OPINION OF THE COURT
SHINSEKI V. SANDERS
556 U. S. ____ (2009)
SUPREME COURT OF THE UNITED STATES
NO. 07-1209
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS,
PETITIONER
v. WOODROW F. SANDERS
ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, PETITIONER
v. PATRICIA D. SIMMONS
on writs of certiorari to the united states court
of appeals for the federal circuit
[April 21, 2009]
Justice Breyer delivered the
opinion of the Court.
In these two civil cases, the
Department of Veterans Affairs (VA) denied veterans’ claims for
disability benefits. In both cases the VA erroneously failed to
provide the veteran with a certain kind of statutorily required
notice. See 38 U. S. C. §5103(a). In both cases the VA argued
that the error was harmless. And in both cases the Court of Appeals
for the Federal Circuit, after setting forth a framework for
determining whether a notice error is harmless, rejected the VA’s
argument.
In our view, the Federal Circuit’s
“harmless-error” framework is too complex and rigid, its
presumptions impose unreasonable evidentiary burdens upon the VA,
and it is too likely too often to require the Court of Appeals for
Veterans Claims (Veterans Court) to treat as harmful errors that in
fact are harmless. We conclude that the framework conflicts with
established law. See §7261(b)(2) (Veterans Court must “take due
account of the rule of prejudicial error”).
I
A
The law entitles veterans who
have served on active duty in the United States military to receive
benefits for disabilities caused or aggravated by their military
service. The Veterans Claims Assistance Act of 2000 requires the VA
to help a veteran develop his or her benefits claim. §5103A. In
doing so, the Secretary of Veterans Affairs (Secretary), upon
“receipt of” an “application” for benefits, must “notify the
claimant . . . 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” the required “notice,” the
Secretary must also “indicate which portion of” the required
“information and evidence … is to be provided by the claimant and
which portion … the Secretary … will attempt to obtain.”
§5103(a).
Repeating these statutory
requirements in its regulations, the VA has said it will provide a
claimant with a letter that tells the claimant (1) what further
information is necessary to substantiate his or her claim; (2) what
portions of that information the VA will obtain for the claimant;
and (3) what portions the claimant must obtain. 38 CFR §3.159(b)
(2008). At the time of the decisions below, the regulations also
required the VA to tell the claimant (4) that he may submit any
other relevant information that he has available. §3.159(b)(1).
(The VA refers to these notice requirements as Type One, Type Two,
Type Three, and Type Four, respectively.)
B
The VA’s regional offices decide
most claims. A claimant may appeal an adverse regional office
decision to the VA’s Board of Veterans’ Appeals, an administrative
board with the power to consider certain types of new evidence. 38
U. S. C. §§7107(b), 7109(a); 38 CFR §20.1304(c). The claimant
may seek review of an adverse Board decision in the Veterans Court,
an Article I court. And the claimant (or the Government) may appeal
an adverse decision of the Veterans Court to the Court of Appeals
for the Federal Circuit—but only in respect to certain legal
matters, namely, “the validity … of any statute or regulation … or
any interpretation thereof … that was relied on” by the Veterans
Court in making its decision. 38 U. S. C. §7292.
A specific statute requires the
Veterans Court to “take due account of the rule of prejudicial
error.” §7261(b)(2). In applying this statutory provision, the
Veterans Court has developed its own special framework for notice
errors. Under this framework, a claimant who argues that the VA
failed to give proper notice must explain precisely how the notice
was defective. Then the reviewing judge will decide what “type” of
notice error the VA committed. The Veterans Court has gone on to
say that a Type One error (
i.e., a failure to explain what
further information is needed) has the “natural effect” of harming
the claimant; but errors of Types Two, Three, or Four
(
i.e., a failure to explain just who, claimant or agency,
must provide the needed material or to tell the veteran that he may
submit any other evidence available) do not have the “natural
effect” of harming the claimant. In these latter instances, the
claimant must show how the error caused harm, for example, by
stating in particular just “what evidence” he would have provided
(or asked the Secretary to provide) had the notice not been
defective, and explaining just “how the lack of that notice and
evidence affected the essential fairness of the adjudication.”
Mayfield v.
Nicholson, 19 Vet. App. 103, 121
(2005).
C
In the first case, Woodrow
Sanders, a veteran of World War II, claimed that a bazooka exploded
near his face in 1944, causing later blindness in his right eye.
