                       NOTE: This disposition is nonprecedential.


  United States Court of Appeals for the Federal Circuit
                                       2007-7255

                                ALFONSO MEDRANO,

                                                           Claimant-Appellant,

                                           v.

                   ERIC K. SHINSEKI , Secretary of Veterans Affairs,

                                                           Respondent-Appellee.
                                                           .


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

        Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for respondent-
appellee. With him on the brief was Jeanne E. Davidson, Director. Of counsel on the brief
were David J. Barrans, Deputy Assistant General Counsel, and Michael G. Daugherty,
Staff Attorney, Office of the General Counsel, United States Department of Veterans
Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Alan G. Lance, Sr.
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit

                                      2007-7255

                                  ALFONSO MEDRANO,

                                                      Claimant-Appellant,

                                           v.

                    ERIC K. SHINSEKI, Secretary of Veterans Affairs,

                                                      Respondent-Appellee.


Appeal from the United States Court of Appeals for Veterans Claims in 04-1009,
Judge Alan G. Lance, Sr.

                            ___________________________

                               DECIDED: June 3, 2009
                            ___________________________


Before GAJARSA, MOORE, Circuit Judges, and ARTERTON, District Judge. *

GAJARSA, Circuit Judge.

       Claimant-Appellant Alfonso Medrano appeals a decision of the Court of Appeals

for Veterans Claims (“Veterans Court”) affirming a decision of the Board of Veterans’

Appeals (“Board”) that denied his claims for service connection for depression and post-

traumatic stress disorder (“PTSD”).    See Medrano v. Nicholson, 21 Vet. App. 165

(2007). Because the Veterans Court properly considered the rule of harmless error, we

dismiss-in-part and affirm-in-part.



       *
              The Honorable Janet Bond Arterton, United States District Court for the
District of Connecticut, sitting by designation.
                                   BACKGROUND

      Mr. Medrano served in the Army from 1948 until 1952. He filed a claim for

disability compensation for PTSD on August 1, 2000. The Veterans Claims Assistance

Act of 2000 (“VCAA”), Pub. L. 106-475, 114 Stat. 2096 (2000), took effect while that

claim was pending, and, pursuant to that act, the Regional Office (“RO”) provided notice

to Mr. Medrano of his statutory rights and evidentiary obligations in April 2001. His

claim was denied on July 31, 2001, and Mr. Medrano filed a notice of disagreement

(“NOD”).

      The RO construed the NOD to state a new and separate claim for compensation

for depression.   The depression claim was denied in October 2002, at which point

Mr. Medrano obtained representation, and filed another NOD.          Mr. Medrano was

provided with a separate Statement of the Case (“SOC”) for each of the two claims on

appeal. Throughout 2003, the RO and Mr. Medrano communicated, and, when counsel

submitted additional medical evidence, the RO readjudicated Mr. Medrano’s claims

through several Supplemental Statements of the Case (“SSOC”).          It was not until

December 4, 2003, however, that the RO provided Mr. Medrano with a VCAA-compliant

notice for his depression claim. In response to the VCAA notice letter regarding the

depression claim, Mr. Medrano’s counsel wrote to the RO that “[t]he veteran has

nothing more to submit and requests immediate certification and transfer of the matter

to the Board.”

      On appeal to the Board, Mr. Medrano argued that the VA had not met its

obligations under the VCAA, 38 U.S.C. § 5103, which requires that the VA provide

notice to the veteran of the evidence he must submit in support of his claim. The Board



2007-7255                                  2
agreed with Mr. Medrano that the required VCAA notice regarding the depression claim

had not been provided until after the initial adjudication of his claim, and was therefore

untimely.   However, it determined that the “error was nonprejudicial because, upon

receipt of content-complying notice, the veteran did not produce any additional

information or evidence.     Again, in January 2004 [after receipt of VCAA-compliant

notice] he indicated he had nothing more to submit.” With respect to the claim for

PTSD, the Board found that notice was proper, and denied the claim.

       The Veterans Court affirmed the Board’s denial of both claims. The Veterans

Court reviewed the Board’s harmless error determination without deference, but

ultimately reached the same conclusion. The court explained that in general, notice is

required prior to the initial adjudication. Medrano, 21 Vet. App. at 169 (citing Mayfield v.

Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006) (“Mayfield II”)). Relying on Mayfield v.

Nicholson, 20 Vet. App. 537, 541–42 (2006) (“Mayfield III”), aff’d, 499 F.3d 1317 (Fed.

