             UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                                     NO . 04-1072

                                 THERESE M. GEORGE-HARVEY , APPELLANT ,

                                                            V.


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


                              On Appeal from the Board of Veterans’ Appeals

                                          (Decided       June 29, 2007         )



         Mark R. Lippman, of La Jolla, California, for the appellant.

        Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian
R. Rippel, Deputy Assistant General Counsel; and John D. McNamee, Senior Appellate Attorney;
all of Washington, D.C., for the appellee.

         Before GREENE, Chief Judge, and HAGEL and DAVIS, Judges.

         HAGEL, Judge: Therese M. George-Harvey appeals through counsel a May 13, 2004, Board
of Veterans' Appeals (Board) decision in which the Board denied her claim for dependency and
indemnity compensation.1 Record (R.) at 3, 15. The Court has jurisdiction pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a) to review the May 2004 Board decision. Because Ms. George-Harvey was
not prejudiced by any failure of VA in its duty to provide notice under 38 U.S.C. § 5103(a), the
Court will affirm the May 2004 Board decision.


                                                      I. FACTS
         Veteran Aron Harvey served honorably in the U.S. Marine Corps from September 1975 to
December 1996, including service in Somalia during Operation Restore Hope. In March1999, a VA



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         The Board decision phrases its finding as a denial of entitlement to service connection for the cause of the death
of Ms. George-Harvey's husband, veteran Aron Harvey; service connection is one element of the claim for benefits.
regional office denied Mr. Harvey disability benefits for post-traumatic stress disorder and
dysthymic disorder. Mr. Harvey had several service-connected disabilities, including low back pain
with degenerative changes, impingement syndrome of the right and left shoulders, cervical strain,
degenerative changes of the right and left knees, and headaches post head trauma. These conditions
were assigned a combined disability rating of 50%, effective as of April 1997. R. at 66. Mr. Harvey
had chronic low back pain following a laminectomy, for which he was prescribed morphine and
other pain medications, but reported being in constant pain and was diagnosed with poor pain
control. He was also in counseling for post-traumatic stress disorder and depression. On
November 5, 1999, he was awarded total disability based on individual unemployability. On
February 5, 2002, Mr. Harvey died in a single-vehicle accident when the truck he was driving left
the road and struck a tree. The autopsy reported that his blood alcohol concentration was 0.22%.
          Mr. Harvey's wife, Ms. George-Harvey, applied for dependency and indemnity compensation
in March 2002, stating that her husband's service-connected disabilities created severe pain and
depression and that the prescribed drugs and alcohol he used to dull the pain contributed
substantially and materially to the cause of his death. In April 2002, the VA regional office sent
Ms. George-Harvey a letter that attempted to explain VA's duty to assist her in her claim. The letter
stated:
          We will try to help you get such things as medical records, employment records, or
          records from other Federal agencies. You must give us enough information about
          these records so that we can request them from the person or agency who has them.
          It's still your responsibility to make sure these records are received by us.

          We will also assist you by providing a medical examination or getting a medical
          opinion if we decide it's necessary to make a decision on your claim.

          ....

          [Regarding evidence showing a nexus between the cause of death and Mr. Harvey's
          disability]. This is usually shown by the death certificate, or in other medical records
          or medical opinions. We will request this medical evidence for you if you tell us
          about it. If appropriate, we may also try to get this evidence for you by requesting
          a medical opinion from a VA doctor, or you can give us a medical opinion from your
          own doctor.

