**UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT**

97-7029

RICHARD E. FLESHMAN,

Claimant‑Appellant,

v\.

TOGO D. WEST, JR.,

Acting Secretary of Veterans Affairs,

Respondent‑Appellee.

[Stephen F. Smith]{.underline}, Sidley & Austin, of Washington, D.C.,
argued for claimant-appellant.

[Rodger D. Citron]{.underline}, Attorney, Commercial Litigation Branch,
Civil Division, Department of Justice, of Washington, D.C., argued for
the respondent-appellee. With him on the brief were [Frank W.
Hunger]{.underline}, Assistant Attorney General, [David M.
Cohen]{.underline}, Director, and [Joseph A. Kijewski]{.underline},
Assistant Director. Also on the brief were [Richard J.
Hipolit]{.underline}, Deputy Assistant, General Counsel, and [Kerwin E.
Miller]{.underline}, Attorney, Department of Veterans Affairs, of
Washington, D.C.

Appealed from: United States Court of Veterans Appeals

Judge Ivers

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

97-7029

RICHARD E. FLESHMAN,

Claimant-Appellant,

v\.

TOGO D. WEST, JR.,

Acting Secretary of Veterans Affairs,

Respondent-Appellee.

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

DECIDED: March 11, 1998

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

Before CLEVENGER, [Circuit Judge]{.underline}, SMITH, [Senior Circuit
Judge]{.underline}, and BRYSON, [Circuit Judge]{.underline}. BRYSON,
[Circuit Judge]{.underline}.

Richard E. Fleshman appeals from the decision of the Court of Veterans
Appeals affirming the denial of Mr. Fleshman's request that his claim
for disability benefits be assigned an earlier effective date. We agree
with the Court of Veterans Appeals that Mr. Fleshman's first application
for benefits was not "in the form prescribed by the Secretary," 38
U.S.C. § 5101(a), and that it therefore did not have the effect of
establishing an earlier entitlement date for his receipt of benefits.

I

On May 24, 1986, while on active duty with the United States Army, Mr.
Fleshman fell from a repelling tower. As a result of the fall, Mr.
Fleshman sustained injuries to his back and right leg, including a
compression fracture in the lumbar region of his spine. Following
treatment, Mr. Fleshman returned to duty and completed his enlistment.
After his honorable discharge on October 8, 1987, Mr. Fleshman sought
compensation benefits for his back injury by filing a claim form with
the Department of Veterans Affairs regional office in Cleveland, Ohio.
Mr. Fleshman, however, did not fill out the second page of the two-page
form. He therefore failed to complete the portion of the form calling
for (1) his signature, certifying that the statements in the form were
accurate and complete, and consenting to have any treating physicians
furnish information to the Department of Veterans Affairs; (2) his
mailing address; and (3) the date of execution of the form. Upon
receiving the incomplete application, the regional office placed check
marks next to the boxes where the missing information should have been
included. The office then returned the form to Mr. Fleshman, along with
a cover letter requesting him to complete the checked items and to
return the completed form as soon as possible. The cover letter stated
that if the form was not returned within a year of the date of the
letter, "benefits, if entitlement is established, may not be paid prior
to the date of its receipt." Mr. Fleshman never returned the form.

On January 30, 1992, Mr. Fleshman submitted a new application seeking
compensation benefits for his back injury. Unlike the 1987 application,
the 1992 application was signed, dated, and bore a return address.
Following a physical examination, the regional office granted Mr.
Fleshman's claim effective as of January 30, 1992, the day on which it
received his application. Mr. Fleshman appealed the regional office's
decision to the Board of Veterans' Appeals, claiming, [inter
alia]{.underline}, that his 1987 application entitled him to an
effective date of October 9, 1987, the day after his discharge from
service. [See]{.underline} 38 U.S.C. § 5110(b)(1) ("The effective date
of an award of disability compensation to a veteran shall be the day
following the date of the veteran's discharge or release if application
therefor is received within one year from such date of discharge or
release.").

