Forsythe v. McDonough ( 2023 )

Case: 22-1610 Document: 23 Page: 1 Filed: 03/24/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID FORSYTHE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1610
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4449, Judge Grant Jaquith.
______________________
Decided: March 24, 2023
______________________
FALEN M. LAPONZINA, ADVOCATE Nonprofit Organi-
zation, Washington, DC, argued for claimant-appellant.
RETA EMMA BEZAK, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, argued for respondent-appellee. Also repre-
sented by BRIAN M. BOYNTON, MARTIN F. HOCKEY, JR.,
PATRICIA M. MCCARTHY; JULIE HONAN, Y. KEN LEE, Office
of General Counsel, United States Department of Veterans
Affairs, Washington, DC.
Case: 22-1610 Document: 23 Page: 2 Filed: 03/24/2023
2 FORSYTHE v. MCDONOUGH
______________________
Before CHEN, MAYER, and HUGHES, Circuit Judges.
Opinion for the court filed by Circuit Judge HUGHES.
Dissenting opinion filed by Circuit Judge MAYER.
HUGHES, Circuit Judge.
David Forsythe appeals a decision from the United
States Court of Appeals for Veterans Claims holding that
the pre-decision evidentiary notice he received from the De-
partment of Veterans Affairs was legally sufficient. Be-
cause we find that the agency did not have to wait until he
submitted a claim to provide an evidentiary notice, and
that, regardless, the timing of the notice was not prejudi-
cial, we affirm.
I
Mr. Forsythe served in the United States Navy from
July 1987 to July 1990. In February 1988, he suffered a
contusion to his left shoulder after falling. X-rays taken at
the time of injury showed no dislocation or any other in-
jury, and he was prescribed Motrin. By March 1988, his
shoulder condition had resolved. Mr. Forsythe’s separation
examination report in 1990 showed no residual shoulder
conditions, and Mr. Forsythe reported that he had no is-
sues with his left shoulder at a 1993 examination.
Nearly 30 years later, in March 2019, Mr. Forsythe vis-
ited a private physician for left shoulder pain and dysfunc-
tion. Mr. Forsythe reported that he injured his shoulder
during his military service by lifting a 60-pound generator
onto a helicopter, and based on that statement, the private
physician concluded that his shoulder injury was more
likely than not related to his service. There is nothing in
the record showing that Mr. Forsythe received medical care
for a shoulder injury resulting from lifting the generator
while he was in the Navy. Soon after, Mr. Forsythe applied
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FORSYTHE v. MCDONOUGH 3
for disability benefits for a left shoulder condition by sub-
mitting a claim on VA Form 21-526EZ. Before submitting
his claim, he signed to certify that he had “received the no-
tice attached to this application titled, Notice to Vet-
eran/Service Member of Evidence Necessary to
Substantiate a Claim for Veterans Disability Compensa-
tion and Related Compensation Benefits.’” Appx54 (em-
phasis removed). As part of his application package, Mr.
Forsythe included the 2019 medical report and opinion
from the private physician, as well as a statement in sup-
port of his claim identifying the evidence he was submit-
ting.
After submitting his claim, Mr. Forsythe underwent a
VA medical examination. The agency examiner determined
that Mr. Forsythe’s shoulder condition was less likely than
not related to his service because (1) his X-rays at the time
of injury were normal, (2) Mr. Forsythe reported that his
injuries were resolved at a follow-up visit, and (3) there was
no indication of any chronic or recurring shoulder issues in
1990 or 1993 service examinations. After considering both
the VA examination and the private medical examination,
the agency denied Mr. Forsythe’s claim, and he appealed to
the Board of Veterans’ Appeals. The Board denied service
connection for left shoulder pain and dysfunction, finding
no nexus between Mr. Forsythe’s current shoulder condi-
tion and his service. In particular, the Board found the VA
examination report and service records to be more proba-
tive than the private medical report.
Mr. Forsythe appealed to the Veterans Court. Along
with challenging the denial of service connection, Mr. For-
sythe argued that he received inadequate notice about
what evidence was needed to substantiate his claim in vio-
lation of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1).
But the Veterans Court rejected that argument, noting
that “the law ‘requir[es] only generic notice,’ not an indi-
vidualized explanation of the specific evidence required for
each case.” Appx10 (alteration in original) (quoting Wilson
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4 FORSYTHE v. MCDONOUGH
v. Mansfield, 506 F.3d 1055, 1059–60 (Fed. Cir. 2007)). The
Veterans Court provided links to both the March 2018 and
September 2019 versions of VA Form 21-526EZ, and added
that the “form notice explained what a veteran needed to
do to submit a claim” and “described the information and
evidence the veteran needed to submit based on the claim
processing chosen by the veteran.” Appx10, n.3. The Veter-
ans Court found that the content of the notice satisfied the
agency’s statutory duty to assist under § 5103(a). Accord-
ingly, the Veterans Court found that there was no error by
the Board.