R. at 291-92.


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       The regional office denied Ms. George-Harvey's claim in July 2002, without her having
submitted any additional evidence. Ms. George-Harvey filed a Notice of Disagreement in
September 2002, stating her belief that her husband's death was caused by his "secondary addiction
to pain medication, including alcohol used to subdue his daily chronic physical pain and major
depression." R. at 301. An April 9, 2003, letter from Dr. Robert Brunst stated that he had treated
Mr. Harvey for several years with antidepressants to manage a major depression that stemmed from
his chronic back pain due to service injuries. R. at 304. Ms. George-Harvey also submitted a letter
from Dr. Karen Schoenfeld-Smith, a licensed psychologist, who treated Mr. Harvey in group and
individual therapy at the Vista Vet Center, Vista, California, from April 1997 until March 2001,
addressing his service in Somalia and chronic pain. R. at 306.
       On May 30, 2003, the regional office issued a Statement of the Case finding no service
connection for the cause of Mr. Harvey's death, following consideration of VA treatment records
and examination reports, counseling records from the Vista Vet Center from May 1997 to May 2001,
Ms. George-Harvey's Notice of Disagreement, and the statement from Dr. Brunst. R. at 310. The
regional office found that "[T]here is no evidence in any of the veteran's records that he had a
problem with drug or alcohol addiction or misuse as a result of depression or his orthopedic
problems." R. at 324. According to the Statement of the Case, the regional office performed a de
novo review. "This means that we have done a new and complete review of the evidence in your
claim file without deference to the prior VA Rating Decision." R. at 323.
       Ms. George-Harvey appealed to the Board in July 2003, submitting statements from
neighbors and others as lay evidence to support her contention that Mr. Harvey self-medicated with
alcohol to ease his chronic service-connected pain; she argued that this self-medication contributed
to the accident that caused his death. In October 2003, the regional office issued a Supplemental
Statement of the Case that considered the statements Ms. George-Harvey had submitted, but found
that service connection was not established for the cause of Mr. Harvey's death. "Although the
above statements note the veteran had a history of alcohol usage, and in [the neighbor's] statement
she noted the veteran drank to self[-]medicate due to pain, this is based on lay testimony only with
no supporting medical evidence demonstrating the veteran was in fact using alcohol to self[-
]medicate." R. at 339-340.


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        On October 2003, Ms. George-Harvey perfected her appeal to the Board, stating, "I have no
further information." R. at 342. The Board denied her claim in the May 2004 decision now before
the Court.
        In its decision, the Board found that there was no competent medical evidence to support Ms.
George-Harvey's assertion that "the intoxication that led to [Mr. Harvey's] death was the result of
[his] use of alcohol to relieve pain resulting from service-connected disability." R. at 2. In addition,
the Board found that Ms. George-Harvey had been given notice as required by the Veterans Claims
Assistance Act, P.L. No. 106-475, 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a)), through
the July 2002 regional office decision, the May 2003 Statement of the Case, the October 2003
Supplemental Statement of the Case, and "associated correspondence." R. at 4. The Board also
stated: "In addition, [Ms. George-Harvey] was advised of the specific [notice] requirements with
respect to the issue adjudicated below by letter dated in April 2002." Id.
        On appeal, Ms. George-Harvey argues that VA failed to provide her with the requisite notice
in three ways. First, she argues that the only predecisional notice, the April 2002 letter, was
misleading as to the time in which she could submit additional evidence. Appellant's Brief (Br.) at
4. Second, she argues that the April 2002 letter failed to provide notice of whether she or VA
would be ultimately responsible for obtaining the evidence necessary to substantiate her claim. Id.
at 7. Finally, she argues that because the notice in the April 2002 letter was defective, VA failed in
its obligation to provide her with notice before the initial determination by the agency of original
jurisdiction. Id. at 10.
        The Secretary argues that the April 2002 letter was not misleading and adequately notified
Ms. George-Harvey of each party's responsibility for obtaining evidence. Secretary's Br. at 5, 7-8.
The Secretary also argues, in the alternative, that any noncompliance with the notice requirements
was nonprejudicial because Ms. George-Harvey demonstrated actual knowledge of each party's
responsibility by submitting evidence and because she failed to plead with specificity how she was
prejudiced by inadequate notice. Id. at 8-10.