Cir. 2007) (“Mayfield IV”), however, the Veterans Court noted that a re-adjudication of a

claim through the SSOC procedure could cure the originally improper notice. Medrano,

21 Vet. App. at 172. The court then extended that principal. It held:

              If, after VA provides content-compliant VCAA notice—albeit
              in an untimely manner—and a claimant, who is represented
              by an attorney, subsequently informs VA that there is no
              further evidence to submit, the failure by the RO to conduct a
              subsequent readjudication is not prejudicial because the
              result of such a readjudication would be no different than the
              previous adjudication.

Medrano, 21 Vet. App. at 173.




2007-7255                                    3
                                      DISCUSSION

       We have jurisdiction to review the Veterans Court’s decision under 38 U.S.C.

§ 7292. We review the Veterans Court’s interpretation of a statute de novo. Boggs v.

Peake, 520 F.3d 1330, 1333 (Fed. Cir. 2008).           Mr. Medrano makes two related

challenges to the decision below, both of which are related to the “rule of prejudicial

error” and how it has been applied in this case. Neither has merit.

       First, Mr. Medrano argues that the Veterans Court’s decision should be reversed

on the ground that the Board lacks jurisdiction to consider harmless error. The Board’s

jurisdiction is set out in 38 U.S.C. § 7104 (2006), which provides for “one review on

appeal to the Secretary” for any question “subject to decision by the Secretary” under

38 U.S.C. § 511(a) (2006).      The statute is silent as to whether the Board should

consider harmless error. This is in contrast to the Veterans Court’s jurisdictional grant,

which explicitly provides that that court must “take due account of the rule of prejudicial

error.” 38 U.S.C. § 7261(b)(2) (2006).

       According to Mr. Medrano, because the Board and the Veterans Court have

jurisdictional grants with different discussions of prejudicial error, the two bodies must

have different authority to consider that question. In particular, Mr. Medrano refers to

Russello v. United States for the proposition that “where Congress includes particular

language in one section of a statute but omits it in another section of the same Act, it is

generally presumed that Congress acts intentionally and purposely in the disparate

inclusion or exclusion.” 464 U.S. 16, 23 (1983) (internal quotation marks and brackets

omitted).




2007-7255                                   4
       Regardless of the merits of this argument, Mr. Medrano does not adequately

explain why the Board’s discussion, even if improper, impacts our analysis of the

decision we review here, namely, the decision of the Veterans Court.               We lack

jurisdiction to review decisions of the Board. The jurisdictional statute which gives this

court authority to conduct the present review states that we may provide a “review of the

[Veterans Court’s] decision with respect to the validity of a decision of the Court on a

rule of law or of any statute or regulation . . . or any interpretation thereof (other than a

determination as to a factual matter) that was relied on by the Court in making the

decision.” 38 U.S.C. § 7292(a) (2006) (emphasis added). The decision by the Veterans

Court expressly declined to rely on the Board’s analysis of harmless error. It stated:

              Deferring to any Board determinations in the context of
              prejudicial error would be tantamount to ceding the authority
              that Congress has vested in this Court; reassignment of the
              Court’s statutory obligation is something we are not inclined,
              nor authorized, to do. Accordingly, the Court will review
              Board determinations of prejudicial error de novo, in other
              words, without any deference to the Board.

Medrano, 21 Vet. App. at 171. The Veterans Court could not have more clearly stated

that it properly undertook its statutorily mandated consideration of the rule of harmless

error, and that it did not rely on the Board’s analysis in any way. We may consider only

whether any error has been shown in the Veterans Court’s decision under review.

Here, that decision does not rely on the Board’s authority to consider harmless error,

and thus we cannot review the scope of that authority. Accordingly, we dismiss this

portion of the appeal.

       Second, Mr. Medrano argues that the Veterans Court failed to apply a

presumption of prejudice in his favor when considering whether the timing of notice



2007-7255                                    5
error was harmless, and that he was entitled to such a presumption. In Sanders v.

Nicholson, 487 F.3d 881 (Fed. Cir. 2007), this court held that any defect in VCAA notice

leads to a rebuttable presumption that the veteran was prejudiced by that error. After

oral argument in Mr. Medrano’s case, however, the Supreme Court reversed this court’s

holding in Sanders. Shinseki v. Sanders, No. 07-1209, 2009 WL 1045952 (U.S. April

21, 2009). The Court rejected the Federal Circuit’s reasoning in part because “the

Federal Circuit's framework requires the VA, not the claimant, to explain why the error is

harmless. This Court has said that the party that seeks to have a judgment set aside

because of an erroneous ruling carries the burden of showing that prejudice resulted.”

Id. at *9 (internal quotation marks omitted). In light of the Supreme Court’s holding, Mr.

Medrano’s assertion of error fails.

       In the decision under review, the Veterans Court properly considered the rule of

harmless error and found that the VA had established that the timing of notice error was

harmless. We therefore dismiss-in-part and affirm-in part.




2007-7255                                   6
