           UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS


                                            NO . 04-1009

                                 ALFONSO MEDRANO , APPELLANT ,

                                                 V.


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


                         On Appeal from the Board of Veterans' Appeals



                                   (Decided     April 23, 2007 )


       Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.

       Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian
B. Rippel, Deputy Assistant General Counsel; and Thomas E. Sullivan, all of Washington, D.C., for
the appellee.

       Before HAGEL, LANCE, and SCHOELEN, Judges.

       LANCE, Judge, filed the opinion of the Court. SCHOELEN, Judge, filed a concurring
opinion.

       LANCE, Judge: The appellant, Alfonso Medrano, appeals, through counsel, an April 29,
2004, decision of the Board of Veterans' Appeals (Board) that denied entitlement to service
connection for depression and post-traumatic stress disorder (PTSD). Record (R.) at 1-13. For the
reasons that follow, the Court will affirm the April 2004 Board decision.


                                             I. FACTS
       On August 1, 2000, the appellant claimed entitlement to disability compensation for PTSD.
R. at 25-28. In April 2001, the appellant was provided with a letter that advised him of the new
notice provisions contained in the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No.
106-475, § 3(a), 114 Stat. 2096 (codified, in part, at 38 U.S.C. § 5103). R. at 135. On July 31, 2001,
a VA regional office (RO) denied the appellant's claim. R. at 144-46. The appellant filed a timely
Notice of Disagreement (NOD), which the RO also construed as a new and separate claim for
entitlement to service connection for depression. R. at 151. The RO denied the claim for depression
in an October 2002 decision. R. at 154.
       The appellant, through counsel, filed an NOD with respect to the October 2002 denial of
service connection for depression. R. at 160-61. Counsel for the appellant argued that the VCAA
required the RO to attempt to obtain service records from the U.S. Army. R. at 160. In addition,
counsel for the appellant asserted that the "VCAA specifically requires the RO to advise the veteran
of the evidence necessary to substantiate his claim, and to further advise him what part of that
evidence the veteran is to provide and what part will be the responsibility of VA. No such VCAA
notification has been given." R. at 161. The appellant was provided separate Statements of the Case
(SOC) for each of the two claims on appeal. R. at 165, 174.
       The appellant appealed his claims to the Board. Counsel for the appellant argued in a
January 2003 letter:
       Although the RO does cite and describe the [VCAA] as controlling law, it fails to
       apply that law. The veteran has provided his lay account of an "incident" in service,
       and his lay testimony is consistent with the places and circumstances of service. He
       has been diagnosed with depression by his private doctor. Under these
       circumstances, VCAA requires a medical examination and/or opinion to connect the
       veteran's depression with his active duty.

R. at 188.
       In February 2003, the RO transmitted a Supplemental Statement of the Case (SSOC) for both
claims in response to additional medical evidence submitted by the appellant, as well as the
appellant's January 2003 Substantive Appeal. R. at 252, 188. The appellant, through counsel,
continued to disagree with the RO's adjudication of his claims and requested that the RO "acquit its
duties under VCAA, and . . . provide his attorney with copies of all documents obtained or secured,
including a copy of the RO's [compensation and pension] referral sheet and the examination report."
R. at 257. In fact, the appellant's counsel corresponded with the RO on six other occasions in an
effort to raise new arguments or suggest additional development under the VCAA. R. at 266, 275,
278, 285, 292, 295. The RO responded with three additional SSOCs, which rejected counsel's


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arguments and readjudicated the claims where new evidence was provided. R. at 271, 281, 288. On
December 4, 2003, the RO transmitted a second VCAA letter to the appellant that pertained to the
appellant's service connection claims for PTSD and depression. R. at 297, Supplemental (Supp.) R.
at 298A-298B. Counsel for the appellant acknowledged receipt of the VCAA letter and asked the
following question:
        As I understand it, the RO has requested copies of the veteran's military records and
        there are no such records available. On page four of the letter, you set forth what the
        evidence must show to support the claim, among these to show there was an event
        in service which caused injury or disease. In view of the lack of military records,
        may the veteran establish this element of the claim by and through his lay evidence
        alone? Please review and advise.