His wartime medical records, however, did not indicate any eye
problems. Indeed, his 1945 discharge examination showed
near-perfect vision. But a 1948 eye examination revealed an
inflammation of the right-eye retina and surrounding tissues—a
condition that eventually left him nearly blind in that eye. Soon
after the examination Sanders filed a claim for disability
benefits. But in 1949 the VA denied benefits on the ground that
Sanders had failed to show a connection between his eye condition
and his earlier military service.
Forty-two years later, Sanders
asked the VA to reopen his benefits claim. He argued that the 1944
bazooka explosion had hurt his eye, and added that that he had
begun to experience symptoms—blurred vision, swelling, and loss of
sight—in 1946. He included a report from a VA doctor, Dr. Joseph
Ruda, who said that “[i]t is not inconceivable that” the condition
“could have occurred secondary to trauma, as stated by” Sanders. A
private ophthalmologist, Dr. Gregory Strainer, confirming that
Sanders’ right retina was scarred, added that this “[t]ype of …
injury … can certainly be concussive in character.” App. C to Pet.
for Cert. 26a–27a.
In 1992, the VA reopened Sanders’ claim.
Id., at 29a. After obtaining Sanders’ military medical
records, the VA arranged for a further medical examination, this
time by VA eye specialist Dr. Sheila Anderson. After examining
Sanders’ medical history (including records of the examinations
made at the time of Sanders’ enlistment and discharge), Anderson
agreed with the medical diagnosis but concluded that Sanders’
condition was not service related. Since Sanders’ right-eye “visual
acuity” was “20/20” upon enlistment and “20/25” upon discharge, and
he had “reported decreased vision only 6 months prior” to his 1948
doctor’s “visit,” and since “there are no other signs of ocular
trauma,” Anderson thought that Sanders’ condition “is most likely
infectious in nature, although the etiology at this point is
impossible to determine.” “Based on the documented records,” she
concluded, “the patient did not lose vision while on active duty.”
The VA regional office denied Sanders’ claim.
Ibid.
Sanders sought Board review, and in the
meantime he obtained the opinion of another VA doctor, Dr. Duane
Nii, who said that the “etiology of the patient’s” eye condition
“is . . . difficult to ascertain.” He thought that “it is possible
that” the condition “could be related to” a bazooka explosion,
though the “possibility of” an infection “as the etiology … could
also be entertained.”
Id., at 30a. The Board concluded
that Sanders had failed to show that the eye injury was service
connected. The Board said that it had relied most heavily upon
Anderson’s report because, unlike other reports, it took account of
Sanders’ military medical records documenting his eyesight at the
time of his enlistment and discharge. And the Board consequently
affirmed the regional office’s denial of Sanders’ claim.
Sanders then appealed to the Veterans Court.
There he argued, among other things, that the VA had made a notice
error. Sanders conceded that the VA had sent him a letter telling
him (1) what further information was necessary to substantiate his
claim. But, he said, the VA letter did not tell him (2) which
portions of the information the Secretary would provide or
(3) which
portions he would have to provide. That is to
say, he complained about notice errors Type Two and Type Three.
The Veterans Court held that these notice
errors were harmless. It said that Sanders had not explained how he
would have acted differently, say, by identifying what different
evidence he would have produced or asked the Secretary to obtain
for him, had he received proper notice. Finding no other error, the
Veterans Court affirmed the Board’s decision.
D
The Court of Appeals for the
Federal Circuit reviewed the Veterans Court’s decision and held
that the Veterans Court was wrong to find the notice error
harmless. The Federal Circuit wrote that when the VA provides a
claimant with a notice letter that is deficient in
any
respect (to the point where a “reasonable person” would not have
read it as providing the necessary information), the Veterans Court
“should … presum[e]” that the notice error is “prejudicial,
requiring reversal unless the VA can show that the error did not
affect the essential fairness of the adjudication.”
Sanders v.
Nicholson, 487 F. 3d 881, 889
(2007). To make this latter showing, the court added, the VA must
“demonstrate” (1) that the “defect was cured by actual knowledge on
the” claimant’s “part,” or (2) “that a benefit could not have been
awarded as a matter of law.”
Ibid. Because the VA had not
made such a showing, the Federal Circuit reversed the Veterans
Court’s decision.
E
In the second case before us, the
claimant, Patricia Simmons, served on active military duty from
December 1978 to April 1980. While on duty she worked in a noisy
environment close to aircraft; after three months she began to lose
hearing in her left ear; and by the time she was discharged, her
left-ear hearing had become worse. Soon after her discharge,
Simmons applied for disability benefits. The VA regional office
found her hearing loss was service connected; but it also found the
loss insufficiently severe to warrant compensation. In November
1980, it denied her claim.
