The Board decision phrases its finding as a denial of entitlement to service connection for the cause of the death 1

of Ms. George-Harvey's husband, veteran Aron Harvey; service connection is one element of the claim for benefits.

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-1072

THERESE M. GEORGE-HARVEY, APPELLANT,

V.

R. JAMES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans’ Appeals

(Decided June 29, 2007 )

Mark R. Lippman, of La Jolla, California, for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; Brian

R. Rippel, Deputy Assistant General Counsel; and John D. McNamee, Senior Appellate Attorney;

all of Washington, D.C., for the appellee.

Before GREENE, Chief Judge, and HAGEL and DAVIS, Judges.

HAGEL, Judge: Therese M. George-Harvey appeals through counsel a May 13, 2004, Board

of Veterans' Appeals (Board) decision in which the Board denied her claim for dependency and

indemnity compensation. Record (R.) at 3, 15. The Court has jurisdiction pursuant to 38 U.S.C. 1

§§ 7252(a) and 7266(a) to review the May 2004 Board decision. Because Ms. George-Harvey was

not prejudiced by any failure of VA in its duty to provide notice under 38 U.S.C. § 5103(a), the

Court will affirm the May 2004 Board decision.

I. FACTS

Veteran Aron Harvey served honorably in the U.S. Marine Corps from September 1975 to

December 1996, including service in Somalia during Operation Restore Hope. In March1999, a VA
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regional office denied Mr. Harvey disability benefits for post-traumatic stress disorder and

dysthymic disorder. Mr. Harvey had several service-connected disabilities, including low back pain

with degenerative changes, impingement syndrome of the right and left shoulders, cervical strain,

degenerative changes of the right and left knees, and headaches post head trauma. These conditions

were assigned a combined disability rating of 50%, effective as of April 1997. R. at 66. Mr. Harvey

had chronic low back pain following a laminectomy, for which he was prescribed morphine and

other pain medications, but reported being in constant pain and was diagnosed with poor pain

control. He was also in counseling for post-traumatic stress disorder and depression. On

November 5, 1999, he was awarded total disability based on individual unemployability. On

February 5, 2002, Mr. Harvey died in a single-vehicle accident when the truck he was driving left

the road and struck a tree. The autopsy reported that his blood alcohol concentration was 0.22%.

Mr. Harvey's wife, Ms. George-Harvey, applied for dependency and indemnity compensation

in March 2002, stating that her husband's service-connected disabilities created severe pain and

depression and that the prescribed drugs and alcohol he used to dull the pain contributed

substantially and materially to the cause of his death. In April 2002, the VA regional office sent

Ms. George-Harvey a letter that attempted to explain VA's duty to assist her in her claim. The letter

stated:

We will try to help you get such things as medical records, employment records, or

records from other Federal agencies. You must give us enough information about

these records so that we can request them from the person or agency who has them.

It's still your responsibility to make sure these records are received by us.

We will also assist you by providing a medical examination or getting a medical

opinion if we decide it's necessary to make a decision on your claim.

. . . .

[Regarding evidence showing a nexus between the cause of death and Mr. Harvey's

disability]. This is usually shown by the death certificate, or in other medical records

or medical opinions. We will request this medical evidence for you if you tell us

about it. If appropriate, we may also try to get this evidence for you by requesting

a medical opinion from a VA doctor, or you can give us a medical opinion from your

own doctor. 

R. at 291-92.
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The regional office denied Ms. George-Harvey's claim in July 2002, without her having

submitted any additional evidence. Ms. George-Harvey filed a Notice of Disagreement in

September 2002, stating her belief that her husband's death was caused by his "secondary addiction

to pain medication, including alcohol used to subdue his daily chronic physical pain and major

depression." R. at 301. An April 9, 2003, letter from Dr. Robert Brunst stated that he had treated

Mr. Harvey for several years with antidepressants to manage a major depression that stemmed from

his chronic back pain due to service injuries. R. at 304. Ms. George-Harvey also submitted a letter

from Dr. Karen Schoenfeld-Smith, a licensed psychologist, who treated Mr. Harvey in group and

individual therapy at the Vista Vet Center, Vista, California, from April 1997 until March 2001,

addressing his service in Somalia and chronic pain. R. at 306.