R. at 301. The RO informed counsel for the appellant that a veteran could testify as to observed
events, but could not render a medical diagnosis or opinion. R. at 304. Upon receipt of this
response, counsel for the appellant indicated to the RO that the appellant had no further evidence to
submit. R. at 303.
        In the decision on appeal, the Board found that the April 2001 VCAA letter satisfied the
Secretary's notice obligations with respect to the PTSD claim. However, the Board found that the
December 2003 notice letter for the depression claim was not provided until after the initial,
unfavorable RO decision. Nonetheless, citing 38 U.S.C. § 7261(b)(2) and Conway v. Principi, 353
F.3d 1369 (Fed. Cir. 2004), the Board determined that error to be harmless. The Board reasoned that
submissions from the appellant and his attorney demonstrated actual knowledge of the evidence
necessary to substantiate the depression claim. R. at 4.
        On appeal to the Court, the appellant argues only that the Secretary failed to provide adequate
notice prior to the initial, adverse adjudication of each claim. Appellant's Brief (Br.) at 4-5. In other
words, he does not argue that the content of the notice was deficient, only that the notice was not
provided in a timely manner. Briefing in this matter was completed on March 4, 2005, prior to the
Court's issuance of Mayfield v. Nicholson, 19 Vet.App. 103 (2005) (Mayfield I). Pursuant to the
appellant's unopposed motion of May 2, 2005, both parties were provided the opportunity to submit
supplemental briefing "regarding the prejudicial nature of . . . VA's error." Appellant's Unopposed
Motion for Supplemental Briefing at 2. In the appellant's supplemental brief, he argues that the


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content of the April 2001 and December 2003 letters was deficient in several respects. He contends
further that he was prejudiced by the Secretary's failure to issue timely and compliant notice.


                                          II. ANALYSIS
                                         A. VCAA Notice
       Pursuant to the VCAA, upon receipt of a complete or substantially complete application for
benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction,
the Secretary is required to inform the claimant of the information and evidence not of record that
(1) is necessary to substantiate the claim, (2) the Secretary will seek to obtain, if any, and (3) the
claimant is expected to provide, if any, and to request that the claimant provide any evidence in his
possession that pertains to the claim. See 38 U.S.C. § 5103(a); Pelegrini v. Principi, 18 Vet.App.
112, 119, 121 (2004); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002); 38 C.F.R. § 3.159(b)
(2006). Under the statute and the corresponding regulation, VA is to provide affirmative notification
to the claimant prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328,
1333 (Fed. Cir. 2006) (Mayfield II). However, VA may cure timing defects by issuing a fully
compliant VCAA notification and then readjudicating the claim. Id. at 1333-34.
       Whether VA communications satisfy the statutory and regulatory notification requirements
is a "substantially factual determination" that VA must make in the first instance. Id. at 1335. The
Court reviews the Board's factual findings under the "clearly erroneous" standard of review.
38 U.S.C. § 7261(a)(4). "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)). The Court may not substitute its judgment
for the factual determinations of the Board on issues of material fact merely because the Court would
have decided those issues differently in the first instance. See id.
       As an initial matter, the Court notes that it will not entertain the arguments regarding errors
in the content of the VCAA notice raised for the first time in the appellant's supplemental brief, as
the appellant's own motion for supplemental briefing was limited to "the prejudicial nature" of the
VCAA error alleged in his initial brief. See Carbino v. West, 168 F.3d 32, 34 (Fed. Cir. 1999)