In 1998, Simmons asked the VA to
reopen her claim. She provided medical examination records showing
further loss of hearing in her left ear along with (what she
considered related) loss of hearing in her right ear. The VA
arranged for hearing examinations by VA doctors in 1999, 2001, and
2002. The doctors measured her left-ear hearing loss, ranking it as
moderate to severe; they also measured her right-ear hearing loss,
ranking it as mild to moderate. After comparing the results of the
examinations with a VA hearing-loss compensation schedule, the
regional office concluded that Simmons’ left-ear hearing loss,
while service connected, was not severe enough to warrant
compensation. At the same time, the regional office concluded that
her right-ear hearing loss was neither service connected nor
sufficiently severe. Simmons appealed the decision to the Board,
which affirmed the regional office’s determination.
In 2003, Simmons appealed to the Veterans
Court. Among other things, she said that she had not received a
notice about (and she consequently failed to attend) a further
right-ear medical examination that the VA later told her it had
arranged. She added that, in respect to her claim for benefits for
loss of hearing in her left ear, the VA had made a Type One notice
error (
i.e., it had failed to tell her what further
information was needed to substantiate her
claim). Simmons conceded that she had received a
letter from the VA. But the letter told her only what, in general,
a person had to do to show that a hearing injury was service
connected. It did not tell her anything about her specific problem,
namely, what further information she must provide to show a
worsening of hearing in her left ear, to the point where she could
receive benefits.
The Veterans Court agreed with Simmons, and it
found both errors prejudicial. In respect to Simmons’ left-ear
hearing loss (the matter at issue here), it pointed out that it had
earlier said (in
Mayfield, 19 Vet. App., at 120–124) that
a Type One notice error has the “natural effect of producing
prejudice.” The court added that its “revie[w] [of] the record in
its entirety” convinced it that Simmons did not have “actual
knowledge of what evidence was necessary to substantiate her claim”
and, had the VA told Simmons more specifically about what
additional medical information it needed, Simmons might have
“obtained” a further “private” medical “examination substantiating
her claim.” App. G to Pet. for Cert. 81a. The Veterans Court
consequently remanded the case to the Board.
The Government appealed the Veterans Court’s
determination to the Court of Appeals for the Federal Circuit. And
that court affirmed the Veterans Court’s decision on the basis of
its decision in
Sanders. Simmons v.
Nicholson,
487 F. 3d 892 (2007).
F
We granted certiorari in both
Sanders’ and Simmons’ cases in order to determine the lawfulness of
the Federal Circuit’s “harmless-error” holdings.
II
The Federal Circuit’s holdings
flow directly from its use of the “harmless-error” framework that
we have described.
Supra, at 6. Thus we must decide
whether that framework is consistent with a particular statutory
requirement, namely, the requirement that the Veterans Court “take
due account of the rule of prejudicial error,” 38 U. S. C.
§7261(b)(2). See
supra, at 3
. We conclude that
the framework is not consistent with the statutory demand.
A
We believe that the statute, in
stating that the Veterans Court must “take due account of the rule
of prejudicial error,” requires the Veterans Court to apply the
same kind of “harmless-error” rule that courts ordinarily apply in
civil cases. The statutory words “take due account” and
“prejudicial error” make clear that is so. Congress used the same
words in the Administrative Procedure Act (APA). 5 U. S. C.
§706 (“[A] court shall review the whole record … and due account
shall be taken of the rule of prejudicial error”). The Attorney
General’s Manual on the Administrative Procedure Act explained that
the APA’s reference to “prejudicial error” is intended to “su[m] up
in succinct fashion the ‘harmless error’ rule applied by the courts
in the review of lower court decisions as well as of
administrative bodies.” Dept. of Justice, Attorney General’s
Manual on the Administrative Procedure Act 110 (1947) (emphasis
added). And we have previously described §706 as an
“ ‘administrative law … harmless error rule.’ ”
National Assn. of Home Builders v.
Defenders of
Wildlife,
551
U. S. 644, ___ (2007) (slip op., at 12) (quoting
PDK Labs.
Inc. v.
United States Drug Enforcement Admin., 362
F. 3d 786, 799 (CADC 2004)). Legislative history confirms that
Congress intended the Veterans Court “prejudicial error” statute to
“incorporate a reference” to the APA’s approach. S. Rep. No.
