## United States Court of Appeals for the Federal Circuit

03-7072

HENRY L. CONWAY, JR.,

> Claimant-Appellee,

v\.

ANTHONY J. PRINCIPI, Secretary of Veterans Affairs,

> Respondent-Appellant.

[Kenneth M. Carpenter]{.underline}, Carpenter, Chartered, of Topeka,
Kansas, argued for claimant-appellee.

[Martin F. Hockey, Jr.]{.underline}, Senior Trial Counsel, Commercial
Litigation Branch, Civil Division, United States Department of Justice,
of Washington, DC, argued for respondent-appellant. With him on the
brief were [Peter D. Keisler]{.underline}, Assistant Attorney General;
and [David M. Cohen]{.underline}, Director. Of counsel on the brief were
[Richard D. Hipolit]{.underline}, Deputy Assistant General Counsel; and
[Martie S. Adelman]{.underline}, Staff Attorney, United States
Department of Veterans Affairs, of Washington, DC.

Appealed from: United States Court of Appeals for Veterans Claims

Judge Donald L. Ivers

**United States Court of Appeals for the Federal Circuit**

03-7072

HENRY L. CONWAY, JR.,

Claimant-Appellee,

v\.

ANTHONY J. PRINCIPI,

Secretary of Veterans Affairs,

Respondent-Appellant.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

DECIDED: January 7, 2004

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Before MAYER, [Chief Judge]{.underline}, CLEVENGER and LOURIE, [Circuit
Judges]{.underline}.

CLEVENGER, [Circuit Judge]{.underline}.

The Secretary of Veterans Affairs (\"Secretary\") appeals from a
decision of the United States Court of Appeals for Veterans Claims
(\"Veteran\'s Court\") remanding a veteran\'s claim for
service-connected disability compensation to the Board of Veterans\'
Appeals (\"Board\"). The Veteran\'s Court remanded because the veteran
did not receive the notice required by the Veterans Claims Assistance
Act (\"VCAA\"), as codified at 38 U.S.C. § 5103(a). We vacate the
Veteran\'s Court decision and remand to the Veteran\'s Court because the
Veteran\'s Court committed legal error when it expressly declined to
\"take due account of the rule of prejudicial error,\" as it is required
to do by 38 U.S.C. § 7261(b)(2).

I

Enacted on November 9, 2000, the VCAA restated the responsibilities and
duties of the Secretary with respect to claims for disability
compensation filed by veterans. [See]{.underline} Pub. L. No. 106-475,
114 Stat. 2096 (Nov. 9, 2000) (codified in scattered sections of 38
U.S.C.). The portion of the VCAA relevant to this appeal appears in 38
U.S.C. § 5103(a):

> 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
> . . . will attempt to obtain on behalf of the claimant.

38 U.S.C.A. § 5103(a) (2002). The Secretary has promulgated a regulation
relating to this duty to notify: \"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.\" 38 C.F.R. § 3.159(b)(1) (2002).

II

Henry L. Conway, a veteran who had active service from 1965 to 1967,
applied to the Department of Veterans Affairs regional office (\"RO\")
for disability compensation for post-traumatic stress disorder
(\"PTSD\"), alleging that his condition was service-connected. In June
1998, the RO denied his claim, and, in December 2000, the Board denied
his appeal. The Board did not reach the issue of whether Conway suffered
from PTSD because it found that \"the evidence which is of record does
not establish that \[Conway\] was exposed to a stressor in service\"
that could have triggered the PTSD. [See]{.underline} 38 C.F.R.
§ 3.304(f) (1991) (requiring \"credible supporting evidence that the
claimed in-service stressor occurred\").

