Susy Short Bear v. R. James Nicholson

19 Vet. App. 341, 2005 U.S. Vet. App. LEXIS 585, 2005 WL 2095312
CourtUnited States Court of Appeals for Veterans Claims
DecidedAugust 31, 2005
Docket03-2145
StatusPublished
Cited by4 cases

This text of 19 Vet. App. 341 (Susy Short Bear v. R. James Nicholson) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Susy Short Bear v. R. James Nicholson, 19 Vet. App. 341, 2005 U.S. Vet. App. LEXIS 585, 2005 WL 2095312 (Cal. 2005).

Opinions

ORDER

PER CURIAM:

Veteran Susy Short Bear appeals an October 21, 2003, decision of the Board of Veterans’ Appeals (Board) that denied her entitlement to a clothing allowance under 38 U.S.C. § 1162 because that statute does not authorize an allowance for damaged undergarments, the only clothing Ms. Short Bear claims to be damaged. Although she filed her appeal pro se, Ms. Short Bear subsequently obtained counsel and revised the basis of her appeal to one based on a failure of the Secretary to provide adequate notice. Appellant’s Brief (Br.) at 1; Appellant’s Supplemental (Supp.) Br. at 2-3. More specifically, Ms. Short Bear asserts that the Secretary failed to ask her whether her outergar-ments were damaged in addition to her undergarments and that such failure was a section 38 U.S.C. § 5103(a) notice error that is naturally prejudicial. Appellant’s Supp. Br. at 3-7. The Secretary argues, inter alia, that Ms. Short Bear had full knowledge of the requirement that outerwear had to be damaged to support a clothing allowance award, but that she consistently maintained only that her undergarments were damaged. Secretary’s Supp. Br. at 2-6. For the reasons set forth below, the Board’s decision will be affirmed.

A VA clothing allowance is authorized under section 1162 on two bases: (1) When “a prosthetic or orthopedic appliance [related to a service-connected disability] ... tends to wear out or tear the clothing of the veteran” or (2) when the veteran uses “medication which (A) a physician has prescribed for a skin condition which is due to a service-connected disability, and (B) the Secretary determines causes irreparable damage to the veteran’s outergarments.” 38 U.S.C. § 1162. The form upon which an application for a clothing allowance may be made, VA Form 21-8678, provides information identifying these two bases for an award. See Record (R.) at 264. The form also requires that the claimant certify with her signature that she is entitled to receive the clothing allowance because she is either using a prosthetic or orthopedic appliance that damages clothing or using a medication that irreparably damages her “outer clothing.” Id. Instructions at the bottom of the form reiterate that a veteran is entitled to a clothing allowance when the use of a prosthetic or orthopedic appliance tends to wear out or tear clothing, or the use of medication irreparably damages the veteran’s “outer garments.” Id. In a potentially confusing section of the instructions, however, the claimant is informed that the medications covered are those that damage the “veteran’s clothing.” Id. With her application, Ms. Short Bear noted that her service-connected condition required the use of a prescribed medical cream that stained her “underwear”; there was no indication that any other clothing was damaged by the use of the medication. See R. at 264-65.

In a decision denying her claim, a VA regional office (RO) advised Ms. Short Bear of the two bases for awarding a clothing allowance and notified her that she was “not eligible for the payment of the annual clothing allowance.” R. at 268-69. Ms. Short Bear disagreed with that decision and asked for reconsideration. R. at 271. In the Statement of the Case (SOC), Ms. Short Bear was advised that [343]*343her claim was denied because “[tjhere is no provision in the law to pay for ... damage to under-garments.” Supp. R. at 4. She appealed to the Board and argued that she had to “buy new underw[ear] every week.” R. at 291-92. While the matter was on appeal to the Board, Ms. Short Bear’s representative argued that “[i]n actuality any piece of clothing is an outergarment.” R. at 331.

On appeal, Ms. Short Bear asserts that the Secretary erred by failing to comply with the notice provisions required by the Veterans Claims Assistance Act of 2000 (VCAA), Pub.L. No. 106-475, 114 Stat.2096, 2096-97 (codified at 38 U.S.C. §§ 5103-5103A). Appellant’s Supp. Br. at 4-5. The Board acknowledges in its decision that the record on appeal does not reflect notice to the appellant of the provisions of the VCAA in connection with her claim for clothing allowance. R. at 3. Error alone, however, is insufficient to successfully sustain an appeal; the error must also be prejudicial. See Mayfield v. Nicholson, 19 Vet.App. 103, 119 (2005); see also 38 U.S.C. § 5103(a); Conway v. Principi, 353 F.3d 1369, 1375 (Fed.Cir.2004) (concluding that the Court must “ ‘take due account of the rule of prejudicial error’ ”); Parker v. Brown, 9 Vet.App. 476, 481 (1996) (finding that technical error in the absence of prejudice to be harmless); Yabut v. Brown, 6 Vet.App. 79, 85 (1993) (finding alleged error not harmless “where appellant has presented a plausible argument that he had been prejudiced”). For the reasons stated below, we conclude that the error in this matter is not prejudicial.

The Secretary is required to inform the claimant of the information and evidence not of record (1) that is necessary to substantiate the claim, (2) that the Secretary will seek to obtain, if any, and (3) that the claimant is expected to provide, if any. See 38 U.S.C. § 5103(a); Mayfield, 19 Vet.App. at 109-10 (citing Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002)); 38 C.F.R. § 3.159(b). The Secretary is also required to “request that the claimant provide any evidence in the claimant’s possession that pertains to the claim.” Mayfield, 19 Vet.App. at 110 (quoting 38 C.F.R. § 3.159(b)(1) (2002)); see also Pelegrini v. Principi, 18 Vet.App. 112, 121 (2004). The notice required under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) must be provided upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction so that the claimant has a “meaningful opportunity to participate effectively in the processing of his or her claim.” Mayfield, 19 Vet.App. at 120-21. The Secretary’s failure to tell the appellant what evidence is necessary to substantiate the claim is presumptively prejudicial. See id. at 122. Any other statutory or regulatory notice error, including an error in the timing of notice, is not remandable error unless the appellant “identifies] with considerable specificity, how the notice was defective and what evidence the appellant would have provided or requested the Secretary to obtain ...

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Bluebook (online)
19 Vet. App. 341, 2005 U.S. Vet. App. LEXIS 585, 2005 WL 2095312, Counsel Stack Legal Research, https://law.counselstack.com/opinion/susy-short-bear-v-r-james-nicholson-cavc-2005.