 United States Court of Appeals for the Federal Circuit
                                      2007-7002



                               SANDIE V. GARRISON,

                                                            Claimant-Appellant,

                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.


      Kara F. Stoll, Finnergan, Henderson, Farabow, Garrett & Dunner, L.L.P., of
Washington, DC, argued for claimant-appellant. On the brief was Mark R. Lippman,
The Veterans Law Group, of La Jolla, California.

       Roger A. Hipp, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief were Peter D. Keisler, Assistant Attorney General,
Jeanne E. Davidson, Director, and Franklin E. White, Jr., Assistant Director. Of counsel
on the brief were David J. Barrans, Deputy Assistant General Counsel, and
Michelle Doses Bernstein, Attorney, United States Department of Veterans Affairs, of
Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Bruce E. Kasold
    United States Court of Appeals for the Federal Circuit

                                      2007-7002

                               SANDIE V. GARRISON,

                                                            Claimant-Appellant,

                                           v.


                R. JAMES NICHOLSON, Secretary of Veterans Affairs,

                                                            Respondent-Appellee.




                           DECIDED: July 25, 2007



Before SCHALL, BRYSON, and LINN, Circuit Judges.

SCHALL, Circuit Judge.

      Veteran Sandie V. Garrison appeals the final decision of the United States Court

of Appeals for Veterans Claims (“Veterans Court”) that affirmed the decision of the

Board of Veterans’ Appeals (“Board”) denying him a rating in excess of ten percent for

his ankle disability. Garrison v. Nicholson, No. 05-0808, 2006 WL 2564296 (Vet. App.

Aug. 31, 2006). In its decision, the Veterans Court reviewed, as a question of fact

under a clearly erroneous standard of review, the Board’s finding that, in the course of

considering Mr. Garrison’s claim, the Department of Veterans Affairs (“VA”) complied

with the notice provisions of 38 U.S.C. § 5103(a). Id. at *1. On appeal, Mr. Garrison

argues that the court should have reviewed the Board’s finding de novo because it

presented either a question of law or a mixed question of law and fact. Because we
hold that the Veterans Court applied the correct standard of review, we affirm the court’s

decision.

                                    BACKGROUND

      While serving on active duty in the military from May 1981 to May 1984, Mr.

Garrison injured his right ankle. Subsequently, in a December 1998 rating decision, the

VA granted service connection for the ankle disability, but rated the disability as

noncompensable from March 10, 1992. In April of 1999, Mr. Garrison appealed the

noncompensable rating, requesting a compensable rating effective March 10, 1992. In

August of 2000, the Board determined that a ten percent disability rating was warranted

from March 10, 1992, to March 27, 1995, but that a noncompensable rating was

warranted from March 28, 1995. Mr. Garrison appealed the Board’s decision to the

Veterans Court.

      In May of 2001, the Veterans Court granted an unopposed motion to vacate the

Board’s decision and to remand the case to the Board due to the enactment of the

Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (codified

at 38 U.S.C. § 5103(a) (2000)) (“VCAA”). In September of 2003, the Board remanded

the case to the Regional Office (“RO”) for VCAA compliance and for the RO to consider

additional evidence submitted by Mr. Garrison.

      On May 17, 2004, the VA sent Mr. Garrison a VCAA notice letter informing him

that the VA was working on his appeal for service-connected compensation benefits for

his right ankle disability and that the VA needed additional information or evidence from

him. The record does not indicate whether Mr. Garrison responded to this notice letter.

Subsequently, in a September 2004 rating decision, the RO granted a ten percent




2007-7002                                   2
disability rating from March 28, 1995. Mr. Garrison appealed the RO’s decision to the

Board. On February 15, 2005, the Board concluded that a rating in excess of ten

percent was not warranted and found that the VA had “made all reasonable efforts to

assist the appellant in the development of his claim and has notified him of the

information and evidence necessary to substantiate his claim.”       Mr. Garrison timely

appealed the Board’s decision to the Veterans Court. On appeal, he argued that the

rating decision was defective because the VA’s May 17, 2004 VCAA notice letter failed

to comply with the notice requirements of 38 U.S.C. § 5103(a).          Section 5103(a)

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, in accordance with section 5103A of
      this title and any other applicable provisions of law, will attempt to obtain
      on behalf of the claimant.