The Board also made the following statement with respect to the VCAA and
its relation to Conway\'s appeal:[^1]

> The Board notes that there have been changes in the laws pertaining to
> development of evidence and notice which must be provided to the
> veteran. [See]{.underline} Veterans Claims Assistance Act of 2000,
> Pub. L. No. 106-475, 114 Stat. 2096 (2000). The RO has not yet had an
> opportunity to consider the veteran\'s claims under these new laws.
> The Board finds, however, that a remand is not required as appropriate
> notice requirements have been met by the letters and supplemental
> statements of the case which were supplied by the RO to the veteran,
> and all relevant facts have been properly developed. The evidence
> which has been obtained includes the veteran\'s service medical
> records, service personnel records, and post-service medical treatment
> records. He has declined the opportunity to have a personal hearing.
> The veteran\'s attorney has attempted to verify the veteran\'s claimed
> stressors. He has been afforded a post-traumatic stress disorder
> examination. All evidence necessary for an equitable resolution of the
> issue on appeal has been obtained. The Board does not know of any
> additional relevant evidence that is available. In a letter dated in
> June 1999, the veteran\'s attorney requested that the case be decided
> on the evidence which is currently of record. Therefore, no further
> assistance to the veteran with the development of evidence is
> required.

Conway appealed the Board\'s decision to the Veteran\'s Court, which, on
November 20, 2002, vacated the Board\'s decision and remanded the matter
to the Board for readjudication. The Veteran\'s Court emphasized that
\"there is no evidence in the record that the Secretary ever notified
the claimant of who is responsible for obtaining the evidence necessary
to substantiate his claim,\" as is required by the VCAA under
section 5103(a). Relying on [Quartuccio v. Principi]{.underline}, 16
Vet. App. 183 (2002), the Veteran\'s Court stated that \"it is not for
the Secretary, or this Court, to predict what evidentiary development
may or may not result from such notice\" concerning who is responsible
for obtaining certain portions of evidence and information. After
discussing the portion of the Board opinion addressing the VCAA provided
above, it concluded that:

> It is difficult to discern what additional guidance VA could have
> provided to the veteran regarding what further evidence he should
> submit to substantiate his claim. While the Court will not attempt in
> this case to address the application of the harmless error doctrine,
> the time may be approaching to do so.

The Secretary appealed the Veteran\'s Court order to us.

III

We have jurisdiction to hear decisions of the Veteran\'s Court only with
respect to a \"challenge to the validity of any statute or regulation or
any interpretation thereof . . . .\" 38 U.S.C.A. § 7292(c) (2002); [see
also]{.underline} [Bernklau v. Principi]{.underline}, 291 F.3d 795, 800
(Fed. Cir. 2002). \"Unless there is a constitutional issue presented,
however, we may not review factual determinations.\"
[Bernklau]{.underline}, 291 F.3d at 800 (citing 38 U.S.C. § 7292(d)(2)).
In other words, while we can review questions of law, we cannot review
applications of law to fact. [See]{.underline} [Smith v.
Principi]{.underline}, 343 F.3d 1358, 1361 (Fed. Cir. 2003) (determining
that an issue on appeal from the Veteran\'s Court presented \"a question
of law\" rather than an \"application of law to fact\" and thus holding
that we had jurisdiction).

The Secretary raises two distinct arguments as to why the Veteran\'s
Court opinion is erroneous and characterizes each as presenting a
question of law. We review each in turn below.

A

The Secretary initially argues that the Veteran\'s Court committed legal
error in its interpretation of section 5103(a). The Veteran\'s Court
noted that \"the Board has not complied precisely with the notice
provisions of the VCAA in this case,\" and the Secretary construes this
comment to be an incorrect interpretation of section 5103(a) requiring
the VA both to use \"precise\" words in the notice that it provides and
to specifically identify evidence in all cases. We disagree with the
Secretary\'s characterization of the Veteran\'s Court opinion and
conclude that our consideration of these arguments would require review
of the Veteran\'s Court\'s application of law to fact. The Veteran\'s
Court merely stated that section 5103(a) had not been properly
administered \"in this case\"; it did not announce an interpretation of
section 5103(a). We therefore lack jurisdiction to consider the
Secretary\'s arguments addressed directly to section 5103(a).

B

The Secretary next argues that the Veteran\'s Court committed legal
error because it refused to apply the harmless error doctrine as it is
required to do under 38 U.S.C.A. § 7261(b)(2) (2002).[^2] Section
7261(b)(2) requires the Veteran\'s Court to \"take due account of the
rule of prejudicial error.\" [Id.]{.underline} The Secretary alleges
that the Veteran\'s Court violated its statutory obligations under
section 7261(b)(2) when it refused to consider whether the difference
between the notice actually given to Conway and the notice required by
section 5103(a) prejudiced Conway.