100–418, p. 61 (1988). We have no indication of any relevant
distinction between the manner in which reviewing courts treat
civil and administrative cases. Consequently, we assess the
lawfulness of the Federal Circuit’s approach in light of our
general case law governing application of the harmless-error
standard.
B
Three related features of the
Federal Circuit’s framework, taken together, convince us that it
mandates an approach to harmless error that differs significantly
from the approach courts normally take in ordinary civil cases.
First, the framework is complex, rigid, and mandatory. In every
case involving a notice error (of no matter which kind) the
Veterans Court
must find the error harmful unless the VA
“demonstrate[s]” (1) that the claimant’s “actual knowledge” cured
the defect or (2) that the claimant could not have received a
benefit as a matter of law. Suppose the notice error, as in
Sanders’ case, consisted of a failure to describe what additional
information, if any, the VA would provide. It might be obvious from
the record in the particular case that the error made no
difference. But under the Federal Circuit’s rule, the Veterans
Court would have to remand the case for new proceedings
regardless.
We have previously warned against
courts’ determining whether an error is harmless through the use of
mandatory presumptions and rigid rules rather than case-specific
application of judgment, based upon examination of the record. See
Kotteakos v.
United States,
328 U. S. 750, 760
(1946). The federal “harmless-error” statute, now codified at 28 U.
S. C. §2111, tells courts to review cases for errors of law
“without regard to errors” that do not affect the parties’
“substantial rights.” That language seeks to prevent appellate
courts from becoming “ ‘ impregnable citadels of
technicality, ’ ”
Kotteakos, 328 U. S., at 759.
And we have read it as expressing a congressional preference for
determining “harmless error” without the use of presumptions
insofar as those presumptions may lead courts to find an error
harmful, when, in fact, in the particular case before the court, it
is not. See
id., at 760;
O’Neal v.
McAninch,
513 U. S. 432, 436–437
(1995); see also R. Traynor, The Riddle of Harmless Error 26 (1970)
(hereinafter Traynor) (reviewing court normally should “determine
whether the error affected the judgment . . . without benefit of
such aids as presumptions … that expedite fact-finding at
trial ”).
The Federal Circuit’s presumptions exhibit the
very characteristics that Congress sought to discourage. In the
cases before us, they would prevent the reviewing court from
directly asking the harmless-error question. They would prevent
that court from resting its conclusion on the facts and
circumstances of the particular case. And they would require the
reviewing court to find the notice error prejudicial even if that
court, having read the entire record, conscientiously concludes the
contrary.
Second, the Federal Circuit’s framework
imposes an unreasonable evidentiary burden upon the VA. How is the
Secretary to demonstrate, in Sanders’ case for example, that
Sanders
knew that he, not the VA, would have to produce
more convincing evidence that the bazooka accident caused his eye
injury? How could the Secretary demonstrate that there is
no evidence anywhere that would entitle Sanders to
benefits? To show a claimant’s state of mind about such a matter
will often prove difficult, perhaps impossible. And even if the VA
(as in Sanders’ case) searches the military records and comes up
emptyhanded, it may still prove difficult, or impossible, to prove
the nonexistence of evidence lying somewhere about that might
significantly help the claimant.
We have previously pointed out that setting an
evidentiary “barrier so high that it could never be surmounted
would justify the very criticism that spawned the harmless-error
doctrine,” namely, reversing for error “ ‘regardless of its
effect on the judgment.’ ”
Neder v.
United
States,
527 U. S.
1, 18 (1999) (quoting Traynor 50). The Federal Circuit’s
evidentiary rules increase the likelihood of reversal in cases
where, in fact, the error is harmless. And, as we pointed out in
Neder, that likelihood encourages abuse of the judicial
process and diminishes the public’s confidence in the fair and
effective operation of the judicial system. 527 U. S., at 18.
Third, the Federal Circuit’s framework
requires the VA, not the claimant, to explain why the error is
harmless. This Court has said that the party that “seeks to have a
judgment set aside because of an erroneous ruling carries the
burden of showing that prejudice resulted.”
Palmer v.
Hoffman,
318 U. S. 109, 116
(1943); see also
Tipton v.
Socony Mobil Oil Co.,
375 U. S. 34, 36
(1963)
(per curiam); United States v.
Borden
Co.,
347 U. S.
514, 516–517 (1954); cf.
McDonough Power Equipment,
Inc. v.
Greenwood,
464 U. S. 548, 553
(1984);
Market Street R. Co. v.
Railroad Comm’n of
Cal.,
324 U. S.
548, 562 (1945) (finding error harmless “in the absence of any
showing of … prejudice”).