      In its August 31, 2006 decision, the Veterans Court reviewed, as a question of

fact under the clearly erroneous standard of review, the Board’s finding that the VA’s

May 17, 2004 letter to Mr. Garrison complied with the notice requirements of section

5103(a).    The Veterans Court determined that the Board’s finding was “not clearly

erroneous.” Accordingly, the court affirmed the Board’s decision denying a rating in

excess of ten percent for Mr. Garrison’s ankle disability and entered judgment on

September 25, 2006.

      After judgment was entered, Mr. Garrison filed a timely notice of appeal. We

have jurisdiction over Mr. Garrison’s appeal pursuant to 38 U.S.C. § 7292.




2007-7002                                  3
                                       DISCUSSION

                                                I.

       Our authority to review decisions of the Veterans Court is governed by statute.

Pertinent to this case, pursuant to 38 U.S.C. § 7292(c), we have exclusive jurisdiction

“to review and decide any challenge to the validity of any statute or regulation or any

interpretation thereof brought under this section, and to interpret constitutional and

statutory provisions, to the extent presented and necessary to a decision.” At the same

time, pursuant to 38 U.S.C. § 7292(d), we are charged with deciding “all relevant

questions of law, including interpreting constitutional and statutory provisions.”

       On appeal, Mr. Garrison asserts that the Veterans Court committed legal error by

applying the clearly erroneous standard of review to the Board’s finding of VCAA

compliance. Mr. Garrison contends that the Veterans Court should have reviewed the

Board’s finding de novo as a question of law or as a mixed question of law and fact.

Because Mr. Garrison challenges the Veterans Court’s ruling that compliance with 38

U.S.C. § 5103(a) is a question of fact, his appeal presents a question of law. His appeal

is thus within the scope of our jurisdiction.

                                                II.

                                                A.

       The parties do not dispute that the correct standard of review hinges on whether

the Board’s finding of VCAA compliance is classified as a question of law, a question of

fact, or a mixed question of law and fact. Pursuant to 38 U.S.C. § 7261(a), the Veterans

Court reviews questions of law de novo, questions of fact for clear error, and certain

other issues under the “arbitrary, capricious, abuse of discretion, not otherwise in




2007-7002                                       4
accordance with law” standard. 1

      Mr. Garrison’s contention on appeal is that because “whether the record as a

whole shows adequate compliance with the statutory process implicates broader legal

principles characteristic of questions of law,” the Veterans Court erred in employing the

clearly erroneous standard of review in reviewing the Board’s finding that the VA

complied with the notice requirements of section 5103(a). In support of his contention,

Mr. Garrison looks to Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991), in which the

Veterans Court applied a two-step analysis in order to determine the applicability of the

presumption of soundness, 2 a mixed question of law and fact. In Bagby, the Veterans

Court explained that even though the underlying determinations regarding the

      1
             Section 7261(a) provides, in relevant part:

       (a) In any action brought under this chapter, the Court of Appeals for
           Veterans Claims, to the extent necessary to its decision and when
           presented, shall—
              (1) decide all relevant questions of law, interpret constitutional,
                  statutory, and regulatory provisions, and determine the meaning
                  or applicability of the terms of an action of the Secretary;
                  ....
              (3) hold unlawful and set aside decisions, findings (other than those
                  described in clause (4) of this subsection), conclusions, rules,
                  and regulations issued or adopted by the Secretary, the Board
                  of Veterans’ Appeals, or the Chairman of the Board found to
                  be—
                  (A) arbitrary, capricious, an abuse of discretion, or otherwise not
                       in accordance with law;
                  ....
               (4) in the case of a finding of material fact adverse to the claimant
                  made in reaching a decision in a case before the Department
                  with respect to benefits under laws administered by the
                  Secretary, hold unlawful and set aside or reverse such finding if
                  the finding is clearly erroneous.
       2
              Generally, veterans are presumed to have entered service in sound
condition, but this presumption may be rebutted “where clear and unmistakable
evidence demonstrates that the injury or disease existed before acceptance and



2007-7002                                  5
presumption of soundness are factual, “whether those facts are sufficient to satisfy the

statutory requirement that clear and unmistakable evidence be shown is a legal

determination subject to de novo review.” Id. at 227. Mr. Garrison additionally argues

that the Board is not in a better position than the Veterans Court to objectively assess

whether the core purpose of section 5103(a) has been satisfied.

      Finally, Mr. Garrison attempts to distinguish Mayfield v. Nicholson, 444 F.3d 1328

(Fed. Cir. 2006), which was relied on by the Veteran Court in this case. In Mayfield, we

held, based on Securities & Exchange Commission v. Chenery Corp., 318 U.S. 80, 87

(1943) (“Chenery I”), and Securities & Exchange Commission v. Chenery Corp., 332

U.S. 194, 196 (1947) (“Chenery II”), that the Veterans Court may not affirm a Board

determination of section 5103(a) compliance on grounds not stated by the Board.

