PREC 7-2004    Pelegrini v. Principi, No. 01-944, 2004 WL 1403714 (Vet. App. June 24, 2004)

  Citation: Vet. Aff. Op. Gen. Couns. Prec. 7-2004, VAOPGCPREC 7-2004, 2004

QUESTION PRESENTED:

What did the United States Court of Appeals for Veterans Claims hold in Pelegrini v. Principi, No. 01-944, 2004 WL 1403714 (Vet. App. June 24, 2004), regarding the Department of Veterans Affairs' obligation to provide notice pursuant to 38 U.S.C. § 5103(a)?

HELD:

The only holdings in Pelegrini v. Principi, No. 01-944, 2004 WL 1403714 (Vet. App. June 24, 2004), regarding the obligation of the Department of Veterans Affairs (VA) to provide notice pursuant to 38 U.S.C. § 5103(a) are the following:

1.  Section 5103(a) of title 38, United States Code, and section 3.159(b)(1) of title 38, Code of Federal Regulations, generally require that a claimant for service connection be provided notice before an initial unfavorable decision by a VA agency of original jurisdiction (AOJ).

2.  Section 5103(a) of title 38, United States Code, and 38 C.F.R. § 3.159(b)(1) apply to Mr. Pelegrini's claim, which the AOJ had denied before November 9, 2000, but which was still pending before VA on that date. 

3.  A VA AOJ did not err by not providing notice that complies with 38 U.S.C. § 5103(a) prior to the initial denial of Mr. Pelegrini's claim before the date on which the statute was enacted. 

4.  If the United States Court of Appeals for Veterans Claims (CAVC) remands a case for VA to provide notice consistent with 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) (notice that informs the claimant of any information and evidence not of record that is necessary to substantiate the claim, indicates which party is responsible for obtaining which portion of such evidence, and requests that the claimant provide any evidence in the claimant's possession that pertains to the claim), the Board must ensure that complying notice is provided unless the Board makes findings regarding the completeness of the record or as to other facts that would permit the CAVC to conclude that the notice error was harmless, including an enumeration of all evidence now missing from the record that must be part of the record for the claimant to prevail on the claim.