The Board of Veterans' Appeals denied Mr. Fleshman's claim for an
earlier effective date. The Board made the following factual findings:
"The veteran filed an incomplete claims form for disability benefits in
October 1987. Upon receipt of the claim, the RO \[regional office\]
returned the claims form to the veteran requesting that additional
information be provided prior to further processing of his claim. The
form was never returned to the RO, and the veteran's claim was deemed
unprocessable. On January 30, 1992, the RO received a completed
application . . . ." Citing 38 C.F.R. § 3.158(a), the Board held that
"\[t\]he veteran\'s failure to return a completed claim form despite the
RO's request constituted abandonment of that claim." The Board therefore
concluded that Mr. Fleshman was entitled to benefits only as of January
30, 1992, the date on which the regional office received his completed
claim form. [See]{.underline} 38 U.S.C. § 5110(a) ("Unless specifically
provided otherwise in this chapter, the effective date of an award . . .
of compensation . . . shall not be earlier than the date of receipt of
application therefor.").

Mr. Fleshman appealed the decision of the Board of Veterans' Appeals to
the Court of Veterans Appeals. The court affirmed, but it did not base
its decision on the "abandonment" ground on which the Board had relied.
Instead, the court relied on 38 U.S.C. § 5101(a), which provides that
"\[a\] specific claim in the form prescribed by the Secretary \[of
Veterans Affairs\] must be filed in order for benefits to be paid or
furnished to any individual under the laws administered by the
Secretary." Characterizing Mr. Fleshman's unexecuted 1987 application as
an informal claim, [see]{.underline} 38 C.F.R. § 3.155(a), the court
held that "\[b\]ecause \[Mr. Fleshman\] failed to comply with the
Secretary's requirements within one year from the date of the
Secretary's notification, the informal claim never became a claim in the
form prescribed by the Secretary." Accordingly, the court concluded that
Mr. Fleshman did not submit a claim satisfying the requirements of
section 5101(a) until he submitted his 1992 application, and that he was
therefore not entitled to an effective date earlier than January 30,
1992.

II

A

In order to receive benefits from the Department of Veterans Affairs, an
applicant must file a claim "in the form prescribed by the Secretary."
38 U.S.C. § 5101(a); [see also]{.underline} 38 C.F.R. § 3.151(a). Mr.
Fleshman contends the statute and regulation merely require a person
claiming veterans' benefits to file a claim on an application form
provided by the Secretary. We disagree. That result would be compelled
only if the provision used language such as "on the form" or "using the
form." [Compare]{.underline} 38 U.S.C. § 5101(a) [and]{.underline} 38
C.F.R. § 3.151(a) [with]{.underline} 38 C.F.R. § 3.160(b) (defining an
original claim as "\[a\]n initial formal application [on a
form]{.underline} prescribed by the Secretary") (emphasis added)
[and]{.underline} 38 C.F.R. § 3.153 (stating that "\[a\]n application
[on a form]{.underline} jointly prescribed by the Secretary and the
Secretary of Health, Education, and Welfare" will be considered to be a
claim for death benefits) (emphasis added).

We agree with the government\'s contention that section 5101(a) requires
applicants to submit a claim in a particular format, containing
specified information, and signed by the claimant, as called for by the
blocks on the application form. Our holding does not mean, as Mr.
Fleshman suggests, that a formal application submitted on the
appropriate form will never be deemed sufficient unless it is letter
perfect. However, where the applicant fails to provide critical elements
of the information requested on the form and the Department of Veterans
Affairs returns the form to the applicant requesting that he provide the
missing items, the applicant will not have satisfied the "in the form
prescribed by the Secretary" requirement of section 5101(a) until he
submits the requested information.

In arguing to the contrary, Mr. Fleshman relies on the Court of Veterans
Appeals' decision in [Edenfield]{.underline} v. [Brown]{.underline}, 8
Vet. App. 384, 389 (1995), which states that section 5101 "require\[s\]
a person claiming VA benefits to file a claim on an application form
provided by the Secretary." That statement indicates that using the
prescribed application form is a necessary condition for compliance with
section 5101(a), but it does not stand for the proposition that filling
out the prescribed application form is the [only]{.underline}
requirement section 5101(a) imposes on applicants.