On May 30, 2003, the regional office issued a Statement of the Case finding no service

connection for the cause of Mr. Harvey's death, following consideration of VA treatment records

and examination reports, counseling records from the Vista Vet Center from May 1997 to May 2001,

Ms. George-Harvey's Notice of Disagreement, and the statement from Dr. Brunst. R. at 310. The

regional office found that "[T]here is no evidence in any of the veteran's records that he had a

problem with drug or alcohol addiction or misuse as a result of depression or his orthopedic

problems." R. at 324. According to the Statement of the Case, the regional office performed a de

novo review. "This means that we have done a new and complete review of the evidence in your

claim file without deference to the prior VA Rating Decision." R. at 323. 

Ms. George-Harvey appealed to the Board in July 2003, submitting statements from

neighbors and others as lay evidence to support her contention that Mr. Harvey self-medicated with

alcohol to ease his chronic service-connected pain; she argued that this self-medication contributed

to the accident that caused his death. In October 2003, the regional office issued a Supplemental

Statement of the Case that considered the statements Ms. George-Harvey had submitted, but found

that service connection was not established for the cause of Mr. Harvey's death. "Although the

above statements note the veteran had a history of alcohol usage, and in [the neighbor's] statement

she noted the veteran drank to self[-]medicate due to pain, this is based on lay testimony only with

no supporting medical evidence demonstrating the veteran was in fact using alcohol to self[-

]medicate." R. at 339-340.
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On October 2003, Ms. George-Harvey perfected her appeal to the Board, stating, "I have no

further information." R. at 342. The Board denied her claim in the May 2004 decision now before

the Court.

In its decision, the Board found that there was no competent medical evidence to support Ms.

George-Harvey's assertion that "the intoxication that led to [Mr. Harvey's] death was the result of

[his] use of alcohol to relieve pain resulting from service-connected disability." R. at 2. In addition,

the Board found that Ms. George-Harvey had been given notice as required by the Veterans Claims

Assistance Act, P.L. No. 106-475, 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a)), through

the July 2002 regional office decision, the May 2003 Statement of the Case, the October 2003

Supplemental Statement of the Case, and "associated correspondence." R. at 4. The Board also

stated: "In addition, [Ms. George-Harvey] was advised of the specific [notice] requirements with

respect to the issue adjudicated below by letter dated in April 2002." Id.

On appeal, Ms. George-Harvey argues that VA failed to provide her with the requisite notice

in three ways. First, she argues that the only predecisional notice, the April 2002 letter, was

misleading as to the time in which she could submit additional evidence. Appellant's Brief (Br.) at

4. Second, she argues that the April 2002 letter failed to provide notice of whether she or VA

would be ultimately responsible for obtaining the evidence necessary to substantiate her claim. Id.

at 7. Finally, she argues that because the notice in the April 2002 letter was defective, VA failed in

its obligation to provide her with notice before the initial determination by the agency of original

jurisdiction. Id. at 10.

The Secretary argues that the April 2002 letter was not misleading and adequately notified

Ms. George-Harvey of each party's responsibility for obtaining evidence. Secretary's Br. at 5, 7-8.

The Secretary also argues, in the alternative, that any noncompliance with the notice requirements

was nonprejudicial because Ms. George-Harvey demonstrated actual knowledge of each party's

responsibility by submitting evidence and because she failed to plead with specificity how she was

prejudiced by inadequate notice. Id. at 8-10.
5

II. ANALYSIS

A. Laws Regarding Claim

Section 5103(a) of title 38, U.S. Code, requires that VA inform the claimant of (1) the

information and evidence not of record that is necessary to substantiate the claim, (2) which portion

of that information and evidence, if any, that the claimant is expected to provide, and (3) which

portion of that information and evidence, if any, that VA will seek to obtain. 38 U.S.C. § 5103(a).

