sought on appeal is granted. Thus, while a formal, separate RO decision was
drafted in this case, §§ 19.31(a) and 19.38 suggest this step was not technically required because the
SSOC was adequate to inform the appellant of the status of the previously decided claim. Hence,
the failure to provide the appellant with the RO decision was not a procedural error in the absence
of the decision having some relevant content that was not otherwise communicated to the appellant.
              3. Whether the Appellant Was Able to Challenge the 1997 RO Decision
        We have noted in the past that the Secretary's duty to provide an appellant notice of an RO
decision is part of "the VA's nonadversarial claims system [that] is predicated upon a structure which
provides for notice and an opportunity to be heard at virtually every step in the process." Thurber
v. Brown, 5 Vet.App. 119, 123 (1993) (comparing these rights to the constitutional due process rights
of a Social Security benefits recipient); cf. CHARLES H. KOCH , JR., 2 ADMIN . L. & PRAC. § 5.32 (2nd
ed. 2006) ("It has long been established that due process requires notice reasonably calculated, under


                                                  6
all circumstances, to inform the private party of the nature of the government action so as to allow
an opportunity to challenge the action."). Nonetheless, even if we were to assume in this case that
the appellant did not get a timely copy of the 1997 RO decision, it is beyond dispute that he had
notice and an opportunity to be heard before the 1997 Board decision.
       The appellant's brief concedes that he was mailed a copy of the June 16, 1997, SSOC that
was issued on the same day as the rating decision. Br. at 2. This concession is consistent with the
appellant's July 1997 testimony at a hearing at the St. Petersburg, Florida RO where he
acknowledged receiving either a timely copy of the rating decision or a copy of the SSOC. R. at 741.
A comparison of the June 16, 1997, rating decision and the SSOC issued on the same day reveals
that the evidence listed and the analysis included in the respective "Reasons and Bases" sections are
word for word the same. R. at 732-33, 737-38. Accordingly, even if the appellant did not receive
the RO decision, he received the exact information contained in the RO decision from another
document issued on the same day.
       Not only did the appellant receive notice of the contents of the June 1997 RO decision, he
had ample opportunity to participate in the appeal of that decision. First, as mentioned above, after
receiving the SSOC he testified at a personal hearing where he set forth his position that his back
condition should have been rated as 40% disabling and discussed his symptoms and the relevant
diagnostic codes with the hearing officer. R. at 740-44. Thereafter, he was sent a second SSOC on
August 22, 1997, which provided an updated decision that considered his testimony at the personal
hearing. R. at 746-49. The appellant acknowledged receipt of the second SSOC when he submitted
a personal statement in support of his claim on August 27, 1997. R. at 751. He then presented a
four-page statement from his representative in support of his claim attacking the "rating decision
dated June 16, 1997," as "confirmed and continued" by the hearing officer. R. at 754-58. Finally,
prior to the Board decision, he submitted a subsequent informal hearing presentation through his
representative referencing the prior statement and stating that the "instant appeal is fully developed,
and, as such is now ready for final Board adjudicatory action." R. at 760-61. Accordingly, it is
beyond dispute that–despite not receiving a timely copy of the RO decision–the appellant was aware
of the substance of the decision and, not only had the opportunity to be heard, but repeatedly took
advantage of that opportunity before the 1997 Board decision was issued. Thus, because the


                                                  7
appellant was not denied notice and a fair opportunity to appeal the 1997 RO decision, there is no
plausible basis to conclude that the 1997 Board decision is not final.
                    4. Cases Where VA Did Not Provide Notice of a Decision
       This case is readily distinguishable from those cited by the appellant suggesting that the
Board decision is nonfinal. The essence of the remedy requested by the appellant is that the Court
invalidate the December 1997 Board decision and treat the present appeal as a continuation of the
prior claim stream. The appellant bases this argument on Hauck v. Brown, 6 Vet.App. 518 (1994).
However, Hauck is not on point. In Hauck, we held that the time to file an NOD was tolled because
the appellant "never received notification of any denial." 6 Vet.App. at 519. However, we did not
address whether any additional remedy was appropriate for a claimant who received Board review
of his or her claim despite the notice error.
       The appellant's reliance on the other cases he cites is similarly misplaced. In Ashley
v. Derwinski, 2 Vet.App. 307, 308-09 (1992), the Court held that the Board's failure to properly mail
its decision tolled the 120-day period for filing a Notice of Appeal (NOA) with this Court in a case
where the NOA would not have been timely without such tolling.                Subsequently, in Kuo
v. Derwinski, 2 Vet.App. 662, 666 (1992), we rejected the Secretary's argument that a prior RO
decision was final and held that the appellant's time to file a Substantive Appeal had not expired
because the Secretary did not properly mail the SOC to both the appellant and his attorney. Finally,
in Tablazon v. Brown, 8 Vet.App. 359, 360 (1995), we held that a prior RO decision was not final
because the Secretary had not issued an SOC in response to the appellant's NOD.
       In general, if a claim is denied by an RO, and the claimant does not file an NOD within one
year, then RO decision becomes final and unappealable by operation of law. See 38 U.S.C.
§ 7105(b)(1); 38 C.F.R. §§ 3.160(d), 20.302(a) (2005). In each of the above cases, we held that the
procedural clock had stopped because of the Secretary's failure to comply with mandatory notice
requirements. The remedy that each of those appellants received was the opportunity to receive a
merits decision on their appeal based on resuming the appellate process at the point where the
Secretary had dropped the ball. By holding that the appeal period was tolled so long as the onus was
on the Secretary to act, those decisions rejected the Secretary's argument that, by failing to act, the
appellant had forfeited his right to Board review.