                                                  4
("improper or late presentation of an issue or argument . . . ordinarily should not be considered"),
aff'g sub nom. Carbino v. Gober, 10 Vet.App. 507, 511 (1997) (declining to review argument first
raised in appellant's reply brief); Tubianosa v. Derwinski, 3 Vet.App. 181, 184 (1992) (The Secretary
"should have developed and presented all of his arguments in his initial pleading") (emphasis in
original); Fugere v. Derwinski, 1 Vet.App. 103, 105 (1990) ("Advancing different arguments at
successive stages of the appellate process does not serve the interests of the parties or the Court.
Such a practice hinders the decision-making process and raises the undesirable specter of piecemeal
litigation."). The appellant raised a single allegation of error in his initial brief–a timing-of-notice
error. See infra at 3. The Board determined that the content of the notice letters provided for each
claim complied with the statutory requirements, and the appellant has not properly challenged that
finding. Therefore, the only issue before the Court is whether the Secretary failed to provide timely
VCAA notice, and if so, the effect of any such error.
       In the case of the appellant's PTSD claim, notice was provided by the Secretary within one
year of the date his claim was filed, and four months before the initial RO adjudication of the claim.
R. at 135. The appellant's argument that the Secretary provided untimely notice for development of
the PTSD claim is unpersuasive. The Secretary's issuance of the April 2001 VCAA notice letter was
in accordance with the timing requirements of the statute and subsequent caselaw. See 38 U.S.C.
§ 5103(a); Mayfield II, 444 F.3d at 1333.
       However, the Board made a separate determination that the December 2003 notice provided
to the appellant after the initial adjudication of the appellant's depression claim, was not timely. R.
at 4. The Court is not permitted to reverse findings of fact favorable to a claimant made by the Board
pursuant to its statutory authority. See 38 U.S.C. § 7261(a)(4) (as amended by the Veterans Benefits
Act of 2002, Pub.L. No. 107-330, § 401, 116 Stat. 2820, 2832 (Dec. 6, 2002) (providing for Court
to reverse or set aside only findings of fact "adverse to the claimant")); Hines v. Principi, 18
Vet.App. 227, 239 (2004); Roberson v. Principi, 17 Vet.App. 135, 139 (2003) (per curiam order).
Having found that notice was not provided until after the initial unfavorable decision by the RO, the
Board then concluded that, "[a]ssuming for the sake of argument that pre-decision notice is required,
any defect in this regard is harmless error in this case." R. at 4. Because the Board found the VCAA




                                                   5
notice to be untimely, the Court is left to determine the effect of such untimely notice and the Board's
finding of no prejudice.
                     B. Board's Ability to Assess Whether an Error is Prejudicial
          Although Congress has not specifically mandated that the Board assess prejudicial error, the
Court has recently held that the Board is not prohibited from considering "the doctrine of harmless
error" in the VCAA-notice context. Mayfield v. Nicholson, 20 Vet.App. 537, 543 (2006) (Mayfield
III). The question then becomes, what standard does the Court employ in reviewing the Board's
determination of whether an error by the Secretary constitutes prejudicial error? As explained below,
we will give no deference to a Board finding regarding the application of the doctrine of harmless
error.
          Section 7261 of title 38, U.S. Code, governs the scope of the Court's review of Board
decisions. The scope of the Court's review varies depending on whether a veteran is challenging a
conclusion of law or finding of fact. The Court reviews questions of law de novo without any
deference to the Board's conclusions. 38 U.S.C. § 7261(a)(1); see Smith v. Gober, 14 Vet.App. 227,
230 (2000). On the other hand, the Court gives deference to the Board's findings of fact, provided
they are not clearly erroneous. 38 U.S.C. § 7261(a)(4); see Gilbert v. Derwinski, 1 Vet.App. 49, 52
(1990).
          The Court has not had occasion to consider whether "taking due account of the rule of
prejudicial error" constitutes a finding of fact or conclusion of law. Compare Overton v. Nicholson,
20 Vet.App. 427, 438 (2006) (To determine whether the appellant was prejudiced by any notice
error, the Court "must review all of the evidence that presumably was reviewed by the Board at the
time of its decision."), and Thompson v. Gober, 14 Vet.App. 187, 191 (2000) ("One of the most
common instances where the Court is required to find facts in the first instance is on the issue of
nonprejudicial error.") (Holdaway, J., dissenting) with Curry v. Brown, 7 Vet.App. 59, 66 (1994)
(holding that the Board's determination of whether a veteran would be prejudiced by its deciding a
question or questions not addressed by the RO is a question of law subject to de novo review). The
Court need not consume time and paper to participate in the semantic game of labeling prejudicial