Mr. Forsythe filed a motion for reconsideration or, in
the alternative, a panel decision. Along with challenging
the adequacy of the content of the notice, Mr. Forsythe ar-
gued that the agency erred by providing notice on the claim
form itself, rather than waiting until after he had submit-
ted his claim to provide a more individualized notice of the
evidence required to substantiate his claim. On January
12, 2022, a three-judge panel ordered that the single-judge
decision remain the decision of the court. This appeal fol-
lowed.
II
Our review of decisions from the Veterans Court is lim-
ited by statute. “[A]ny party to the case may obtain a re-
view of [a Veterans Court] 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 . . .
that was relied on by the Court in making the decision.”
38 U.S.C. § 7292(a). Except to the extent that an appeal
presents a constitutional issue, we lack jurisdiction to re-
view any “challenge to a factual determination” or any
“challenge to a law or regulation as applied to the facts of
a particular case.” Id. § 7292(d)(2). We review statutory
and regulatory interpretations of the Veterans Court de
novo. Gazelle v. Shulkin, 868 F.3d 1006, 1009 (Fed. Cir.
2017).
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FORSYTHE v. MCDONOUGH 5
III
Mr. Forsythe’s arguments require us to interpret 38
U.S.C. § 5103(a), the statute that directs the agency to pro-
vide evidentiary notice, as well as the corresponding enact-
ing regulation, 38 C.F.R. § 3.159(b)(1). We first review the
statute and regulation to determine whether the agency
was required to wait until after Mr. Forsythe submitted his
claim to provide notice, and then whether, if such a timing
requirement existed, providing that notice on the claim
form constitutes prejudicial error.
A
Starting with the statutory text, the current version of
38 U.S.C. § 5103(a) does not require the agency to wait to
provide notice until after it receives a veteran’s application.
Before it was amended in 2012, § 5103(a) read as follows:
Upon receipt of a complete or substantially
complete application, [the VA] shall notify the
claimant . . . of any information, and any medical
or lay evidence, not previously provided to [the VA]
that is necessary to substantiate the claim.
38 U.S.C. § 5103(a)(1) (2006) (emphasis added). When this
section was amended, Congress struck the bolded lan-
guage. The statute now reads:
[The VA] shall provide to the claimant . . . by the
most effective means available, including elec-
tronic communication or notification in writing, no-
tice of any information, and any medical or lay
evidence, not previously provided to [the VA] that
is necessary to substantiate the claim.
38 U.S.C. § 5103(a)(1). This amendment explicitly removed
the requirement that the agency provide notice after receiv-
ing a complete or substantially complete application from
the claimant.
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6 FORSYTHE v. MCDONOUGH
It is also telling that Congress removed this temporal
requirement following testimony from the agency about the
inefficiencies of providing notice after a claim was filed. A
House Committee Report discussing the proposed lan-
guage explains that the amendment “would remove the re-
quirement that the [notice] be sent only after receipt of a
claim, thereby allowing VA to put notice on new claim
forms,” and would encourage veterans “to take additional
time to find, procure, and submit private medical evidence
before submitting their claim.” H.R. Rep. No. 112-241, at 9
(2011). The report also emphasizes that “it is imperative
that when VA moves the [notice] onto the application form
itself, it continues to keep in place a system that acknowl-
edges receipt of all submitted claims.” Id. (emphasis
added). This legislative history shows that Congress explic-
itly envisioned that the agency would put the notice on the
claim application form, and by consequence, claimants
would receive and review this notice before submitting
their claim.
Despite the change in statutory language and its asso-
ciated legislative history, Mr. Forsythe argues that the
agency violated § 5103(a) by providing him with an eviden-
tiary notice on the claim form, rather than waiting until
after he submitted his claim to provide such notice. In do-
ing so, Mr. Forsythe relies on the repealed language of the
statute, as well as the legislative and regulatory history,
from before the 2012 amendment was enacted. Appellant’s
Br. 11–15. Mr. Forsythe does not provide any reason for
this court to consider the pre-amendment version of the
statute, nor can he. Mr. Forsythe filed his claim in 2019,
several years after the new statute went into effect. We
therefore find that the agency was not required by statute
to wait until Mr. Forsythe had submitted his application to
provide him with the evidentiary notice.
