Prickett v. Mansfield , 257 F. App'x 288 ( 2007 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7057
PAULINE PRICKETT,
Claimant-Appellant,
v.
GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,
Respondent-Appellee.
Michael P. Horan, Paralyzed Veterans of America, of Washington, DC, argued
for claimant-appellant. Of counsel was Mark R. Lippman, The Veterans Law Group, of
La Jolla, California.
Martin F. Hockey, Jr., Assistant Director, Commercial Litigation Branch, Civil
Division, United States Department of Justice, of Washington, DC, argued for
respondent-appellee. On the brief were Peter D. Keisler, Acting Attorney General,
Jeanne E. Davidson, Director. Of counsel on the brief were David J. Barrans, Deputy
Assistant General Counsel, and Y. Ken Lee, Staff Attorney, United States Department
of Veterans Affairs, of Washington, DC.
Appealed from: United States Court of Appeals for Veterans Claims
Judge Robert N. Davis
NOTE: This disposition is nonprecedential.
United States Court of Appeals for the Federal Circuit
2007-7057
PAULINE PRICKETT,
Claimant-Appellant,
v.
GORDON H. MANSFIELD, Acting Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: December 4, 2007
___________________________
Before RADER, BRYSON, and MOORE Circuit Judges.
RADER, Circuit Judge.
The United States Court of Appeals for Veterans Claims affirmed the decision of
the Board of Veterans’ Appeals (Board) that denied Pauline Prickett’s claim for
dependency and indemnity compensation (DIC). The Board had determined that the
death of Mrs. Prickett’s husband was not service connected. Because the notice under
the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C. § 5103(a), was
adequate, this court affirms.
I
Mr. Prickett was a World War II veteran who served from December 1942 to
October 1945 in the U.S. Air Corps Ground Crew. He was awarded service connection
for psychosis at a disability rating of 100 percent which, by 1950, had been reduced to
10 percent due to marked improvement. In the early 1980’s Mr. Prickett was diagnosed
with hypertension and potential coronary heart disease. In 1984, the Board affirmed the
denial of service connection for these conditions. Mr. Prickett died in 1991 of end stage
cardiomyopathy resulting from arthriosclerotic cardiovascular disease with diabetes
mellitus as a significant contributor, but not the underlying cause of death. Mrs. Prickett
filed a claim for DIC, which was denied in April of 1991 for lack of service connection.
Because the decision was not appealed, it became final. Mrs. Prickett’s attempt to
reopen the claim in February of 2000 was unsuccessful. That May, Mrs. Prickett filed a
notice of disagreement with the Department of Veterans Affairs (VA) regarding its
refusal to reopen.
On May 29, 2001 the VA Review Officer sent Mrs. Prickett a letter concerning the
VA’s duty to notify her of the type evidence needed to substantiate her claim and its
duty to assist her in obtaining evidence under the VCAA. In August of 2001, a VA
Decision Review Officer issued a decision in the form of a statement of case (SOC)
reopening the case. In that decision, the Decision Review Officer determined that Mrs.
Prickett had submitted new and material evidence, but denied the claim for lack of any
relationship between Mr. Prickett’s service-connected psychosis and his death. During
a hearing which took place in November of 2001, Mrs. Prickett was informed repeatedly
of the need for medical evidence to demonstrate the nexus between the veteran’s
service and the cause of death. Mrs. Prickett submitted no such evidence.
The Decision Review Officer requested that a cardiologist and an endocrinologist
or diabetes specialist investigate Mr. Prickett’s file to find any evidence of service
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connection. These specialists found no such connection. Therefore, the officer issued
a supplemental statement of case (SSOC) in February of 2002 informing Mrs. Prickett
of the specialists’ opinions and giving her the opportunity to make any comments before
submission of the case to the Board.
On October 15, 2002, the Board affirmed the denial of Mrs. Prickett’s claim. The
Veterans Court granted the VA’s request to remand the case to allow the Board to
provide a more detailed explanation regarding its compliance with the VCAA’s
notification requirements. On November 7, 2003, in its second decision, the Board
again affirmed. The Board determined that the VA had satisfied its notification
requirements through “the rating decision, the SOC, the SSOC, and letters sent to the
appellant.” Importantly, however, this second decision of the Board also described in
extensive detail the satisfaction of the VCAA notice requirement by the May 29, 2001
notice letter. The Veterans Court affirmed the Board’s decision to deny benefits. Mrs.
Prickett now appeals.