                                                   6
error determinations.1 It is enough to say that Congress has imparted to the Court the ultimate
responsibility for determining whether an error below was prejudicial. 38 U.S.C. § 7261(b)(2); see
also Conway, 353 F.3d at 1375. "[I]n those instances in which Congress has not spoken and in
which the issue falls somewhere between a pristine legal standard and a simple historical fact, the
fact/law distinction at times has turned on a determination that, as a matter of the sound
administration of justice, one judicial actor is better positioned than another to decide the issue in
question." Miller v. Fenton, 474 U.S. 104, 114 (1985). In this instance, Congress has spoken. "In
making the determinations under [38 U.S.C. § 7261(a)] of this section, the Court shall take due
account of the rule of prejudicial error." 38 U.S.C. § 7261(b) (emphasis added); see also Gilda
Indus. v. U.S., 446 F.3d 1271, 1282 (Fed. Cir. 2006) ("Statutory instructions using the term 'shall'
are ordinarily treated as mandatory." (citing Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26, 35 (1998); Escoe v. Zerbst, 295 U.S. 490, 493 (1935))). 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.
             C. The Court's Assessment of the Effect of the Timing-of-Notice Error
       The appellant asserts that, because he was first provided VCAA notice regarding his
depression claim after the RO had already denied it, he was deprived of the opportunity to
meaningfully participate in that initial adjudication. The Secretary contends that the VCAA error



       1
          The Court is generally precluded from finding facts in the first instance. See 38 U.S.C.
§ 7261(c). But see Barrett v. Nicholson, 466 F.3d 1038, 1043 (Fed. Cir. 2006) (affirming Court's
development of facts to resolve contested jurisdictional issues). If the assessment of prejudicial error
was truly an exercise in factfinding, the Court would be precluded from such an inquiry. Instead,
the Court believes the reasoning of Judge Holdaway's dissent in Thompson has merit. See
Thompson, 14 Vet.App. at 191 (noting that determining whether an error is prejudicial to the
appellant "can only be done by looking at the error in the context of the entire record and making a
qualitative judgment that the error did or did not have an impact on the decision"). Congress's
prohibition of de novo factfinding and its mandate that the Court take due account of the rule of
prejudicial error, two parts of the same statute, must both be given full effect. See United States v.
Nordic Village, Inc., 503 U.S. 30, 36 (1992).

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was not prejudicial because the appellant, through counsel, indicated that he had no further evidence
to submit upon receipt of the December 2003 VCAA letter. Secretary's Response at 4.
       In Mayfield II, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that
the language of the VCAA statute required affirmative notification prior to the initial adjudication.
Id. at 1333.   However, VA may cure timing defects through compliance with proper remedial
measures, namely the issuance of compliant notice followed by the readjudication of the claim. See
id. at 1333-34 ("The timing problem, however, was cured by the Board's remand following the
enactment of the VCAA for a new VCAA notification followed by readjudication of Mrs. Mayfield's
claim."); see Prickett v. Nicholson, 20 Vet.App. 370, 376 (2006). In Mayfield III, the Court held that
compliant notice followed by readjudication of the claim in the form of an SSOC effectively cured
the underlying VCAA timing error as contemplated by the Federal Circuit in Mayfield II. Mayfield
III, 20 Vet.App. at 541-42. Similarly, the Court in Prickett held that a VCAA timing error could be
cured by issuance of compliant notice and a subsequent SOC. Prickett, 20 Vet.App. at 377. The
Court reasoned that the claim adjudication process should not start from scratch following remedial
notice because the Secretary's regulations provided for an alternative (and more efficient) means of
adjudication in the form of an SOC. Id. at 377. Although the question was not presented in that
case, the Prickett Court suggested that, where a claimant fails to submit or identify for VA
procurement additional evidence following compliant notice, the matter would not have to be
remanded for readjudication by the RO. Id. at 377 n.2.
       The Court finds footnote two in Prickett instructive. Under the Secretary's regulations, an
SSOC is issued when the RO receives additional pertinent evidence subsequent to the most recent
SOC or SSOC. 38 C.F.R. § 19.31(b)(1) (2006). In Prickett, the veteran actually submitted
additional evidence after the initial adjudication and in response to the untimely VCAA letter.
Readjudication was necessary in light of the new evidence, and the procedural posture was such that
an SOC was the prescribed format. See Prickett, 20 Vet.App. at 377; see also 38 C.F.R. § 19.28
(2006) (SOC must be issued upon receipt of an NOD); 38 C.F.R. § 19.31(a) (SSOC is prepared only
after an SOC has already been issued.).