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FORSYTHE v. MCDONOUGH 7
B
Mr. Forsythe also argues that the enacting regulation
requires the agency to wait until after a claim is submitted
to provide an evidentiary notice. Section 3.159(b)(1) reads
as follows:
[W]hen VA receives a complete or substan-
tially complete initial or supplemental claim,
VA will notify the claimant of any information and
medical or lay evidence that is necessary to sub-
stantiate the claim . . . .
38 C.F.R. § 3.159(b)(1) (emphasis added). Although the
bolded temporal language is still present in the current
version of the regulation, this language stems from the pre-
2012 version of § 5103(a), Duty to Assist, 66 Fed. Reg.
45,620, 45,630 (Aug. 29, 2001) (Final Rule), and has not
been substantively amended since the statute was
amended.
As discussed above, Congress amended § 5103(a) to re-
peal the temporal requirement after hearing testimony
from the agency about the delays under the old claims sys-
tem. And the regulatory history following the amendment
shows that the agency intended for the regulations to re-
flect the amended statute. For example, in a 2013 notice of
proposed rulemaking about the new claim forms, the
agency explained that “[t]o the extent there is any incon-
sistency between VA’s current notice and assistance rules
and the current statute as amended by Public Law 112-
154, the statute clearly governs.” Standard Claims and Ap-
peals Forms, 78 Fed. Reg. 65,490, 65,495 (Oct. 31, 2013).
The agency then said that it was “examining whether 38
C.F.R. [§] 3.159 should be amended to account for the new
statute, but [it] believes the statute is clear authority for
the changes affecting how VA provides notice [as proposed]
here.” Id. Thus, it is unlikely that the agency intended to
independently re-impose the very temporal limit that
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8 FORSYTHE v. MCDONOUGH
Congress repealed. Instead, the regulatory history shows
that this provision is outdated. 1
IV
Even if the regulation imposes an independent tem-
poral requirement on the agency to provide notice after a
claimant submits an application, its failure to send the no-
tice after receipt of a claim is harmless error. The content
of the notice Mr. Forsythe received was sufficient as a mat-
ter of law, and furthermore, Mr. Forsythe does not explain
why his claim application was impacted by when he re-
ceived the notice. Thus, any error resulting from Mr. For-
sythe receiving the notice “too early” cannot be prejudicial.
First, Mr. Forsythe argues that, by providing the notice
directly on the claim form, the agency was unable to “re-
view . . . the application and accompanying evidence to de-
termine what is missing, [and issue] a notice tailored to the
Veteran’s claim . . . .” Appellant’s Br. 14. In other words,
Mr. Forsythe seeks an individualized notice tailored to his
claim. But we squarely rejected that requirement in Wil-
son. There, we held that neither § 5103(a) nor § 3.159(b)
required the agency to provide an evidentiary notice tai-
lored to each individual claim because the statute requires
“only generic notice.” Wilson, 506 F.3d at 1059–60. Mr. For-
sythe received such a notice and certified that he received
that notice. Mr. Forsythe asks us to ignore Wilson because
1 We do not need to decide whether the regulation
imposes an independent temporal requirement because, as
discussed in the next section, there could be no prejudicial
error from sending the notice too early. That being said, it
has now been over ten years since Congress amended
§ 5103(a) and since the agency expressed a potential need
to amend the regulation. To avoid further confusion, we
urge the Secretary to amend this regulation to reflect the
statute.
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FORSYTHE v. MCDONOUGH 9
it was decided before Congress amended § 5103(a), but we
have reiterated this holding after the amendment, as well.
See, e.g., Russell v. McDonald, 586 F. App’x 589, 590–91
(Fed. Cir. 2014) (nonprecedential). Accordingly, because
the agency did not have to provide Mr. Forsythe with an
individually tailored evidentiary notice, the notice that Mr.
Forsythe received was legally sufficient.
Second, Mr. Forsythe does not explain why his applica-
tion was hindered by receiving the evidentiary notice too
early. For example, Mr. Forsythe explains that “[h]e would
have submitted private records,” Appellant’s Reply Br. 12,
but Mr. Forsythe did submit records from a private medi-
cal examination despite receiving the notice before submit-
ting his claim. Mr. Forsythe also claims that he “would
have gathered and submitted additional evidence to sub-
stantiate his claim that he previously was unaware the VA
would accept.” Appellant’s Reply Br. 12. But he does not
explain specifically why receiving the notice early pre-
vented him from collecting and submitting the evidence he
had. If Mr. Forsythe wanted to submit more evidence in
support of his claim, the timing of when he received the
notice could not have, for example, prevented him from fil-
ing a supplemental claim and asking the agency to gather
evidence from other private providers through Form 21-
4142. See Supplemental Claims, U.S. Dep’t of Veterans
Affs., https://www.va.gov/decision-reviews/supplemental-
claim (last visited Mar. 14, 2023). Thus, we see no circum-
stance in which there could have been prejudicial error re-
sulting from Mr. Forsythe receiving the notice too early.
