Factual Applications in CAVC Harmless Error Analysis

April 25th, 2018

General Overview of Harmless Error law.

The major question in this case is how the CAVC should apply the harmless error rule when it might involve making findings of fact.

The Court stated in its supplemental briefing order that it "...has a statutory duty to consider whether any Board error was prejudicial. 38 U.S.C. § 7261(b)(2)." (emphasis added)

From the outset, I need to point out this is not entirely accurate.

38 U.S.C. §7261(b)(2) is much narrower:

"In making the determinations under [its jurisdiction] the Court shall review the record of proceedings [before the BVA] and shall take due account of the rule of prejudicial error." 38 U.S.C. 7261(b)(2). (emphasis added)

The Supreme Court has explained precisely what this meant:

"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." Shinseki v. Sanders, 556 U.S. 396, 406 (2009).

The federal "harmless-error" statute is what is ordinarily applied in civil cases and is codified at 28 U.S.C. §2111.

The harmless error statute directs 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 v. United States, 328 U.S. 750, 758 (1946).

Though the body of law surrounding the federal harmless error rule is in a word, dense, there has been surprisingly little development of "harmless error" jurisprudence at the CAVC, or in the Federal Circuit as it applies to CAVC opinions.

Setting aside the fact that the burden of proving an error harmless often falls to the party who benefits from the error, and that such burden of proof is often "flipped" in CAVC application of the "harmless error" rule (the veteran is required to prove that any BVA error is harmless), two major questions remain largely unanswered in the CAVC's body of harmless error jurisprudence:

1) What rights are substantial, in the context of Title 38, such that harmless error analysis cannot apply to a BVA error?

2) Since the CAVC is prohibited from making initial findings of fact except in rare circumstances pursuant to 38 U.S.C. § 7261(c), how can it conduct certain harmless error analysis without making factual findings?

The Court, through its supplemental briefing order, seeks to resolve at least the second question.

There are many other questions that flow from these two.

I would offer, for consideration, the idea that the second question answers itself: if the CAVC must make a finding of fact to decide if an error is harmless or not, then there is a good possibility that the error involves a substantial right to which harmless error may not apply.

The Federal Circuit has resolved this question in a different way: that court found that where the facts underlying the error are in dispute, "we cannot conduct a harmless error analysis without exceeding the bounds of our jurisdiction, which precludes fact review". Wood v. Peake, 520 F.3d 1345, 1351 (Fed. Cir. 2008). Where the facts underlying the error are not in dispute, the Federal Circuit has found that they are not conducting a factual review but instead "applying a dispositive legal standard to undisputed facts [as] essentially a matter of law". Id

Facts of the BVA Decision.

A September 1974 VA ratings decision found the veteran's mental health condition was not service connected because medical evidence at the time established that the veteran's mental health condition was secondary to his non-service-connected arthritis.

The Veteran argued the VA failed to properly apply the presumption of soundness and/or aggravation [38 USC §1111] and the presumption of service connection for chronic conditions diagnosed in service [38 USC 105(a)] when it denied service connection for a mental health condition.

He argued this because there was evidence in the service treatment records at the time of the 1974 decision showing the veteran's mental health condition may have first appeared in-service, which should have triggered an analysis from the VA whether the in-service mental health condition was, by operation of the presumption of soundness, related to the (then) currently diagnosed mental health condition.

The BVA found Mr. Simmons did not establish CUE as to any failure to apply the presumption of soundness because he had only claimed direct service connection.

Even if there was an error in the failure to apply the presumption of soundness, the BVA alleges the outcome would not have been manifestly different - a required element of a CUE claim - because the VA would still have found the veteran's mental health condition was secondary to his non service connected arthritis.

Veteran's Argument.

The Veteran argues the BVA clearly erred when it held that there was not a manifestly different outcome.

He argues that the presumption of soundness, once it attaches, requires only a showing that the in-service symptoms and condition are the same illness as the currently diagnosed illness.

Instead, he argues, the BVA found that there could not be a manifestly different outcome because there was not evidence that the currently diagnosed mental health condition was causally related to military service.

Secretary's argument.

The Secretary argued the Veteran did not meet his burden of establishing that the BVA clearly erred but even if he did, the veteran did not show the error was harmless, citing to Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010).

Court's Statement of the Issue.

"Assuming, without deciding, that the Board erred regarding Section 105 but that any such error is nonprejudicial because the Board correctly determined that the record does not show a manifestly changed outcome, the Court requests supplemental briefing to aid in the resolution of issues related to the Court's harmless error review.

Therefore, the Court directs the parties to submit supplemental briefing on the following questions:

1) Section 7261(c) provides that "[i]n no event shall findings of fact made by the Secretary or the [Board] be subject to trial de novo by the Court." What is the proper understanding of the prohibitory scope of this statutory provision, including, but not limited to, the reference to "trial de novo," concerning "findings of fact made by the Secretary or the [Board]"?

2) What is the proper standard for the Court to employ in making factual determinations pursuant to a harmless error analysis? Should it find facts de novo in all cases, or is there some other more appropriate standard?

3) What is the proper test for making the ultimate determination as to whether an error harmed a VA claimant? Is the test whether the error would affect the judgment, affect the essential fairness of the adjudication, see Sanders, 556 U.S. at 407-08; Vogan, 24 Vet.App. at 163, or is there another more appropriate test? See Sanders, 556 U.S. at 406 (holding that the statute "requires the Veterans Court to apply the same kind of 'harmless-error' rule that courts ordinarily apply in civil cases"); but see id. at 412 (noting that the VA "adjudicatory process in not truly adversarial, . . . [which] might lead a reviewing court to consider harmful in a veteran's case error that it might consider harmless in other circumstances") (internal citation removed).

4) Although the Court normally "may examine the entire record before the Agency," Vogan, 24 Vet.App. at 164, would the Court's examination differ in determining whether an error was harmless when a VA claimant asserts CUE given that CUE is adjudicated "based on the record and the law that existed at the time of the prior . . . decision," Russell v. Principi, 3 Vet.App. 310, 314 (1992)?

5) In undertaking a harmless error analysis, are there any limitations as to the Court's ability to make factual and legal determinations and to apply the law to the facts found?"