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       Here, the appellant did not submit additional evidence subsequent to the remedial notice.
To the contrary, after receiving postadjudicatory, content-compliant VCAA notice, he affirmatively
indicated through counsel that he had no further evidence to submit.2
       In this case, the purpose of the VCAA was satisfied when the Secretary provided the
appellant with (1) content-compliant VCAA notice and (2) the opportunity for readjudication after
the submission of additional evidence and (3) the appellant's attorney indicated to the RO that the
appellant had no further evidence to submit. In the absence of additional evidence, which the
appellant indicated he did not possess–nor did he identify evidence in VA's possession for VA to
obtain– returning this claim to the RO would have resulted in a readjudication of the matter by the
RO on exactly the same evidence and law previously considered by the RO. The appellant would
gain nothing were the Court to require this; there is simply no reason to disturb the most recent RO
adjudication of record prior to issuance of the remedial and compliant notice. See Soyini v.
Derwinski, 1 Vet. App. 540, 546 (1991) (stating that "strict adherence [to the law] does not dictate
an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in
a particular case. Such adherence would result in this Court's unnecessarily imposing additional
burdens on the B[oard] and [the Secretary] with no benefit flowing to the veteran").
       In sum, we hold that, although VA did not strictly comply with the Federal Circuit's holding
in Mayfield II that a timing-of-notice error could be cured by providing compliant notice, followed
by a readjudication, such an error was not prejudicial in this case. 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



       2
           The Court finds the nature of the appellant's representation before the RO and the Board
to be a factor in this case. See Andrews v. Nicholson, 421 F.3d 1278, 1283 (Fed. Cir. 2005) (noting
that the requirement that a veteran's motion to revise based on clear and unmistakable error be read
sympathetically "does not apply to pleadings filed by counsel"); Overton v. Nicholson, 20 Vet.App.
427, 438 (2006) (noting that representation by counsel at the agency level "is a factor that must be
considered when determining whether that appellant has been prejudiced by any notice error"). Here,
the appellant secured representation by counsel after the October 2002 RO decision. R. at 163. And,
during the course of his representation, counsel for the appellant made repeated requests for
evidentiary development pursuant to provisions of the VCAA and raised various arguments on the
merits of the appellant's claims.

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to conduct a subsequent readjudication is not prejudicial because the result of such a readjudication
would be no different than the previous adjudication.3 See Mayfield I, 19 Vet.App. at 116 (stating
that "a demonstration by one party that an error did not affect the outcome of a case would establish
that there was or could be no prejudice.") (emphasis omitted). In such a case, a remand would be
utterly useless.


                                        III. CONCLUSION
        Accordingly, the April 29, 2004, decision on appeal is AFFIRMED.


        SCHOELEN, Judge, concurring: I wholeheartedly join the Court's opinion in full except for
footnote two. I do not find any significance in the nature of Mr. Medrano's representation as it
relates to the timing-of-notice error, except that the Court must apply the rule that an attorney's
actions and communications are directly attributable to his client. Overton v. Nicholson, 20 Vet.App.
427, 438-39 (2006).




        3
          This is not to say that a claimant's statement that he had nothing further to submit could cure
a content-of-notice error. In such a case, without VA having fully informed the claimant of the
information or evidence necessary to substantiate the claim, a claimant's assertion that he or she had
nothing further to submit would be based on incomplete information and would not indicate that the
claimant was not prejudiced by the content-of-notice error. See Janssen v. Principi, 15 Vet.App.
370, 373 (2001) (per curiam) (holding that to waive a procedural right a represented appellant "must
first possess a right, he must have knowledge of that right, and he must intend, voluntarily and freely,
to relinquish or surrender that right").

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