II
The VCAA requires the VA to assist veterans in claiming benefits. As part of this
assistance, the VA must notify claimants of the requirements to substantiate their
claims. 38 U.S.C. § 5103(a). The statute provides:
Upon receipt of a complete or substantially complete
application, the Secretary shall notify the claimant and the
claimant's representative, if any, of any information, and any
medical or lay evidence, not previously provided to the
Secretary that is necessary to substantiate the claim. As part
of that notice, the Secretary shall indicate which portion of
that information and evidence, if any, is to be provided by the
claimant and which portion, if any, the Secretary, in
accordance with section 5103(a) of this title and any other
2007-7057 3
applicable provisions of law, will attempt to obtain on behalf
of the claimant.
Mrs. Prickett argues that the VA should be bound by the alleged “judicial
admission” in its January 2005 brief to the Veterans Court regarding the adequacy of
the notice. Mrs. Prickett argues that this court should not allow the VA to alter its
arguments now in view of its intervening decision in Mayfield v. Nicholson, 444 F.3d
1328 (Fed. Cir. 2006) (Mayfield II). Mayfield II held that proper notice under 38 U.S.C. §
5103(a) cannot consist of an aggregation of pre-decisional and post-decisional
documents:
The purpose of the statute and the corresponding regulation
is to require that the VA provide affirmative notification to the
claimant prior to the initial decision in the case as to the
evidence that is needed and who shall be responsible for
providing it. See Paralyzed Veterans of Am. v. Sec'y of
Veterans Affairs, 345 F.3d 1334, 1344-45 (Fed. Cir. 2003);
66 Fed. Reg. 45,620, 45,622-23 (Aug. 29, 2001). That 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. The text of section 5103(b),
which refers to the one-year period ‘from the date of such
notice,’ confirms that Congress envisioned a deliberate act
of notification directed to meeting the requirements of
section 5103, not an assemblage of bits of information drawn
from multiple communications issued for unrelated purposes.
Mayfield II, 444 F.3d at 1333; see also Mayfield v. Nicholson, 499 F.3d 1317, 1320
(Fed. Cir. 2007) (Mayfield III).
In its January 2005 brief before the Veterans Court, the VA summarized the
Board’s previous decision from October 15, 2002. In that brief, the VA asserted
satisfaction of the VCAA notification requirements through “the rating decision, SOC,
SSOCs, and letters sent to the appellant, including the May 2001 letter.” In the Board’s
2007-7057 4
second determination on November 7, 2003, it repeated the VA’s summary comments
that the “discussions in the rating decision, the SOC, the SSOC, and the letters sent to
the appellant informed her of the information and evidence needed to substantiate the
claim . . . .”
In view of Mayfield II, the Board’s and VA’s reliance on pre- and post-decisional
documents for notice was not proper. These misstatements without the benefit of our
guidance in Mayfield II, however, do not alter the character of the actual notice
accorded Mrs. Prickett. The Board made factual findings sufficient to establish that the
May 29, 2001 letter satisfied the notice requirements of 38 U.S.C. § 5103(a). The
November 7, 2003 Board decision describes with particularity all the ways in which this
May 29, 2001 notice letter satisfied the statute:
The communications, such as a letter from the RO dated in
May 2001, provided the appellant with a specific explanation
of the type of evidence necessary to substantiate her claim,
as well as an explanation of what evidence was to be
provided by her and what evidence the VA would attempt to
obtain on his (sic) behalf … The letter noted that to establish
entitlement to service connected death benefits, the
evidence must show three things. First the evidence must
show the cause of death. The letter advised the appellant
that she should give the VA this evidence. Second, the
evidence must show an injury, disease, or other event in
service. The letter advised her that the RO would get
service medical records and review them to see if they
showed that the veteran had an injury or disease in service,
or suffered and event in service causing injury or disease.
… Third the letter stated that the evidence must show a
relationship between the cause of death and the injury,
disease or other event in service. It was noted that this was
usually shown by a death certificate or in other medical
records or medical opinions. The RO advised that they
would request this medical evidence if she told them about it.
If appropriate, they would also try to get the evidence by
requesting a medical opinion from a VA doctor or the
appellant could give a medical opinion from her own doctor.
2007-7057 5
The appellant was further advised that the RO needed
additional evidence from her, including the names or any
person, agency, or company who had relevant records, the
address of such person, agency, or company, the
approximate time frame covered by the records, and the
condition treated in the case of medical records.
