SHINSEKI, SECRETARY OF VETERANS AFFAIRS v. SANDERS

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Syllabus
SHINSEKI, SECRETARY OF VETERANS AFFAIRS v.
SANDERS
certiorari to the united states court of appeals for
the federal circuit
No. 07–1209. Argued December 8, 2008—Decided April 21, 2009*
As part of the Department of Veterans Affairs’ (VA) statutory duty to help
a veteran develop a benefits claim, the Secretary of Veterans Affairs
(Secretary) must notify an applicant of any information or evidence that
is necessary to substantiate the claim. 38 U. S. C. § 5103(a). VA regu
lations require the notice to specify (1) what further information is nec
essary, (2) what portions of that information the VA will obtain, and
(3) what portions the claimant must obtain. These requirements are
referred to as Type One, Type Two, and Type Three, respectively.
The Court of Appeals for Veterans Claims (Veterans Court), which
hears initial appeals from VA claims decisions, has a statutory duty to
“take due account of the rule of prejudicial error.” § 7261(b)(2). It has
developed a system for dealing with notice errors, whereby a claimant
arguing that the VA failed to give proper notice must explain precisely
how the notice was defective. The reviewing judge will then decide
what “type” of notice error the VA committed. Under the Veterans
Court’s approach, a Type One error has the “natural effect” of harming
the claimant, but Types Two and Three errors do not. In the latter
instances, the claimant must show harm, e. g., by describing what evi
dence he would have provided (or asked the Secretary to provide) had
the notice not been defective, and explaining just how the lack of that
notice and evidence affected the adjudication’s essential fairness.
The Federal Circuit, which reviews Veterans Court decisions, re
jected the Veterans Court’s approach and set forth its own framework
for determining whether a notice error is harmless. When the VA pro
vides a claimant with a notice that is deficient in any respect, the frame
work requires the Veterans Court to presume that the error is prejudi
cial and requires reversal unless the VA can demonstrate (1) that the
defect was cured by the claimant’s actual knowledge or (2) that benefits
could not have been awarded as a matter of law. The Federal Circuit
applied its framework in both of the present cases.
*Together with Shinseki, Secretary of Veterans Affairs v. Simmons
(see this Court’s Rule 12.4), also on certiorari to the same court.

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In respondent Sanders’ case, the VA denied disability benefits on
the ground that Sanders’ disability, blindness in his right eye, was
not related to his military service. Sanders argued to the Veterans
Court that the VA had made notice errors Type Two and Type Three
when it informed him what further information was necessary, but
failed to tell him which portions of that information the Secretary would
provide and which portions he would have to provide. The Veterans
Court held these notice errors harmless, but the Federal Circuit re
versed, ruling that the VA had not made the necessary claimant
knowledge or benefits-ineligibility showing required by the Federal Cir
cuit’s framework.
The VA also denied benefits in respondent Simmons’ case after finding
that her left-ear hearing loss, while service connected, was not severe
enough to warrant compensation. Simmons argued to the Veterans
Court, inter alia, that the VA had made a Type One notice error by
failing to notify her of the information necessary to show worsening of
her hearing. The court agreed, finding the error prejudicial. Noting
that a Type One notice error has the “natural effect” of producing preju
dice, the Veterans Court added that its review of the record convinced
it that Simmons did not have actual knowledge of what evidence was
necessary to substantiate her claim and, had the VA told her more spe
cifically what additional information was needed, she might have ob
tained that evidence. The Federal Circuit affirmed.
Held:
1. The Federal Circuit’s harmless-error framework conflicts with
§ 7261(b)(2)’s requirement that the Veterans Court take “due account of
the rule of prejudicial error.” Pp. 406–412.
(a) That § 7261(b)(2) requires the same sort of “harmless-error”
rule as is ordinarily applied in civil cases is shown by the statutory
words “take due account” and “prejudicial error.” Congress used the
same words in the Administrative Procedure Act (APA), 5 U. S. C. § 706,
which is an “ ‘administrative law . . . harmless error rule,’ ” National
Assn. of Home Builders v. Defenders of Wildlife, 551 U. S. 644, 659–660.
Legislative history confirms that Congress intended § 7261(b)(2) to in
corporate the APA’s approach. Pp. 406–407.
(b) Three related features, taken together, demonstrate that the
Federal Circuit’s framework mandates an approach to harmless error
that differs significantly from the one normally taken in civil cases.
First, the framework is too complex and rigid: In every case involving
any type of notice error, the Veterans Court must find the error harmful
unless the VA demonstrates the claimant’s actual knowledge curing the
defect or his ineligibility for benefits as a matter of law. An error’s

