Appealed from: United States Court of Appeals for Veterans Claims Judge Bruce E. Kasold (2008-7150) Judge Mary J. Schoelen (2008-7115) Appeal from the United States Court of Appeals for Veterans Claims in 05-0355, Judge Bruce E. Kasold. Appeal from the United States Court of Appeals for Veterans Claims in 03-1235, Judge Mary J. Schoelen.
The opinion of the court was delivered by: Prost, Circuit Judge.
Before LINN, PROST, and MOORE, Circuit Judges.
The Secretary of Veterans Affairs appeals two related judgments from the Court of Appeals for Veterans Claims ("Veterans Court"). Because the parties make substantially identical arguments, we address the appeals together. Veterans Angel Vazquez-Flores and Michael R. Schultz each applied for an increased rating for their service-connected disabilities. Their regional offices ("ROs") denied the claims, and the Board of Veterans' Appeals ("Board") affirmed in both cases. On appeal to the Veterans Court, the veterans argued that the Department of Veterans Affairs ("VA") provided inadequate notice for an increased rating claim. The Veterans Court agreed, remanding the claims back to the Board. See Vazquez-Flores v. Peake, 22 Vet. App. 37, 50 (2008); Schultz v. Peake, No. 03-1235, 2008 WL 2129773, at *5 (Vet. App. Mar. 7, 2008). The Secretary immediately appealed to us, arguing that under Williams v. Principi, 275 F.3d 1361 (Fed. Cir. 2002), we need not await a final judgment and that the Veterans Court erred in requiring specific notice under the Veterans Claims Assistance Act ("VCAA") of 2000, Pub. L. No. 106-475, § 3(a), 114 Stat. 2096, 2096--97. We agree, and vacate and remand in both cases.
Veteran Angel Vazquez-Flores served on active duty in the U.S. Army from July 1963 to July 1965 and again from January 1966 to January 1969. After his release from service, he received service connection for nephrolithiasis. Since April 1976, VazquezFlores's condition has been rated at 30%-the maximum disability rating possible under diagnostic code ("DC") 7508, the diagnostic code for nephrolithiasis. See 38 C.F.R. § 4.115b.
Although 30% is the maximum disability rating under DC 7508, that diagnostic code cross-references other diagnostic codes that permit even higher disability ratings. Specifically, in most circumstances DC 7508 requires nephrolithiasis to be rated as "hydronephrosis" under DC 7509. See 38 C.F.R. § 4.115b. Both of these ratings provide a maximum 30% disability rating. Under DC 7509, however, severe hydronephrosis can be rated as "renal dysfunction" pursuant to 38 C.F.R. § 4.115a. According to that section of the Code of Federal Regulations, renal dysfunction resulting from hypertension that is at least 40% disabling under DC 7101 increases a disability rating to 60%.
In 1994, Vazquez-Flores requested an increased rating. Following the request, the case shuttled back and forth between the Board and the RO a number of times. The RO issued a number of supplemental statements of the case ("SSOCs"), which summarized any newly submitted evidence and provided the reasons and bases for the RO's decision to deny an increased rating; some of the SSOCs referenced the diagnostic codes for nephrolithiasis, hydronephrosis, and renal dysfunction (but not hypertension).
After the RO again denied an increased rating for Vazquez-Flores's nephrolithiasis, he requested Board review. The Board denied an increased disability rating after evaluating the medical evidence in light of the diagnostic codes for nephrolithiasis, hydronephrosis, renal dysfunction, and hypertension. The Board also found that the VA had satisfied its duty to notify and to assist. See In re VazquezFlores, No. 96-37 108A, 2005 WL 3893240 (Bd. Vet. App. Feb. 1, 2005). VazquezFlores appealed to the Veterans Court, claiming that the notice did not explain the criteria for a nephrolithiasis disability rating greater than 30% and failed to inform him that the condition might be rated under a different diagnostic code. Vazquez-Flores, 22 Vet. App. at 41. He also argued that the notice was unclear, since he did not know how to show his condition had "gotten worse." Id. Finally, he claimed he was entitled to notice as to how to request an extraschedular rating.*fn1 Id.
The Veterans Court held, in relevant part, that under 38 U.S.C. § 5103(a)*fn2 the VA's notice must satisfy the following requirements: (1) the VA must notify the veteran that in order to substantiate his claim, he must provide (or ask the VA to obtain) medical or lay evidence demonstrating that his disability has worsened or increased in severity and the effect the worsening has had on his employment and daily life; (2) if the veteran's current diagnostic code "contains criteria necessary for entitlement to a higher disability rating that would not be satisfied" by providing the evidence described above- the example provided by the Veterans Court was where a "specific measurement or test result" would be required-then the VA must give "at least general notice" of that requirement; (3) the VA must tell the veteran that if he is assigned a higher rating, that rating will be determined by applying relevant diagnostic codes, which generally provide for disability ratings between 0--100%, "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life"; and (4) the notice must also provide examples of the types of medical and lay evidence-such as job application rejections-that the veteran may submit (or ask the VA to obtain) "that are relevant to establishing his entitlement to increased compensation." Vazquez-Flores, 22 Vet. App. at 43--44 (citations omitted and emphasis added).
After comparing these requirements to the notice Vazquez-Flores received, the Veterans Court concluded that the VA did not satisfy its duty to notify. The Veterans Court examined two writings relied upon by the Board: an April 2001 notice letter ("the 2001 letter"), and a December 2003 letter from the VA's Appeal Management Center ("the AMC letter"). The Veterans Court found that the 2001 letter did not tell VazquezFlores how to substantiate his claim for an increased disability rating-instead, the letter focused on how to substantiate a claim for service connection. Id. at 48. According to the Veterans Court, the AMC letter was likewise deficient because it merely asked Vazquez-Flores to provide evidence that his nephrolithiasis had "gotten worse." Specifically, the court concluded that the AMC letter failed to explain that the evidence must demonstrate the effect of that worsening on his occupational and daily life or to provide, at least in general terms, the criteria beyond the effect of the worsening of the disability upon the occupational and daily life that is necessary to be awarded the higher disability rating for his condition. Moreover, the totality of information provided in these documents was also confusing in that it provided differing versions of what was required to show entitlement to a higher disability rating.
Id. (citations omitted). The Veterans Court concluded that the Board's finding that the VA provided adequate notice was clearly erroneous in light of "the lack of adequate information in the notice and the otherwise confusing nature of the notice." Id. The Veterans Court then remanded the case based on its conclusion that any notice error was presumptively prejudicial under our then-in-effect decision in Sanders v. Nicholson, 487 F.3d 881, 891 (Fed. Cir. 2007), rev'd sub nom. Shinseki v. Sanders, 129 S.Ct. 1696 (2009).
The government filed a motion to stay the precedential effect of the decision, but the Veterans Court denied the request. Vazquez-Flores v. Peake, 22 Vet. App. 91 (2008) ("Order Denying Stay"). The government then filed a motion for either panel reconsideration or en banc review, but that request was also denied. Vazquez-Flores v. Peake, 22 Vet. App. 120 (2008) ("Order Denying Reconsideration"). The government now appeals to this court.
Veteran Michael Schultz served in the military during the 1980s and 1990s.*fn3 He currently has a 20% disability rating for a right shoulder disability (rated by analogy to DC 5202, see 38 C.F.R. § 4.71a) and a 10% disability rating for right and left knee disabilities (rated under DC 5257). See Schultz, 2008 WL 2129773, at *1. In November 1997, he requested higher disability ratings for his injuries. The RO denied the claims in ...