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Conway v. Principi

United States Court of Appeals for the Federal Circuit

January 7, 2004, Decided

03-7072

Opinion

 [*1371]  CLEVENGER, Circuit Judge.

The Secretary of Veterans Affairs ("Secretary") appeals from a decision of the United States Court of Appeals for Veterans Claims ("Veteran's Court") remanding a veteran's claim for service-connected disability compensation to the Board of Veterans' Appeals ("Board"). The Veteran's Court remanded because the veteran did not receive the notice required by the Veterans Claims Assistance Act [**2]  ("VCAA"), as codified at 38 U.S.C. § 5103(a). We vacate the Veteran's Court decision and remand to the Veteran's Court because the Veteran's Court committed legal error when it expressly declined to "take due account of the rule of prejudicial error," as it is required to do by 38 U.S.C. § 7261(b)(2).

Enacted on November 9, 2000, the VCAA restated the responsibilities and duties of the Secretary with respect to claims for disability compensation filed by veterans. See Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified in scattered sections of 38 U.S.C.). The portion of the VCAA relevant to this appeal appears in 38 U.S.C. § 5103(a):

] Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, 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 that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary [**3]  . . . will attempt to obtain on behalf of the claimant.

38 U.S.C.A. § 5103(a) (2002). ] The Secretary has promulgated a regulation relating to this duty to notify: "VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant." 38 C.F.R. § 3.159(b)(1) (2002).

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353 F.3d 1369 *; 2004 U.S. App. LEXIS 115 **

HENRY L. CONWAY, JR., Claimant-Appellee, v. ANTHONY J. PRINCIPI, Secretary of Veterans Affairs, Respondent-Appellant.

Subsequent History: On remand at, Remanded by Conway v. Principi, 2004 U.S. App. Vet. Claims LEXIS 643 (U.S. App. Vet. Cl., Aug. 3, 2004)

Prior History:  [**1]  Appealed from: United States Court of Appeals for Veterans Claims. Judge Donald L. Ivers.

Conway v. Principi, 2002 U.S. App. Vet. Claims LEXIS 1073 (U.S. App. Vet. Cl., Nov. 20, 2002)

Disposition: VACATED AND REMANDED.

CORE TERMS

Veteran's, notice, prejudicial error, due account, proceedings, claimant, harmless, cases, requirement of notice, question of law

Military & Veterans Law, Veterans, Claim Procedures, Department of Veterans Affairs, Civil Procedure, Appeals, Appellate Jurisdiction, General Overview, Appeals & Review, US Court of Appeals for Veterans Claims, Standards of Review, Harmless & Invited Errors, Harmless Error Rule, Prejudicial Errors, Criminal Law & Procedure, Harmless & Invited Error, Definition of Harmless & Invited Error, Final Judgment Rule