Lower court cases make clear that courts have
correlated review of ordinary administrative proceedings to
appellate review of civil cases in this respect. Consequently, the
burden of showing that an error is harmful normally falls upon the
party attacking the agency’s determination. See,
e.g.,
American Airlines, Inc. v.
Department of Transp.,
202 F. 3d 788, 797 (CA5 2000) (declining to remand where
appellant failed to show that error in administrative proceeding
was harmful);
Air Canada v.
Department of
Transp., 148 F. 3d 1142, 1156–1157 (CADC 1998) (same);
Nelson v.
Apfel, 131 F. 3d 1228, 1236 (CA7
1997) (same);
Bar MK Ranches v.
Yuetter, 994
F. 2d 735, 740 (CA10 1993) (same);
Camden v.
Department of Labor, 831 F. 2d 449, 451 (CA3 1987)
(same);
Panhandle Co-op Assn. v.
EPA, 771
F. 2d 1149, 1153 (CA8 1985) (same);
Frankfort v.
FERC, 678 F. 2d 699, 708 (CA7 1982) (same);
NLRB v.
Seine & Line Fishermen, 374
F. 2d 974, 981 (CA9 1967) (same).
To say that the claimant has the “burden” of
showing that an error was harmful is not to impose a complex system
of “burden shifting” rules or a particularly onerous requirement.
In ordinary civil appeals, for example, the appellant will point to
rulings by the trial judge that the appellant claims are erroneous,
say, a ruling excluding favorable evidence. Often the circumstances
of the case will make clear to the appellate judge that the ruling,
if erroneous, was harmful and nothing further need be said. But, if
not, then the party seeking reversal normally must explain why the
erroneous ruling caused harm. If, for example, the party seeking an
affirmance makes a strong argument that the evidence on the point
was overwhelming regardless, it normally makes sense to ask the
party seeking reversal to provide an explanation, say, by
marshaling the facts and evidence showing the contrary. The party
seeking to reverse the result of a civil proceeding will likely be
in a position at least as good as, and often better than, the
opposing party to explain how he has been hurt by an error. Cf.
United States v.
Fior D’Italia, Inc.,
536 U. S. 238, 256,
n. 4 (2002) (Souter, J., dissenting).
Respondents urge the creation of a special
rule for this context, placing upon the agency the burden of
proving that a notice error did
not cause harm. But we
have placed such a burden on the appellee only when the matter
underlying review was criminal. See,
e.g.,
Kotteakos, 328 U. S., at 760. In criminal cases the
Government seeks to deprive an individual of his liberty, thereby
providing a good reason to require the Government to explain why an
error should not upset the trial court’s determination. And the
fact that the Government must prove its case beyond a reasonable
doubt justifies a rule that makes it more difficult for the
reviewing court to find that an error did not affect the outcome of
a case. See
United States v.
Olano,
507 U. S. 725, 741
(1993) (stating that the Government bears the “burden of showing
the absence of prejudice”). But in the ordinary civil case that is
not so. See
Palmer,
supra, at 116.
C
Our discussion above is subject
to two important qualifications. First, we need not, and we do not,
decide the lawfulness of the use by the Veterans Court of what it
called the “natural effects” of certain kinds of notice errors. We
have previously made clear that courts may sometimes make
empirically based generalizations about what kinds of errors are
likely, as a factual matter, to prove harmful. See
Kotteakos,
supra, at 760–761 (reviewing courts
may learn over time that the “ ‘natural effect’ ” of
certain errors is “ ‘to prejudice a litigant’s substantial
rights’ ” (quoting H. R. Rep. No. 913, 65th Cong., 3d
Sess., p. 1 (1919))). And by drawing upon “experience” that
reveals some such “ ‘natural effect,’ ” a court might
properly influence, though not control, future determinations. See
Kotteakos,
supra, at 760–761
. We
consider here, however, only the Federal Circuit’s harmless-error
framework. That framework, as we have said, is mandatory. And its
presumptions are not based upon an effort to determine “natural
effects.”
Indeed, the Federal Circuit is
the wrong court to make such determinations. Statutes limit the
Federal Circuit’s review to certain kinds of Veterans Court errors,
namely, those that concern “the validity of … any statute or
regulation … or any interpretation thereof.” 38 U. S. C.