In addition, 38 C.F.R. § 3.159(b)(1) (2006) imposes a fourth requirement that VA "request that the

claimant provide any evidence in the claimant's possession that pertains to the claim." See Pelegrini

v. Principi, 18 Vet.App. 112, 120 (2004). Failure to comply with any of these requirements may

constitute remandable error. See id. at 121-22; Quartuccio v. Principi, 16 Vet.App. 183, 188 (2000).

Whether a claimant has received adequate notice under the Veterans Claims Assistance Act is a

"substantially factual determination" by the Board. Mayfield v. Nicholson, 444 F.3d 1328, 1335

(Fed. Cir. 2006) (Mayfield II). This Court has interpreted that language to mean that such a

determination is reviewed under a "clearly erroneous" standard of review. See Prickett v. Nicholson,

20 Vet.App. 370, 378 (2006). "A factual finding 'is "clearly erroneous" when although there is

evidence to support it, the reviewing court on the entire evidence is left with the definite and firm

conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992)

(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)).

"[VA's] 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." Mayfield II, 444 F.3d at 1333. If the Court finds such error,

it must "take due account of the rule of prejudicial error." 38 U.S.C. § 7261(b)(2)(Supp. 2007); see

Conway v. Principi, 353 F. 3d 1369, 1374-75 (Fed. Cir. 2004). The U.S. Court of Appeals for the

Federal Circuit (Federal Circuit) recently held that a notice error in any of the four required elements

"should be presumed prejudicial, requiring reversal unless [] VA can show that the error did not

affect the essential fairness of the adjudication." Sanders v. Nicholson, ___ F.3d ___, ____, No. 06-

7001, slip op. at 13-14 , 2007 WL 1427720 (Fed. Cir. May 16, 2007). 
6

B. Misleading Notice

As to Ms. George-Harvey's first allegation of notice error, that the April 2002 letter was

misleading as to the time limit for submitting evidence, the Court concurs. The first sentence in the

disputed paragraph states categorically, "If the evidence is not received within 30 days, your claim

will be considered on the basis of the evidence we already have." R. at 292 (boldface in original).

The paragraph then discusses submission of evidence within one year from the date of the letter, but

only in the context of the earliest possible effective date. This information is confusing at best and

misleading at worst. The Federal Circuit has stated that giving notice to claimants that they must

submit evidence within 30 days is a misleading characterization of the law that may lead

unsuspecting claimants to believe they must provide requested information or evidence within 30

days even though the statute unequivocally provides a claimant one year to submit evidence; such

notice "ensures confusion and inefficiency, and is potentially prejudicial to claimant's statutory oneyear period for providing information." Paralyzed Veterans of Am. v. Sec 'y. of Veterans Affairs, 345

F.3d 1334, 1346 (Fed. Cir. 2003) (PVA). 

 Having found error, the Court must "take due account of the rule of prejudicial error."

38 U.S.C. § 7261(b)(2); see Conway, 353 F.3d at 1374-75. Any notice error will be presumed

prejudicial unless VA can show that the error did not affect the essential fairness of the adjudication

and persuade the Court that the purpose of the notice was not frustrated, for example by

demonstrating "(1) that any defect was cured by actual knowledge on the part of the claimant,

(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." Sanders, ___ F.3d at ___, slip

op. at 7.

Here, the Secretary argues that Ms. George-Harvey had actual knowledge that she could

submit evidence more than 30 days after the April 2002 letter, as demonstrated by the fact that she

did submit new evidence after the 30-day period. In April 2003, she submitted letters from Dr.

Brunst and Dr. Schoenfeld-Smith of the Vista Vet Center. The regional office considered Dr.