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       This case is distinguishable from the above cases in that there is no contention here that the
appellant is bound by the RO decision because he failed to appeal it. Unlike the above cases, the
claim in this case never left appellate status. See Hamilton v. Brown, 4 Vet.App. 528, 537-38 (1993)
(appeal of claim still pending where Board remands with instructions to return matter to Board if full
benefits not granted). It was placed in appellate status by the appellant's October 1992 NOD after
the August 1992 RO decision. Although the matter was returned to the RO by the Board for a new
decision, the claim was returned to the Board automatically after the June 1997 RO decision pursuant
to the terms of the 1995 Board remand. R. at 357. Hence, the appellant was never in jeopardy of
the June 1997 RO decision becoming final and unappealable because of his inaction. More
importantly, unlike the appellants in Hauck and its siblings, the appellant here received a Board
decision reviewing the RO decision at issue on the merits.
                         5. The Effect of a Notice Error If Found to Exist
       Even assuming it was error for the Secretary to fail to timely send the appellant a copy of the
June 1997 RO decision, it does not follow that this error warrants a conclusion that the subsequent
Board decision should be considered nonfinal. The Court is required to take due account of the rule
of prejudicial error. See 38 U.S.C. § 7261(b)(2); Conway v. Principi, 353 F.3d 1369, 1374-75 (Fed.
Cir. 2004). In the absence of demonstrated prejudice, remand for a procedural error is not warranted.
See Marciniak v. Brown, 10 Vet.App. 198, 201 (1997). Rather, the burden is on the appellant to
demonstrate that the procedural error affected the substance of the affected decision. See Berger v.
Brown, 10 Vet.App. 166, 169 (1997). Under the circumstances of this case, it is impossible for the
Court to conceive how the appellant could have been prejudiced by not receiving a timely copy of
the July 1997 RO decision where it is undisputed that he received the SSOC issued the same day
with the same content and how he then made his case on appeal four separate times before a decision
on the merits was issued. Given that the appellant has demonstrated neither error nor prejudice, the
Court need not consider whether a notice error related to an RO decision would affect the finality
of a subsequent, unappealed Board decision.
                        B. Veterans Claims Assistance Act of 2000 Notice
       The second argument advanced by the appellant is that his claim should be remanded because
he did not receive adequate notice of how to substantiate his claim pursuant to the Veterans Claims


                                                  9
Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096. Br. at 10-11. Upon receipt of a
complete or substantially complete application for benefits, the Secretary is required to inform the
claimant of the information and evidence not of record (1) that is necessary to substantiate the claim,
(2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if
any. See 38 U.S.C. § 5103(a); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002); 38 C.F.R. §
3.159(b) (2005). The Secretary is also required to "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) (2005); see Pelegrini
v. Principi, 18 Vet.App. 112, 121 (2004). However, this Court recently held that "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 no
longer required because the claim has already been substantiated."             Dingess v. Nicholson,
19 Vet.App. 473, 490 (2006). In this case, the appellant's claim was granted and assigned a disability
rating and an effective date in a March 2000 decision review officer decision. R. at 962-65.
Accordingly, it was already substantiated at the time section 5103(a) was enacted and the Secretary
had no obligation to provide notice under the statute. Id. at 24.


                                        III. CONCLUSION
       Accordingly, the July 19, 2001, Board decision is AFFIRMED.




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