§7292. But the factors that inform a reviewing court’s
“harmless-error” determination are various, potentially involving,
among other case-specific factors, an estimation of the likelihood
that the result would have been different, an awareness of what
body (jury, lower court, administrative agency) has the authority
to reach that result, a consideration of the error’s likely effects
on the perceived fairness, integrity, or public reputation of
judicial proceedings, and a hesitancy to generalize too broadly
about particular kinds of errors when the specific factual
circumstances in which the error arises may well make all the
difference. See
Neder, 527 U. S., at 18–19;
Kotteakos,
supra, at 761–763; Traynor 33–37.
It is the Veterans Court, not the Federal
Circuit, that sees sufficient case-specific raw material in
veterans’ cases to enable it to make empirically based, nonbinding
generalizations about “natural effects.” And the Veterans Court,
which has exclusive jurisdiction over these cases, is likely better
able than is the Federal Circuit to exercise an informed judgment
as to how often veterans are harmed by which kinds of notice
errors. Cf.
United States v.
Haggar Apparel Co.,
526 U. S. 380,
394 (1999) (Article I court’s special “expertise … guides it in
making complex determinations in a specialized area of the
law”).
Second, we recognize that Congress has
expressed special solicitude for the veterans’ cause. See
post, at 2 (Souter, J., dissenting). A veteran, after all,
has performed an especially important service for the Nation, often
at the risk of his or her own life. And Congress has made clear
that the VA is not an ordinary agency. Rather, the VA has a
statutory duty to help the veteran develop his or her benefits
claim. See Veterans Claims Assistance Act of 2000, 38 U. S. C.
§5103A. Moreover, the adjudicatory process is not truly
adversarial, and the veteran is often unrepresented during the
claims proceedings. See
Walters v.
National Assn. of
Radiation Survivors,
473 U. S. 305, 311
(1985). These facts might lead a reviewing court to consider
harmful in a veteran’s case error that it might consider harmless
in other circumstances. But that is not the question before us. And
we need not here decide whether, or to what extent, that may be
so.
III
We have considered the two cases
before us in light of the principles discussed. In Sanders’ case,
the Veterans Court found the notice error harmless. And after
reviewing the record, we conclude that finding is lawful. The VA
told Sanders what further evidence would be needed to substantiate
his claim. It failed to specify what portion of any additional
evidence the Secretary would provide (we imagine none) and what
portion Sanders would have to provide (we imagine all).
How could the VA’s failure to
specify this (or any other) division of labor have mattered?
Sanders has pursued his claim for over six decades; he has had
numerous medical examinations; and he should be aware of the
respect in which his benefits claim is deficient (namely, his
inability to show that his disability is connected to his World War
II service). See
supra, at 5
. Sanders has not
told the Veterans Court, the Federal Circuit, or this Court, what
specific additional evidence proper notice would have led him to
obtain or seek. He has not explained to the Veterans Court, to the
Federal Circuit, or to us, how the notice error to which he points
could have made any difference. The Veterans Court did not consider
the harmlessness issue a borderline question. Nor do we. We
consequently reverse the Federal Circuit’s judgment and remand the
case so that the court can reinstate the judgment of the Veterans
Court.
Simmons’ case is more difficult. The Veterans
Court found that the VA had committed a Type One error,
i.e., a failure to tell Simmons what information or
evidence she must provide to substantiate her claim. The VA sent
Simmons a letter that provided her only with general information
about how to prove a claim while telling her nothing at all about
how to proceed further in her own case, a case in which the
question was whether a concededly service-connected left-ear
hearing problem had deteriorated to the point where it was
compensable. And the VA did so in the context of having arranged
for a further right-ear medical examination, which (because of lack
of notice) Simmons failed to attend. The Veterans Court took the
“natural effect” of a Type One error into account while also
reviewing the record as a whole.
Some features of the record suggest the error
was harmless, for example, the fact that Simmons has long sought
benefits and has a long history of medical examinations. But other
features—
e.g., the fact that her left-ear hearing loss was
concededly service connected and has continuously deteriorated over
time, and the fact that the VA had scheduled a further examination
of her right ear that (had notice been given) might have revealed
further left-ear hearing loss—suggest the opposite. Given the
uncertainties, we believe it is appropriate to remand this case so
that the Veterans Court can decide whether re-consideration is
necessary.
* * *
We conclude that the Federal
Circuit’s harmless-error framework is inconsistent with the
statutory requirement that the Veterans Court take “due account of
the rule of prejudicial error.” 38 U. S. C. §7261(b)(2). We
reverse the Federal Circuit’s judgment in Sanders’ case, and we
vacate its judgment in Simmons’ case. We remand both cases for
further proceedings consistent with this opinion.
It is so ordered.
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