Brunst's letter and the treatment records from the Vista Vet Center before issuing the May 2003

Statement of the Case. Ms. George-Harvey submitted additional evidence in July 2003, lay

statements alleging that Mr. Harvey's use of alcohol was to self-medicate for his chronic pain. The
7

regional office considered this evidence before issuing its October 2003 Supplemental Statement

of the Case.

The Secretary has demonstrated that the confusing notice given in the April 2002 letter as

to the time limit for submitting evidence did not affect the essential fairness of the adjudication. Ms.

George-Harvey arguably had actual knowledge that she could submit evidence more than 30 days

after the date of the letter as demonstrated by the fact that she did so. Moreover, the agency of

original jurisdiction considered such evidence. The Federal Circuit's concern in Paralyzed Veterans

of America was that misleading notice about the one-year period in which to submit evidence would

lead to claims being prematurely denied because claimants, believing they only had 30 days, would

fail to submit additional information or evidence to substantiate their claims. PVA, 354 F.3d at

1346. Here, whether or not Ms. George-Harvey had actual knowledge that she could submit

additional evidence after the 30-day period, she did in fact submit additional evidence and it was

considered by the regional office. Thus, the purpose of the notice was not frustrated and the

misleading notice error did not affect the essential fairness of the adjudication. See Sanders, ___

F.3d at ___, slip op. at 14. Thus, the misleading notice was not prejudicial to Ms. George-Harvey.

C. Second and Third Element Notice

Ms. George-Harvey's second allegation of error is that the April 2002 letter did not explain

which evidence, if any, VA was responsible for obtaining and which evidence, if any, she was

responsible for obtaining; that is, it failed to comply with the second and third notice elements.

Whether notice was adequate is a finding of fact by the Board that this Court reviews under the

"clearly erroneous" standard. See Mayfield II, 444 F.3d at 1335; Prickett, 20 Vet.App. at 378. The

April 2002 letter, while not a model of clarity, nevertheless did provide Ms. George-Harvey notice

that, although VA would try to help her obtain such things as medical records, employment records,

or records from other Federal agencies, she needed to identify the information to be sought and "It's

still your responsibility to make sure these records are received by us." R. at 290. In addition, the

letter explained the three elements necessary to establish entitlement for service-connected death

benefits and discussed who should provide the evidence to show each element. Regarding the cause

of death, the letter states: "This is usually shown by the veteran's death certificate or other evidence

showing cause of death. You should give us this evidence." Id. Regarding a relationship between

the cause of death and the in-service injury, disease, or event, the April 2002 letter said, "We will
8

request this medical evidence for you if you tell us about it. If appropriate, we may also try to get

this evidence for you by requesting a medical opinion from a VA doctor, or you can give us a

medical opinion from your own doctor." R. at 291. The Court finds that the Board's determination

that this letter provided Ms. George-Harvey adequate notice was not clearly erroneous.

D. Timing of Notice Error

Ms. George-Harvey's argument that VA failed to provide her with notice before the initial

determination by the agency of original jurisdiction relies on her contentions that the notice provided

in the April 2002 letter, the only predecisional document relied on by the Board, was inadequate.

The Board relied on a variety of postdecisional documents to find that VA had complied with the

notice provisions of 38 U.S.C. § 5103(a); such documents do not satisfy the duty to notify. See

Mayfield II, 444 F.3d at 1333. However, the Board also stated, "In addition, [Ms. George-Harvey]

was advised of the specific [notice] requirements with respect to the issue adjudicated below by

letter dated in April 2002." R. at 4. Thus, the Board determined that the April 2002 notice letter

alone satisfied VA's section 5103(a) duty-to-notify requirements. See Prickett, 20 Vet.App. at 376.

Because the notice error in the April 2002 letter, the confusing language concerning the time

limits for submitting evidence, was not prejudicial to Ms. George-Harvey and the Board was not

clearly erroneous in determining that that letter provided adequate notice, Ms. George-Harvey's

argument that she did not receive adequate predecisional notice fails. 

III. CONCLUSION

Upon consideration of the foregoing, the May 13, 2004, Board decision is AFFIRMED.