David Forsythe v. Denis R. McDonough, Secretary of Veterans Affairs

To ensure that veterans’ claims are presented to agency decisionmakers with all available support, Congress has directed the Department of Veterans Affairs (VA) to notify each claimant of “any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.” 38 U.S.C. § 5103(a)(1). VA’s regulations provide that this notice must issue “when VA receives a … claim.” 38 C.F.R. § 3.159(b)(1). For years, however, VA has provided no such post-claim notice to veterans, instead offering only a summary of the general evidentiary standards applicable to twelve categories of benefits on a dense form that is part of the claim application package. A divided panel of the Federal Circuit endorsed that regime in this case, holding that the statute imposes no post-claim obligation on VA and that, even if the regulation does, there is no judicial remedy for VA’s noncompliance because it cannot be “prejudicial” to veterans. The questions presented are:

1. Whether the Federal Circuit misinterpreted 38 U.S.C. § 5103(a)(1) to allow VA to issue evidentiary notice only before receiving a veteran’s claim, even though the statute requires notice that accounts for evidence “not previously provided to the Secretary that is necessary to substantiate the claim.”

2. Whether the Federal Circuit violated the longstanding doctrine of Accardi v. Shaughnessy, 347 U.S. 260 (1954), by permitting VA to violate its own regulation on the ground that the agency’s noncompliance cannot be “prejudicial” to veterans.