This detailed Board description shows that the May 29, 2001 VCAA notification
letter satisfied the notice requirement. Moreover, as the Veterans Court suggested, the
Board’s allusion to pre- and post-decisional documents may have referred to all of the
VA’s notification requirements, not just § 5103(a). Prickett v. Nicholson, 20 Vet. App.
370, 376 (2006). In any event, because the May 29, 2001, letter unquestionably
satisfied the notice requirement of § 5103(a), this court discerns no consequence from
the VA and Board generalized comments mentioning other non-VCAA notice
documents.
These comments also do not offend case law on judicial admissions. Mrs.
Prickett cites several cases in which declarations contained within court pleadings
became binding judicial admissions. See, e.g., E.C. McAfee A/C Bristol Metal Indus. of
Canada Ltd. v. U.S., 832 F.2d 152, 155 (Fed. Cir. 1987). The statements in the January
2005 brief, however, are not judicial admissions with knowledge of the applicable law,
but were merely characterizations of the facts known to both parties. These
characterizations occurred before this court’s decision in Mayfield II. At that time, they
adequately described requirements under applicable law. Thus, these passing
characterizations were not concessions of the type that were deemed to be judicial
admissions in cases such as McAfee.
2007-7057 6
III
Lastly, Mrs. Prickett contends that the Veterans Court erred in its determination
that the August 2001 SOC issued in the case was a VA Decision Review Officer review
decision. She argues that the SOC must come before the VA Decision Review Officer
review decision according to 38 C.F.R. § 3.2600 and the decision cannot be issued
within an SOC. 38 C.F.R. § 3.2600 governs the review of veteran’s claims. 38 C.F.R. §
3.2600 (d) provides that a “review decision . . . will include a summary of the evidence,
a citation to pertinent laws, a discussion of how those laws affect the decision, and a
summary of the reasons for the decision.” 38 C.F.R. § 3.2600 (f) provides that “unless a
claimant withdraws his or her notice of disagreement as a result of this review process,
VA will proceed with the traditional appellate process by issuing a statement of the
case.” Mrs. Prickett argues that these two provisions indicate that the review decision
and the SOC are two separate documents with one following the other.
Although the regulation does refer to a review decision and an SOC as separate
documents, nothing prohibits a Decision Review Officer from issuing a decision within
an SOC. In fact, the regulation defining an SOC, 38 C.F.R. § 19.29, appears similar to
the information required in a review decision. As the Veterans Court held, it makes no
difference whether the officer issues a decision within an SOC or issues the decision
and the SOC separately. The Veterans Court stated:
Here, the August 2001 SOC clearly indicates that Mrs.
Prickett’s service connection claim for the cause of her
husband’s death had been properly readjudicated following
VA’s attempts to cure a timing-of-notice defect. The August
2001 SOC informed Mrs. Prickett that after a review of the
evidence received before and after the May 2001 notification
letter, her service-connection-cause-of-death claim remained
denied. The SOC also provided a statement of reasons or
2007-7057 7
bases for that denial, in particular, noting the lack of
evidence demonstrating a nexus between the veteran’s
service and his cause of death. Accordingly, the August
2001 SOC complied with all applicable due process and
notification requirements.
Prickett, 20 Vet. App. at 377.
Mrs. Prickett received every opportunity to resolve her dispute before the matter
proceeded to the Board. She even received additional opportunities to offer testimony
and submit more evidence after the issuance of the August 2001 SOC. This additional
information was considered by the VA and an SSOC was issued in February of 2002.
Id. As the Veterans Court stated, “the [Decision Review Officer] made every attempt to
resolve Mrs. Prickett’s dispute before the matter was transferred to the Board.” Id.
Accordingly, this court perceives full compliance with applicable due process and
notification requirements. Moreover the VA could properly issue its decision within an
SOC without preparing a separate document. This court stated in Mayfield III that an
SSOC may properly announce the VA’s readjudication decision. Mayfield III, 499 F.3d
at 1323 (“… [W]e squarely hold today that where strict compliance with the timing
requirements would have been impossible because a claim was pending with the board
or agency prior to the amended version of section 5103(a), an SSOC may properly
announce the VA’s readjudication decision.”).
IV
Because assertions made by the VA in its January 2005 brief to the Veterans
Court prior to this court’s guidance in Mayfield II were not “judicial admissions,” and
because a VA decision may be contained within an SOC, this court holds that the
2007-7057 8
Veterans Court did not err in affirming the Board’s decision. Accordingly, the decision of
the Veterans Court is affirmed.
2007-7057 9