Lizzie Mayfield v. R. James Nicholson , 20 Vet. App. 98 ( 2006 )

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO . 02-1077
LIZZIE MAYFIELD , APPELLANT ,
V.
R. JAMES NICHOLSON ,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before GREENE, Chief Judge, and KASOLD and MOORMAN, Judges.
ORDER
In the May 23, 2002, decision on appeal, the Board of Veterans' Appeals (Board) determined
that the notice requirements of 38 U.S.C. § 5103(a) had been satisfied. On April 14, 2005, this Court
affirmed the Board's decision, holding, in part, that a predecisional document in the record not
discussed by the Board satisfied the requirements of section 5103(a). See Mayfield v. Nicholson,
19 Vet.App. 103 (2005) [hereinafter Mayfield I]. On April 5, 2006, the U.S. Court of Appeals for
the Federal Circuit (Federal Circuit) reversed Mayfield I and remanded the matter for further
proceedings consistent with its decision. See Mayfield v. Nicholson, 444 F.3d 1328,1333-34, 1336
(Fed. Cir. 2006). The Federal Circuit instructed that, because the determination of whether the
predecisional document satisfied the Secretary's notice obligation "was a substantially factual
determination of the type that should have been made by the agency in the first instance," this Court
"should have remanded the case to the Board." Id. at 1334-35 (also stating that "VA could have
substantially complied with the VCAA by issuing a fully compliant section 5103 notification before
readjudicating Mrs. Mayfield's claim").
In light of the Federal Circuit's determination that this Court made a factual finding from the
record that should have been made by the Board in the first instance, the Court will remand to the
Board the question of whether the appellant was provided preadjudicatory notice that fulfills the
requirements of section 5103(a) and 38 C.F.R. § 3.159(b) (2005). See id. at 1336 ("As we have
emphasized, whether Mrs. Mayfield received appropriate notice is an issue that should be addressed
by the agency in the first instance, under the proper legal standard. That has not yet happened in this
case."). The Court will retain jurisdiction. Compare Zevalkink v. Brown, 102 F.3d 1236, 1244 (Fed.
Cir. 1996) (suggesting remand to Board of question whether third party qualifies as an accrued-
benefits beneficiary), and Erspamer v. Derwinski, 1 Vet.App. 3, 11-12 (1990) (Court retains
jurisdiction over petition for extraordinary relief in the nature of a writ of mandamus until it is
determined whether the Secretary adhered to time lines for claim processing), with Cleary v. Brown,
8 Vet.App. 305, 307-08 (1995) ("the Court properly could not have retained jurisdiction over the
reversed [Board] decision while the matter was being readjudicated" (emphasis added)). Given the
limited nature of this remand, it is appropriate to set a response time. See GAO v. GAO Pers.
Appeals Bd., 698 F.2d 516, 535-36 (D.C. Cir. 1983) (remanding for consideration of certain
questions and setting 90-day response time); Battle v. Anderson, 594 F.2d 786, 793 (10th Cir. 1979)
(retaining jurisdiction, remanding for additional factfinding, and directing response by specific date).
Upon consideration of the foregoing, it is
ORDERED that the matter is remanded for a limited purpose. On remand, after affording
the appellant an opportunity to be heard on the question of whether or not the notice under section
5103(a) and § 3.159(b) was sufficient, the Board shall determine whether or not the Secretary
provided preadjudicatory notice that complies with the requirements of section 5103(a) and
§ 3.159(b). Thereafter, the Board shall provide a supplemental statement of reasons or bases in
support of its determination that notice was or was not sufficient. It is further
ORDERED that the Secretary, not later than 60 days after the date of this order, provide the
Court such supplemental statement of the Board. Regardless of the outcome of the Board's
determination on this question, the Board shall not take any further action beyond the response
required by this order unless and until the Court relinquishes jurisdiction over the matter.
DATED: June 15, 2006 PER CURIAM.
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