Mayfield, 444 F.3d at 1334. We stated that “the determination by the Veterans Court

that the March 15, 2001, letter to Mrs. Mayfield satisfied the statutory and regulatory

notification requirements was a substantially factual determination of the type that

should have been made by the agency in the first instance.” Id. at 1336 (emphasis

added). Mr. Garrison urges, however, that Mayfield only stands for the proposition that

the Chenery principle 3 applies to VCAA compliance determinations. According to Mr.

Garrison, Mayfield does not speak to the issue of the standard of review to be applied to

a finding by the Board that the VA complied with the notice requirements of section

5103(a).



 (Cont’d. . . .)
enrollment and was not aggravated by such service.” 38 U.S.C. § 1111.
       3
                 The Chenery principle precludes judicial affirmance of an agency order or
determination for reasons other than those stated by the agency. Chenery I, 318 U.S.
at 87.


2007-7002                                   6
       The government responds that Mr. Garrison’s narrow interpretation of Mayfield

ignores this court’s statement that compliance with section 5103(a) is a “substantially

factual determination.” Additionally, the government directs our attention to Lennox v.

Principi, 353 F.3d 941 (Fed. Cir. 2003), in which we addressed the standard of review

for the Veterans Court’s review of a Board finding of service connection or lack thereof. 4

In Lennox, we explained that a finding of service connection is “a finding that is treated

as factual in nature when it involves applying established law to the facts at issue

without creating legal precedent.” 353 F.3d at 945. According to the government, the

Board applies the same analysis (i.e., “applying established law to the facts at issue

without creating legal precedent”) in making VCAA compliance determinations. Thus,

the Board’s finding is factual in nature.      Furthermore, the government argues, the

Board, as a fact finder, is in a better position than the Veterans Court to make a VCAA

compliance determination based on its assessment of the information provided to the

claimant in light of the particular circumstances of his or her claim.

                                             B.

       We hold that the Veterans Court applied the correct standard of review—that is,

the Veterans Court properly reviewed under a clearly erroneous standard of review the

Board’s finding that the VA complied with the notice provisions of 38 U.S.C. § 5103(a).

We thus affirm the Veterans Court’s affirmance of the Board’s decision denying a rating

in excess of ten percent for Mr. Garrison’s ankle disability.




       4
             38 U.S.C. §§ 1110 and 1131 grant veterans disability compensation for
service-connected injuries occurring in wartime and peacetime.


2007-7002                                     7
       We agree with the government that whether, in a given case, the VA has

complied with the notice requirements of section 5103(a) is a factual issue.            Mr.

Garrison’s argument that Mayfield only stands for the proposition that, under Chenery I

and II, the Board, in the first instance, should make a VCAA compliance determination

ignores our statement in Mayfield that the determination is “substantially factual.” We

reject Mr. Garrison’s contention that the determination could be characterized as

“substantially factual” for the purpose of determining whether the Chenery principle

applies, but not for the purpose of determining the proper standard of review. It would

be inconsistent for us to have previously characterized the VCAA compliance

determination as “substantially factual,” but reject this characterization now.

       Moreover, we find the reasoning in Lennox persuasive. In Lennox, we explained

that the clearly erroneous standard applies to “the [Board’s] determination of disputed

facts or the application of established law to the facts of a particular case without

creating precedent.” 353 F.3d at 945. Here, the Board’s determination as to whether

the VA complied with the notice requirements of section 5103(a) is analogous to a

Board determination regarding service connection. In the present case, as in Lennox,

there is no claim that the Board was interpreting a statute. 353 F.3d 946. Nor was the

Board establishing a legal rule to be applied to similar fact situations in future cases. To

determine VCAA compliance, the Board merely applied established law to the facts of

this case without creating or modifying the governing legal rule.

       In sum, because determining compliance with 38 U.S.C. § 5103(a) is a fact

issue, the Veterans Court did not err in applying the clearly erroneous standard of

review to the Board’s determination in this case.




2007-7002                                    8
                                  CONCLUSION

       For the foregoing reasons, the decision of the Veterans Court affirming the

Board’s decision denying a rating in excess of ten percent for Mr. Garrison’s ankle

disability is affirmed.

                                    AFFIRMED




2007-7002                               9