In light of the language used in the Veteran\'s Court opinion, we
conclude that the Secretary\'s section 7261(b)(2) argument presents a
question of law, namely whether there is an implicit exemption from
section 7261(b)(2) for the notice requirements in section 5103(a). The
Veteran\'s Court expressly stated that it would not consider the
prejudice, or lack thereof, suffered by Conway as a result of his
deficient notice insofar as it proclaimed that \"the Court will not
attempt in this case to address the application of the harmless error
doctrine.\" If section 7261(b)(2) does apply to all cases pending before
the Veteran\'s Court, then the Veteran\'s Court committed legal error by
shirking its duty in this case. Although the Veteran\'s Court
unquestionably does not have an obligation to expressly discuss the rule
of prejudicial error in each and every opinion, [cf.]{.underline}
[Bernklau]{.underline}, 291 F.3d at 801-02 (\"It is well-established
that a \'litigant\'s right to have all issues fully considered and ruled
on by the appellate court does not equate to a right to a full written
opinion on every issue raised.\'\" (quoting [United States v.
Garza]{.underline}, 165 F.3d 312, 314 (5th Cir. 1999))), what it cannot
do is precisely what it has done here when it flatly refused to \"take
due account of the rule of prejudicial error,\" provided section
7261(b)(2) applies to the notice provisions in section 5103(a).

IV

Conway argues that we should not hear the Secretary\'s
section 7261(b)(2) argument even if it does present a question of law
because, under [Williams v. Principi]{.underline}, 275 F.3d 1361 (Fed.
Cir. 2001), we generally decline to hear appeals in cases that the
Veteran\'s Court has remanded to the Board. We conclude that under the
test articulated in [Williams]{.underline}, we should accept
jurisdiction to hear this appeal.

A judicially crafted---and thus prudential---final judgment rule
controls this court\'s review of the Veteran\'s Court. [See]{.underline}
[id.]{.underline} at 1363. We have previously held that remand orders,
by default, do not satisfy this finality rule, [id.]{.underline} at
1364, but that they can be reviewable if they meet several criteria:

> Our cases establish that we will depart from the strict rule of
> finality when the \[Veteran\'s Court\] has remanded for further
> proceedings only if three conditions are satisfied:
>
> \(1\) there must have been a clear and final decision of the legal
> issue that (a) is separate from the remand proceedings, (b) will
> directly govern the remand proceedings or, (c) if reversed by this
> court, would render the remand proceedings unnecessary;
>
> \(2\) the resolution of the legal issues must adversely affect the
> party seeking review; and,
>
> \(3\) there must be a substantial risk that the decision would not
> survive a remand, [i.e.]{.underline}, that the remand proceeding may
> moot the issue.

[Id.]{.underline} (citations and footnotes omitted).

While remands from the Veteran\'s Court are generally not appealable,
[see]{.underline} [Myore v. Principi]{.underline}, 323 F.3d 1347, 1352
(Fed. Cir. 2003), this is one of the rare cases where such an appeal is
proper. All three [Williams]{.underline} criteria are met here with
respect to the legal argument addressing the relationship between
sections 7261(b)(2) and 5103(a). First, as discussed above, the argument
presents a \"legal issue\" that was clearly and finally decided by the
Veteran\'s Court. Furthermore, the unavailability of a harmless error
rule would directly govern the remand proceedings to the BVA, and the
insufficiency of notice is the only reason for remand given by the
Veteran\'s Court, so a reversal on this point might render the remand
proceedings unnecessary.[^3] Second, a decision by the Veteran\'s Court
not \"to take due account of the rule of prejudicial error\" would
adversely affect the Secretary, who is the party seeking review in this
Court. [Cf.]{.underline} [Travelstead v. Derwinski]{.underline}, 978
F.2d 1244, 1247-49 (Fed. Cir. 1992) (finding jurisdiction to review a
remand order of the Veteran\'s Court appealed by the Secretary). Third,
a remand would moot the notice issue, making later review of the issue
in this court difficult or impossible. Once the Secretary gives Conway
the notice required by the VCAA, questions concerning the harmlessness
of a failure to give notice are irrelevant.