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harmlessness should not be determined through the use of mandatory
presumptions and rigid rules, but through the case-specific application
of judgment, based upon examination of the record. See Kotteakos v.
United States, 328 U. S. 750, 760. Second, the framework imposes an
unreasonable evidentiary burden on the VA, requiring the Secretary to
demonstrate, e. g., a claimant’s state of mind about what he knew or
the nonexistence of evidence that might significantly help the claimant.
Third, the framework requires the VA, not the claimant, to explain why
the error is harmless. The burden of showing harmfulness is normally
on the party attacking an agency’s determination. See, e. g., Palmer v.
Hoffman, 318 U. S. 109, 116. This Court has placed the burden on the
Government only when the underlying matter was criminal. See, e. g.,
Kotteakos, supra, at 760. The good reasons for this rule do not apply
in the ordinary civil case. Pp. 407–411.
(c) The foregoing analysis is subject to two important qualifica
tions. First, the Court need not, and does not, decide the lawfulness of
the Veterans Court’s reliance on the “natural effects” of certain kinds
of notice errors. Second, although Congress’ special solicitude for vet
erans might lead a reviewing court to consider harmful in a veteran’s
case error that it might consider harmless in other cases, that is not at
issue, and need not be decided here. Pp. 411–412.
2. In Sanders’ case, a review of the record demonstrates that the Vet
erans Court lawfully found the notice errors harmless. The VA’s Types
Two and Three notice errors did not matter, given that Sanders has
pursued his claim for many years and should be aware of why he has
been unable to show that his disability is service connected. Sanders
has not told the reviewing courts what additional evidence proper notice
would have led him to obtain or seek and has not explained how the
notice errors could have made any difference.
In Simmons’ case, some features of the record suggest that the VA’s
Type One error was harmless, e. g., that she has long sought benefits
and has a long history of medical examinations. But other features,
e. g., that her left-ear hearing loss was concededly service connected and
has continuously deteriorated over time, suggest the opposite. Given
the uncertainties, the Veterans Court should decide whether reconsider
ation is necessary. Pp. 412–414.
487 F. 3d 881, reversed and remanded; 487 F. 3d 892, vacated and
remanded.
Breyer, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Scalia, Kennedy, Thomas, and Alito, JJ., joined. Souter, J., filed

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a dissenting opinion, in which Stevens and Ginsburg, JJ., joined, post,
p. 414.
Eric D. Miller argued the cause for petitioner. With him
on the briefs were former Solicitor General Garre, Assistant
Attorney General Katsas, Deputy Solicitor General Kneed
ler, Todd M. Hughes, and Paul J. Hutter.
Christopher J. Meade argued the cause for respondent
Simmons. With him on the brief was Anne K. Small.
Mark R. Lippman argued the cause for respondent Sanders.
With him on the brief was Michael A. Morin.†
Justice Breyer delivered the opinion of the Court.
In these two civil cases, the Department of Veterans Af
fairs (VA) denied veterans’ claims for disability benefits. In
both cases the VA erroneously failed to provide the veteran
with a certain kind of statutorily required notice. See 38
U. S. C. § 5103(a). In both cases the VA argued that the
error was harmless. And in both cases the Court of Appeals
for the Federal Circuit, after setting forth a framework for
determining whether a notice error is harmless, rejected the
VA’s argument.
In our view, the Federal Circuit’s “harmless-error” frame
work is too complex and rigid, its presumptions impose un
reasonable evidentiary burdens upon the VA, and it is too
likely too often to require the Court of Appeals for Veterans
Claims (Veterans Court) to treat as harmful errors that in
fact are harmless. We conclude that the framework conflicts
with established law. See § 7261(b)(2) (Veterans Court must
“take due account of the rule of prejudicial error”).
†Briefs of amici curiae urging affirmance were filed for the American
Legion et al. by Beth S. Brinkmann, Brian R. Matsui, and Barton F.
Stichman; and for the Washington Legal Foundation et al. by Daniel J.
Popeo and Richard A. Samp.
Blair Elizabeth Taylor filed a brief for the Federal Circuit Bar Associa
tion as amicus curiae.