Mr. Fleshman notes that 38 U.S.C. § 5101(c) directs the Secretary to
deny an application for benefits if the Secretary requests the applicant
to furnish his social security number and the applicant fails to do so.
Because there is no analogous provision with respect to the information
Mr. Fleshman failed to provide, Mr. Fleshman argues that it is improper
for the agency to deny an application on the ground that it is missing
that information. That argument is unpersuasive, because it suggests
that an application containing nothing but the claimant's social
security number would be adequate to satisfy section 5101(a), as long as
the application was submitted on the correct form. Such an "application"
could not reasonably be considered to be "in the form prescribed by the
Secretary," as section 5101(a) requires.

Finally, Mr. Fleshman contends that even if section 5101(a) requires
more than the filing of a claim on an application form provided by the
Secretary, the Court of Veterans Appeals erred in ruling that his 1987
application was not in the proper form simply because it was missing his
signature, his address, and the date on which he executed the
application. Mr. Fleshman argues that his application contained all the
"evidence" material to his claim and that it was therefore not
"incomplete" within the meaning of 38 U.S.C. § 5103(a), which states
that an application is "incomplete" if it lacks the "evidence necessary
to complete the application." Mr. Fleshman concludes that because his
application was not "incomplete," it must be deemed to be in the
prescribed form within the meaning of section 5101(a).

We reject that reasoning. An application may contain all the necessary
"evidence" bearing on the veteran's claimed disability, but still be
missing critical information, so as to prevent the application from
being in the form prescribed by the Secretary. In order to determine
whether a particular item called for by the form is critical, it is
necessary to assess the role of the missing item in the application
process. The applicant's signature is a critical element of the form
because it is the manner by which the applicant (1) certifies that the
statements made in the application are true and complete, (2) consents
to allow any treating physician or hospital to furnish information about
the applicant to the Department of Veterans Affairs, and (3) waives any
privilege that would render such information confidential. By failing to
sign the certification and waiver portions of the form, Mr. Fleshman
omitted an element of the application that the Secretary reasonably
regarded as necessary to enable the agency to process the claim. Thus,
we agree with the CVA that the omissions in Mr. Fleshman\'s 1987
application prevented that application from being "in the form
prescribed by the Secretary," as required by 38 U.S.C. § 5101(a).

Because Mr. Fleshman's original claim form lacked a critical component,
the Court of Veterans Appeals was correct in characterizing his
application as an informal claim, [see]{.underline} 38 C.F.R. §
3.155(a), and in concluding that because Mr. Fleshman failed to return
the completed form within one year, his informal claim never became a
valid claim in the form prescribed by the Secretary. [See]{.underline}
[id]{.underline}; 38 U.S.C. § 5103(a). Consequently, we uphold the
court\'s determination that Mr. Fleshman is not entitled to an effective
date earlier than January 30, 1992, the date on which he submitted his
formal claim.

B

Aside from the merits of the section 5101(a) argument, Mr. Fleshman
contends that the Court of Veterans Appeals' decision must be reversed
because it violates the [Chenery]{.underline} doctrine, which generally
bars a court from upholding an agency decision on a ground other than
the one relied on by the agency. [See]{.underline} [Securities & Exch.
Comm'n]{.underline} v. [Chenery Corp.]{.underline}, 318 U.S. 80, 87
(1943) ("The grounds upon which an administrative order must be judged
are those upon which the record discloses that its action was based.");
[Securities & Exch. Comm'n v. Chenery Corp.]{.underline}, 332 U.S. 194,
196 (1947) ("\[A\] reviewing court, in dealing with a determination or
judgment which an administrative agency alone is authorized to make,
must judge the propriety of such action solely by the grounds invoked by
the agency. If those grounds are inadequate or improper, the court is
powerless to affirm the administrative action by substituting what it
considers to be a more adequate or proper basis."); [NEC Home Elecs.,
Ltd.]{.underline} v. [United States]{.underline}, 54 F.3d 736, 743 (Fed.
Cir. 1995) ("We are powerless to affirm an administrative action on a
ground not relied upon by the agency."). Mr. Fleshman argues that both
the Court of Veterans Appeals and this court are restricted to reviewing
the propriety of the decision of the Board of Veterans' Appeals based
solely on the "abandonment" ground upon which the Board relied, and that
neither court may affirm the Board's decision on the ground that Mr.
Fleshman failed to satisfy section 5101(a).