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                                           II. ANALYSIS
                                     A. Laws Regarding Claim
       Section 5103(a) of title 38, U.S. Code, requires that VA inform the claimant of (1) the
information and evidence not of record that is necessary to substantiate the claim, (2) which portion
of that information and evidence, if any, that the claimant is expected to provide, and (3) which
portion of that information and evidence, if any, that VA will seek to obtain. 38 U.S.C. § 5103(a).
In addition, 38 C.F.R. § 3.159(b)(1) (2006) imposes a fourth requirement that VA "request that the
claimant provide any evidence in the claimant's possession that pertains to the claim." See Pelegrini
v. Principi, 18 Vet.App. 112, 120 (2004). Failure to comply with any of these requirements may
constitute remandable error. See id. at 121-22; Quartuccio v. Principi, 16 Vet.App. 183, 188 (2000).
Whether a claimant has received adequate notice under the Veterans Claims Assistance Act is a
"substantially factual determination" by the Board. Mayfield v. Nicholson, 444 F.3d 1328, 1335
(Fed. Cir. 2006) (Mayfield II). This Court has interpreted that language to mean that such a
determination is reviewed under a "clearly erroneous" standard of review. See Prickett v. Nicholson,
20 Vet.App. 370, 378 (2006). "A factual finding 'is "clearly erroneous" when although there is
evidence to support it, the reviewing court on the entire evidence is left with the definite and firm
conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).
       "[VA's] duty of affirmative notification is not satisfied by various post-decisional
communications from which a claimant might have been able to infer what evidence the VA found
lacking in the claimant's presentation." Mayfield II, 444 F.3d at 1333. If the Court finds such error,
it must "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2)(Supp. 2007); see
Conway v. Principi, 353 F. 3d 1369, 1374-75 (Fed. Cir. 2004). The U.S. Court of Appeals for the
Federal Circuit (Federal Circuit) recently held that a notice error in any of the four required elements
"should be presumed prejudicial, requiring reversal unless [] VA can show that the error did not
affect the essential fairness of the adjudication." Sanders v. Nicholson, ___ F.3d ___, ____, No. 06-
7001, slip op. at 13-14 , 2007 WL 1427720 (Fed. Cir. May 16, 2007).




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                                        B. Misleading Notice
        As to Ms. George-Harvey's first allegation of notice error, that the April 2002 letter was
misleading as to the time limit for submitting evidence, the Court concurs. The first sentence in the
disputed paragraph states categorically, "If the evidence is not received within 30 days, your claim
will be considered on the basis of the evidence we already have." R. at 292 (boldface in original).
The paragraph then discusses submission of evidence within one year from the date of the letter, but
only in the context of the earliest possible effective date. This information is confusing at best and
misleading at worst. The Federal Circuit has stated that giving notice to claimants that they must
submit evidence within 30 days is a misleading characterization of the law that may lead
unsuspecting claimants to believe they must provide requested information or evidence within 30
days even though the statute unequivocally provides a claimant one year to submit evidence; such
notice "ensures confusion and inefficiency, and is potentially prejudicial to claimant's statutory one-
year period for providing information." Paralyzed Veterans of Am. v. Sec 'y. of Veterans Affairs, 345
F.3d 1334, 1346 (Fed. Cir. 2003) (PVA).
            Having found error, the Court must "take due account of the rule of prejudicial error."
38 U.S.C. § 7261(b)(2); see Conway, 353 F.3d at 1374-75. Any notice error will be presumed
prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication
and persuade the Court that the purpose of the notice was not frustrated, for example by
demonstrating "(1) that any defect was cured by actual knowledge on the part of the claimant,
(2) that a reasonable person could be expected to understand from the notice what was needed, or
(3) that a benefit could not have been awarded as a matter of law." Sanders, ___ F.3d at ___, slip
op. at 7.
        Here, the Secretary argues that Ms. George-Harvey had actual knowledge that she could
submit evidence more than 30 days after the April 2002 letter, as demonstrated by the fact that she
did submit new evidence after the 30-day period. In April 2003, she submitted letters from Dr.
Brunst and Dr. Schoenfeld-Smith of the Vista Vet Center. The regional office considered Dr.
Brunst's letter and the treatment records from the Vista Vet Center before issuing the May 2003
Statement of the Case. Ms. George-Harvey submitted additional evidence in July 2003, lay
statements alleging that Mr. Harvey's use of alcohol was to self-medicate for his chronic pain. The