Because the notice Mr. Forsythe received was legally
sufficient, and because receiving the notice early could not
have had any bearing on how Mr. Forsythe handled his
claim, we conclude that any error resulting from receiving
the notice as part of the claim application form was harm-
less.
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10 FORSYTHE v. MCDONOUGH
V
We have considered the rest of Mr. Forsythe’s argu-
ments and find them unpersuasive. As a result, we affirm
the Veterans Court’s decision finding that the agency sat-
isfied its pre-decision notice requirement.
AFFIRMED
COSTS
No costs.
Case: 22-1610 Document: 23 Page: 11 Filed: 03/24/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID FORSYTHE,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1610
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-4449, Judge Grant Jaquith.
______________________
MAYER, Circuit Judge, dissenting.
If the Department of Veterans Affairs (“VA”) is to fulfill
its duty to serve veterans injured in the line of duty, see 38
U.S.C. § 1110, it must, at a minimum, provide clear and
timely notice regarding how to file and substantiate a claim
for service-connected disability benefits. On this front, im-
plementation of 38 C.F.R. § 3.159(b)(1), the VA’s regulation
related to its responsibility to notify a veteran of the evi-
dence necessary to develop a claim, falls far short of the
mark. That regulation, in relevant part, provides:
[W]hen VA receives a complete or substantially com-
plete initial or supplemental claim, VA will notify
Case: 22-1610 Document: 23 Page: 12 Filed: 03/24/2023
2 FORSYTHE v. MCDONOUGH
the claimant of any information and medical or lay
evidence that is necessary to substantiate the claim
(hereafter in this paragraph referred to as the “no-
tice”). In the notice, VA will inform the claimant
which information and evidence, if any, that the
claimant is to provide to VA and which information
and evidence, if any, that VA will attempt to obtain
on behalf of the claimant.
Id. (emphasis added).
By its plain terms, section 3.159(b)(1) says that after
the VA receives a veteran’s claim for benefits, it will send
notice of any information or medical or lay evidence that is
necessary to substantiate that claim. It is undisputed,
however, that the VA did not send such notice after receipt
of David Forsythe’s claim, but only attached the notice to
VA Form 21-526EZ, the standard form used by veterans to
file disability claims. In other words, although its own reg-
ulation requires the VA to send the notice after the receipt
of a veteran’s claim, the agency only provided it at the start
of the claims process.
On appeal, the government does not dispute that the
VA’s practice of only providing notice prior to the receipt of
a claim is inconsistent with the plain language of section
3.159(b)(1). It attempts to brush aside the VA’s non-com-
pliance with its own regulation, however, by asserting that:
(1) if there is an inconsistency between a statute and a reg-
ulation an agency has issued pursuant to that statute, the
statute controls; and (2) since section 3.159(b)(1)’s require-
ment that the VA send notice after the receipt of a claim is
inconsistent with 38 U.S.C. § 5103(a)(1), that statute con-
trols. See Appellee’s Br. 15–17. The fundamental flaw in
this argument is that nothing in the language of the cur-
rent version of section 5103(a)(1) is inconsistent with send-
ing notice after the receipt of a veteran’s claim. That
statute, in relevant part, states:
Case: 22-1610 Document: 23 Page: 13 Filed: 03/24/2023
FORSYTHE v. MCDONOUGH 3
[T]he Secretary shall provide to the claimant and
the claimant’s representative, if any, by the most
effective means available, including electronic com-
munication or notification in writing, notice of any
information, and any medical or lay evidence, not
previously provided to the Secretary that is neces-
sary to substantiate the claim. As part of that no-
tice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be pro-
vided by the claimant and which portion, if any, the
Secretary, in accordance with [38 U.S.C. § 5103A]
and any other applicable provisions of law, will at-
tempt to obtain on behalf of the claimant.
38 U.S.C. § 5103(a)(1).
While section 5103(a)(1) spells out, in general terms,
what the VA needs to include in the notice it provides to
veterans, it does not specify when that notice should be pro-
vided. Accordingly, the government’s argument that the
VA need not comply with the timing requirement of section
3.159(b)(1) because it is inconsistent with section
5103(a)(1) falls flat.
The government notes that section 5103(a)(1) previ-
ously began with the phrase “[u]pon receipt of a complete
or substantially complete application,” 38 U.S.C.