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I
A
The law entitles veterans who have served on active duty
in the United States military to receive benefits for disabili
ties caused or aggravated by their military service. The
Veterans Claims Assistance Act of 2000 requires the VA to
help a veteran develop his or her benefits claim. § 5103A.
In doing so, the Secretary of Veterans Affairs (Secretary),
upon “receipt of ” an “application” for benefits, must “notify
the claimant . . . 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 ” the re
quired “notice,” the Secretary must also “indicate which por
tion of ” the required “information and evidence . . . is to be
provided by the claimant and which portion . . . the Secretary
. . . will attempt to obtain.” § 5103(a).
Repeating these statutory requirements in its regulations,
the VA has said it will provide a claimant with a letter that
tells the claimant (1) what further information is necessary
to substantiate his or her claim; (2) what portions of that
information the VA will obtain for the claimant; and (3) what
portions the claimant must obtain. 38 CFR § 3.159(b) (2008).
At the time of the decisions below, the regulations also
required the VA to tell the claimant (4) that he may sub
mit any other relevant information that he has avail
able. § 3.159(b)(1). (The VA refers to these notice require
ments as Type One, Type Two, Type Three, and Type
Four, respectively.)
B
The VA’s regional offices decide most claims. A claimant
may appeal an adverse regional office decision to the VA’s
Board of Veterans’ Appeals, an administrative board with
the power to consider certain types of new evidence. 38
U. S. C. §§ 7107(b), 7109(a); 38 CFR § 20.1304(c). The claim
ant may seek review of an adverse Board decision in the
Veterans Court, an Article I court. And the claimant (or the

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Government) may appeal an adverse decision of the Veterans
Court to the Court of Appeals for the Federal Circuit—but
only in respect to certain legal matters, namely, “the validity
. . . of any statute or regulation . . . or any interpretation
thereof . . . that was relied on” by the Veterans Court in
making its decision. 38 U. S. C. § 7292.
A specific statute requires the Veterans Court to “take
due account of the rule of prejudicial error.” § 7261(b)(2).
In applying this statutory provision, the Veterans Court has
developed its own special framework for notice errors.
Under this framework, a claimant who argues that the VA
failed to give proper notice must explain precisely how the
notice was defective. Then the reviewing judge will decide
what “type” of notice error the VA committed. The Veter
ans Court has gone on to say that a Type One error (i. e., a
failure to explain what further information is needed) has
the “natural effect” of harming the claimant; but errors of
Types Two, Three, or Four (i. e., a failure to explain just who,
claimant or agency, must provide the needed material or to
tell the veteran that he may submit any other evidence avail
able) do not have the “natural effect” of harming the claim
ant. In these latter instances, the claimant must show how
the error caused harm, for example, by stating in particular
just “what evidence” he would have provided (or asked the
Secretary to provide) had the notice not been defective, and
explaining just “how the lack of that notice and evidence af
fected the essential fairness of the adjudication.” Mayfield
v. Nicholson, 19 Vet. App. 103, 121 (2005).
C
In the first case, Woodrow Sanders, a veteran of World
War II, claimed that a bazooka exploded near his face in
1944, causing later blindness in his right eye. His wartime
medical records, however, did not indicate any eye problems.
Indeed, his 1945 discharge examination showed near-perfect
vision. But a 1948 eye examination revealed an inflamma
tion of the right-eye retina and surrounding tissues—a condi

