Vazquez-Flores: VCAA Refined Again
The decision in Angel Vazquez-Flores v. Eric K. Shinkseki, Opinion Number 05-0355, decided October 22, 2010, involved the impact and reach of the U.S. Supreme Court’s decision in Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
As a review the Federal Circuit Court of Appeals had held that all types of VCAA (Veteran Claims Assistance Act of 2000) notice errors were presumed to be prejudicial and that the Secretary had the burden of proving the notice error was not prejudicial. This was a change from the Court of Appeals for Veteran Claims earlier rulings that the VCAA can be divided into four elements: (1) notice of what information or evidence is necessary to substantiate the claim; (2) notice of what subset of the necessary information or evidence, if any, that the claimant is to provide; (3) notice of what subset of the necessary information or evidence, if any, that the VA will attempt to obtain; and (4) a general notification that the claimant may submit any other evidence that he has that may be relevant to the claim. In Mayfield v. Nicholson (2005), the Court of Appeals for Veteran Claims had held that although the first type of notice error was presumed prejudicial, the claimant was responsible for proving prejudice from the other types of notice errors.
On appeal, the Federal Circuit reversed. Reasoning that the VCAA was intended to be particularly pro-claimant and therefore obligated the VA to assist veterans claiming benefits, it held that all VCAA-notice errors should be presumed prejudicial, requiring reversal unless the VA can show that the error did not affect the essential fairness of the adjudication. The VA can show this by demonstrating: (1) that any defect was cured by actual knowledge; (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. The Federal Circuit disagreed with the Court of Appeals for Veterans Claims’ precedent deeming certain elements of the required notice more substantial than others. The court reasoned that allowing the VA to remedy the errors with post-decisional notices cannot satisfy the specific notification duties imposed by Congress on the VA, and presuming no prejudice does just that. Finding that the interpretation of the Court of Appeals for Veteran Claims conflicted with the uniquely pro-claimant system constructed by Congress in the VCAA, the Federal Circuit held all types of notice errors would be presumed prejudicial.
The Supreme Court concluded that the veterans will bear the burden of demonstrating that the VA’s errors made a substantive difference on the outcome of their claims cases. Justice Souter filed a dissenting opinion that was joined by Justices Stevens and Ginsburg. The dissent argued that the framework established by the Federal Circuit - which presumes that a notice error was prejudicial unless the claimant has actual knowledge that cures the defect or is ineligible for benefits as a matter of law - provides the VA with an incentive to perform its obligation to claimants.
Regarding this case, the Court found that despite the changes in the notice law, section 5103(a) still requires the VA for increased ratings claims to notify the veteran that they should provide or ask the VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the veteran’s employment. A simple notice advising a veteran to submit evidence that his condition has worsened is not sufficient.
After finding a notice error, the Court considered whether it was prejudicial to the veteran. The Court attempted to clarify who has the burden of showing prejudice or non-prejudice. The court said the “burden shifting only occurs when a notice is wholly defective as to a key element needed to substantiate a claim for benefits”.
However, in a claim for increased benefits, the claim can be shown by evidence of a worsened disability can depending on the Diagnostic Code can be shown by more objective evidence such as specific measurements or a test result, or more general evidence such as impact upon employment or daily life. The Court concluded that notice to provide evidence how a disability has worsened, without notice to provide evidence of its impact on employment is unlike the notice required in Mayfield I and thus the veteran must show the were prejudiced.
As applied, the veteran here was provided notice to provide evidence his disability had worsened. The Court said this was not he total absence of notice as to a key element. Furthermore, the scheduler rating for his condition does not explicitly take into account its impact on his employment. Therefore, “the inadequacy of this notice does not have a natural, adverse effect on the ability of [the veteran] to meaningfully participate in the processing of his claim and the essential fairness of the adjudication. Thus, the burden of demonstrating prejudice falls on [the veteran].”
The Court also considered the possibility of differing notices from the VA. It noted that a second corrective notice might correct an initial notice but also found “The potential confusion generated by differing notices might be clarified or negated by actions taken in the subsequent processing of the claim, or otherwise ultimately shown by the record not to have confused the claimant. In sum, simply because subsequent notice, good on its face, is provided to the claimant does not mean that the notice was adequate. Whether notice is confusing is a fact-specific determination based on the totality of the circumstances.”
The result is that winning an appeal on a VCAA error on a claim for an increased rating is going to become more difficult. Additionally, veterans may not get the tailored notice they have gotten in the past. Thus, it will be imperative that they know they should provide evidence of the impact of a worsened condition on employability and daily life.
Decided by C.J. Kasold, and Judges Greene, and Hagel.