As this court and others have noted, the [Chenery]{.underline} doctrine
is not applied inflexibly. [See]{.underline}, [e.g.]{.underline}, [Koyo
Seiko Co.]{.underline} v. [United States]{.underline}, 95 F.3d 1094,
1099-1102 (Fed. Cir. 1996); [Arkansas AFL-CIO]{.underline} v.
[FCC]{.underline}, 11 F.3d 1430, 1439-40 (8th Cir. 1993);
[NLRB]{.underline} v. [American Geri-Care, Inc.]{.underline}, 697 F.2d
56, 64 (2d Cir. 1982); [Chae-Sik Lee]{.underline} v.
[Kennedy]{.underline}, 294 F.2d 231, 233-34 (D.C. Cir. 1961). In
particular, the doctrine does not prohibit a reviewing court from
affirming an agency decision on a ground different from the one used by
the agency if the new ground is not one that calls for "a determination
or judgment which an administrative agency alone is authorized to make."
[Koyo Seiko]{.underline}, 95 F.3d at 1101. In addition, the doctrine
does not require a remand to the agency if it is clear that "the agency
would have reached the same ultimate result" had it considered the new
ground. [Ward]{.underline} v. [Merit Sys. Protection Bd.]{.underline},
981 F.2d 521, 528 (Fed. Cir. 1992).

In this case, the Board's conclusion that Mr. Fleshman abandoned his
claim included the explicit findings that his original claim form was
"incomplete" and that he "did not file a completed claim" until his
second application in 1992. The Board's finding that Mr. Fleshman did
not file a completed claim form in 1987 sufficient to establish his
right to benefits provides the complete factual predicate for the legal
conclusion that he failed to file "a specific claim in the form
prescribed by the Secretary." 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a).

While the Court of Veterans Appeals analyzed the defect in Mr.
Fleshman's original claim under a different legal rubric, the Board's
underlying findings demonstrate that the agency had already exercised
its discretion in determining what information is required for an
application to be in the proper form. In [Chenery]{.underline}, by
contrast, the agency had "formulated no judgment upon the requirements
of the \[relevant statutory provision\]." [Chenery Corp.]{.underline},
318 U.S. at 92. For that reason, it seems clear to us that the agency
would have reached the same conclusion if it had addressed the legal
issue on which the Court of Veterans Appeals rested its judgment. We
therefore disagree with Mr. Fleshman that the case must be remanded to
allow the Board of Veterans' Appeals to rule on the section 5101(a)
issue in the first instance.

III

Mr. Fleshman raises two other challenges to the decision of the Court of
Veterans Appeals, neither of which we find meritorious. First, he
contends that the cover letter from the regional office, which stated
that "benefits, if entitlement is established, may not be paid prior to
the date of . . . receipt \[of the missing information\]" denied him due
process, because it misleadingly suggested that he could receive
benefits even if he did not respond to the agency's request. We
disagree. The letter clearly identified the missing items that Mr.
Fleshman was required to submit, and it accurately advised him that if
he did not respond within the one year deadline he was unlikely to
receive any benefits until he submitted a completed application. That
notice was adequate to satisfy the agency's obligations under the Due
Process Clause. [See]{.underline} [Morris]{.underline} v.
[Derwinski]{.underline}, 1 Vet. App. 260, 265 (1991).

Second, Mr. Fleshman argues that the Court of Veterans Appeals' decision
must be reversed because the Department of Veterans Affairs violated the
Paperwork Reduction Act, 44 U.S.C. § 3512(a). In particular, he argues
that the cover letter from the regional office constituted a "collection
of information" within the meaning of 44 U.S.C. § 3502(3). Because the
letter did not "display a valid control number assigned by the Director
\[of the Office of Management and Budget\]," he argues that it was
improper for the Department of Veterans Affairs to subject him "to any
penalty for failing to comply" with its request. 44 U.S.C. § 3512(a).
The short answer to that argument is that the regional office's letter
did not constitute a "collection of information," as it did not
"call\[\] for . . . answers to . . . questions." 44 U.S.C. § 3502(3)(A).
It was the application enclosed with the letter that contained the
"questions posed." [Id]{.underline}. Because the application displayed a
valid control number from the Office of Management and Budget, the
request for information was in full compliance with the Paperwork
Reduction Act.

[AFFIRMED.]{.underline}