§ 5103(a)(1) (2008), but that Congress eliminated that
phrase when it amended the statute in 2012. See Appel-
lee’s Br. 9–10. The government further notes that certain
statements contained in the legislative history of the 2012
amendment support the view that it was intended to elim-
inate the requirement that the VA send notice after the re-
ceipt of a claim. Id. at 10 (citing H.R. Rep. No. 112-241, at
9 (2011)). Thus, in the government’s view, Forsythe, the
veteran here, is not entitled to rely on the plain language
of section 3.159(b)(1) regarding the timing of the VA’s no-
tice because the legislative history of the 2012 amendment
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4 FORSYTHE v. MCDONOUGH
to section 5103(a)(1) indicates that Congress intended to
eliminate the requirement of post-claim notice.
The short answer to this argument is that this intent
did not explicitly make it into the law, and a veteran should
not be forced to compare and contrast different iterations
of a statute and conduct a thorough study of its legislative
history in order to divine the interpretation of an imple-
menting regulation. Rather, he should be entitled to as-
sume that the VA means what it says when it states, in
section 3.159(b)(1), that notice regarding what further evi-
dence is necessary to substantiate a claim will be sent after
receipt of the claim. See, e.g., Comer v. Peake, 552 F.3d
1362, 1369 (Fed. Cir. 2009) (explaining that “[t]he VA dis-
ability compensation system is not meant to be a trap for
the unwary, or a stratagem to deny compensation to a vet-
eran who has a valid claim, but who may be unaware of the
various forms of compensation available to him”).
Importantly, moreover, even assuming that Congress
intended that the 2012 amendment would eliminate the re-
quirement that the VA send notice after receipt of a claim,
the government points to nothing in the relevant legisla-
tive history suggesting that Congress intended to prohibit
the agency from doing so. Accordingly, even viewing sec-
tion 5103(a)(1) through the prism of the legislative history
cited by the government, the statute is not inconsistent
with a choice by the VA to implement a policy to provide
notice even in the post-claim period.
Finally, apart from the timing issue, there are signifi-
cant questions as to whether the VA’s standard notice,
from a substantive perspective, is sufficient to apprise vet-
erans of the evidence necessary to bring a successful claim
for disability benefits. In Wilson v. Mansfield, we held that
while section 5103(a)(1) does not “require[] specific notice
of the missing evidence with respect to a particular claim,”
the notice provided by the VA must nonetheless “identify
the information and evidence necessary to substantiate the
Case: 22-1610 Document: 23 Page: 15 Filed: 03/24/2023
FORSYTHE v. MCDONOUGH 5
particular type of claim being asserted by the veteran.” 506
F.3d 1055, 1059 (Fed. Cir. 2007) (emphasis added). How-
ever, the notice attached to VA Form 21-526EZ covers
claims for twelve different types of VA benefits, most of
which have distinct evidentiary requirements, making it
difficult for a veteran to ascertain precisely what kind of
evidence must be submitted. See Mayfield v. Nicholson,
444 F.3d 1328, 1333 (Fed. Cir. 2006) (explaining that sec-
tion 5103(a)(1) requires the VA to issue notice “in a form
that enables the claimant to understand the process” for
obtaining disability benefits). Furthermore, while the VA’s
notice refers to “lay evidence,” it does not necessarily con-
vey, in plain terms, that a claim for disability benefits can,
in certain circumstances, be supported by statements from
those with whom a veteran served as well as statements
from a veteran’s relatives and friends. See Buchanan v.
Nicholson, 451 F.3d 1331, 1333, 1337 (Fed. Cir. 2006) (not-
ing that the veteran had “submitted several affidavits from
lay witnesses, including his relatives, acquaintances, and
a sergeant who led the unit to which [the veteran] was as-
signed in 1973,” and explaining that if “the lay evidence
presented by a veteran is credible and ultimately compe-
tent, the lack of contemporaneous medical evidence should
not be an absolute bar to the veteran’s ability to prove his
claim of entitlement to disability benefits based on that
competent lay evidence”).
Forsythe contends, moreover, that the standard notice
issued by the VA is “prohibitively dense,” noting that it was
composed using a very small, nine-point font and contains
seven pages of single-spaced lines. Appellant’s Reply Br. 7.
He further asserts that many deserving veterans are de-
terred from filing claims because the standard notice is
“complicated, overwhelming, confusing, [and] visually dif-
ficult to read” and fails to clearly explain the different re-
quirements for the various types of available VA benefits.
Id. at 8.
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6 FORSYTHE v. MCDONOUGH
I would remand this case for the VA to apply its regu-
lation.