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regional office considered this evidence before issuing its October 2003 Supplemental Statement
of the Case.
        The Secretary has demonstrated that the confusing notice given in the April 2002 letter as
to the time limit for submitting evidence did not affect the essential fairness of the adjudication. Ms.
George-Harvey arguably had actual knowledge that she could submit evidence more than 30 days
after the date of the letter as demonstrated by the fact that she did so. Moreover, the agency of
original jurisdiction considered such evidence. The Federal Circuit's concern in Paralyzed Veterans
of America was that misleading notice about the one-year period in which to submit evidence would
lead to claims being prematurely denied because claimants, believing they only had 30 days, would
fail to submit additional information or evidence to substantiate their claims. PVA, 354 F.3d at
1346. Here, whether or not Ms. George-Harvey had actual knowledge that she could submit
additional evidence after the 30-day period, she did in fact submit additional evidence and it was
considered by the regional office. Thus, the purpose of the notice was not frustrated and the
misleading notice error did not affect the essential fairness of the adjudication. See Sanders, ___
F.3d at ___, slip op. at 14. Thus, the misleading notice was not prejudicial to Ms. George-Harvey.
                               C. Second and Third Element Notice
        Ms. George-Harvey's second allegation of error is that the April 2002 letter did not explain
which evidence, if any, VA was responsible for obtaining and which evidence, if any, she was
responsible for obtaining; that is, it failed to comply with the second and third notice elements.
Whether notice was adequate is a finding of fact by the Board that this Court reviews under the
"clearly erroneous" standard. See Mayfield II, 444 F.3d at 1335; Prickett, 20 Vet.App. at 378. The
April 2002 letter, while not a model of clarity, nevertheless did provide Ms. George-Harvey notice
that, although VA would try to help her obtain such things as medical records, employment records,
or records from other Federal agencies, she needed to identify the information to be sought and "It's
still your responsibility to make sure these records are received by us." R. at 290. In addition, the
letter explained the three elements necessary to establish entitlement for service-connected death
benefits and discussed who should provide the evidence to show each element. Regarding the cause
of death, the letter states: "This is usually shown by the veteran's death certificate or other evidence
showing cause of death. You should give us this evidence." Id. Regarding a relationship between
the cause of death and the in-service injury, disease, or event, the April 2002 letter said, "We will

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request this medical evidence for you if you tell us about it. If appropriate, we may also try to get
this evidence for you by requesting a medical opinion from a VA doctor, or you can give us a
medical opinion from your own doctor." R. at 291. The Court finds that the Board's determination
that this letter provided Ms. George-Harvey adequate notice was not clearly erroneous.
                                     D. Timing of Notice Error
       Ms. George-Harvey's argument that VA failed to provide her with notice before the initial
determination by the agency of original jurisdiction relies on her contentions that the notice provided
in the April 2002 letter, the only predecisional document relied on by the Board, was inadequate.
The Board relied on a variety of postdecisional documents to find that VA had complied with the
notice provisions of 38 U.S.C. § 5103(a); such documents do not satisfy the duty to notify. See
Mayfield II, 444 F.3d at 1333. However, the Board also stated, "In addition, [Ms. George-Harvey]
was advised of the specific [notice] requirements with respect to the issue adjudicated below by
letter dated in April 2002." R. at 4. Thus, the Board determined that the April 2002 notice letter
alone satisfied VA's section 5103(a) duty-to-notify requirements. See Prickett, 20 Vet.App. at 376.
       Because the notice error in the April 2002 letter, the confusing language concerning the time
limits for submitting evidence, was not prejudicial to Ms. George-Harvey and the Board was not
clearly erroneous in determining that that letter provided adequate notice, Ms. George-Harvey's
argument that she did not receive adequate predecisional notice fails.


                                        III. CONCLUSION
       Upon consideration of the foregoing, the May 13, 2004, Board decision is AFFIRMED.




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