V

Addressing the Secretary\'s prejudicial error argument on the merits, we
hold that there is no implicit exemption for the notice requirements of
section 5103(a) from the general statutory command in section 7261(b)(2)
that the Veteran\'s Court shall \"take due account of the rule of
prejudicial error.\" Section 7261(b)(2) is plain on its face. It applies
to all Veteran\'s Court proceedings, and nothing in the VCAA even hints
that Congress intended to exempt section 5103(a) from that general
scheme.

VI

In conclusion, we offer some words of caution intended to emphasize the
limited nature of our holding. While we establish today that the
Veteran\'s Court must \"take due account of the rule of prejudicial
error\" in all cases addressing the notice requirements in section
5103(a), we express no opinion either on what it means for the
Veteran\'s Court to \"take due account\" of the rule or on whether
Conway suffered prejudicial error in this case. We do not have a record
before us that would permit us to offer an informed legal construction
of exactly what the Veteran\'s Court must do when it \"take\[s\] due
account\" of prejudicial error, and we would surpass our jurisdiction if
we were to apply the harmless error rule as codified in section
7261(b)(2) to the facts of this case.

The BVA found that \"\[a\]ll evidence necessary for an equitable
resolution of the issue on appeal has been obtained.\" This is a Board
finding that the Veteran\'s Court must review under its own standards of
review and to which it must apply section 7261(b)(2).[^4] Additionally,
the Veteran\'s Court noted that the case presented \"what appears to be,
at most, a de minimus \[sic\] notice error,\" that \"remand for
readjudication . . . will be of questionable value,\" that \"the record
has been fully developed,\" and that \"\[i\]t is difficult to discern
what additional guidance VA could have provided to the veteran regarding
what further evidence he should submit to substantiate his claim.\"
Nonetheless, the ultimate conclusion of the effect of the rule of
prejudicial error on this case is beyond our jurisdiction and is for the
Veteran\'s Court to determine on remand.

COSTS

No costs.

# VACATED AND REMANDED

# 

[^1]: Conway\'s appeal was pending before the Board on November 9, 2000,
    the date the VCAA became effective. According to the VA\'s own
    regulation, the VA was obliged to apply the VCAA to Conway\'s case.
    [See]{.underline} [Bernklau v. Principi]{.underline}, 291 F.3d 795,
    806 & n.9 (Fed. Cir. 2002).

[^2]: At the time of the Veteran\'s Court proceedings, the provision at
    issue was found in 38 U.S.C. § 7261(b), and was moved to
    section 7261(b)(2) by Pub. L. No. 107-330, § 401, 116 Stat. 2832
    (Dec. 6, 2002), without alteration of the relevant text.

[^3]: Once the Veteran\'s Court decided to remand on the notice issue,
    it concluded that \"the additional allegations of error made by the
    veteran are moot\" and declined to address them. Thus, on remand,
    the Veteran\'s Court may both determine that the lack of proper
    notice to Conway under section 5103(a) did not prejudice Conway and
    remand the case to the Board on another issue. Alternatively, the
    Veteran\'s Court may on remand apply section 7261(b)(2) and find
    that the insufficiency of the notice was not harmless, thus
    necessitating remand to the Board. These possibilities, however, do
    not deprive us of jurisdiction under [Williams]{.underline} because
    our review of the issue would obviate the need for the remand on all
    grounds reached by the Veteran\'s Court in its opinion.

[^4]: In cases in which the Board itself did not make findings on the
    completeness of the record or on other facts permitting a conclusion
    of lack of prejudice from improper notice, it is questionable
    whether the Veteran\'s Court could arrive at the factual conclusion
    regarding prejudice in the first instance. [See]{.underline}
    [Sanchez-Benitez v. Principi]{.underline}, 259 F.3d 1356, 1363 (Fed.
    Cir. 2001) (\"\[I\]t is not the role of the Veteran\'s Court to make
    such factual determinations [sua sponte]{.underline}. Rather, it
    should wait until the issue is \'properly presented on appeal.\'\").