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tion that eventually left him nearly blind in that eye. Soon
after the examination Sanders filed a claim for disability ben
efits. But in 1949 the VA denied benefits on the ground that
Sanders had failed to show a connection between his eye con
dition and his earlier military service.
Forty-two years later, Sanders asked the VA to reopen his
benefits claim. He argued that the 1944 bazooka explosion
had hurt his eye, and added that he had begun to experience
symptoms—blurred vision, swelling, and loss of sight—in
1946. He included a report from a VA doctor, Dr. Joseph
Ruda, who said that “[i]t is not inconceivable that” the condi
tion “could have occurred secondary to trauma, as stated . . .
by” Sanders. A private ophthalmologist, Dr. Gregory
Strainer, confirming that Sanders’ right retina was scarred,
added that this “type of . . . injury . . . can certainly be
concussive in character.” App. to Pet. for Cert. 26a–27a.
In 1992, the VA reopened Sanders’ claim. Id., at 29a.
After obtaining Sanders’ military medical records, the VA
arranged for a further medical examination, this time by VA
eye specialist Dr. Sheila Anderson. After examining Sand
ers’ medical history (including records of the examinations
made at the time of Sanders’ enlistment and discharge), An
derson agreed with the medical diagnosis but concluded that
Sanders’ condition was not service related. Since Sanders’
right-eye “visual acuity” was “20/20” upon enlistment and
“20/25” upon discharge, and he had “reported decreased vi
sion only 6 months prior” to his 1948 doctor’s “visit,” and
since “there are no other signs of ocular trauma,” Anderson
thought that Sanders’ condition “is most likely infectious in
nature, although the etiology at this point is impossible to
determine.” “Based on the documented records,” she con
cluded, “the patient did not lose vision while on active duty.”
The VA regional office denied Sanders’ claim. Ibid.
Sanders sought Board review, and in the meantime he ob
tained the opinion of another VA doctor, Dr. Duane Nii, who

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said that the “etiology of the patient’s” eye condition “is . . .
difficult to ascertain.” He thought that “it is possible that”
the condition “could be related to” a bazooka explosion,
though the “possibility of ” an infection “as the etiology . . .
could also be entertained.” Id., at 30a. The Board con
cluded that Sanders had failed to show that the eye injury
was service connected. The Board said that it had relied
most heavily upon Anderson’s report because, unlike other
reports, it took account of Sanders’ military medical records
documenting his eyesight at the time of his enlistment and
discharge. And the Board consequently affirmed the re
gional office’s denial of Sanders’ claim.
Sanders then appealed to the Veterans Court. There he
argued, among other things, that the VA had made a notice
error. Sanders conceded that the VA had sent him a letter
telling him (1) what further information was necessary to
substantiate his claim. But, he said, the VA letter did not
tell him (2) which portions of the information the Secretary
would provide or (3) which portions he would have to pro
vide. That is to say, he complained about notice errors Type
Two and Type Three.
The Veterans Court held that these notice errors were
harmless. It said that Sanders had not explained how he
would have acted differently, say, by identifying what dif
ferent evidence he would have produced or asked the Secre
tary to obtain for him, had he received proper notice. Find
ing no other error, the Veterans Court affirmed the Board’s
decision.
D
The Court of Appeals for the Federal Circuit reviewed the
Veterans Court’s decision and held that the Veterans Court
was wrong to find the notice error harmless. The Federal
Circuit wrote that when the VA provides a claimant with a
notice letter that is deficient in any respect (to the point
where a “reasonable person” would not have read it as pro

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viding the necessary information), the Veterans Court
“should . . . presum[e]” that the notice error is “prejudicial,
requiring reversal unless the VA can show that the error did
not affect the essential fairness of the adjudication.” Sand
ers v. Nicholson, 487 F. 3d 881, 889 (2007). To make this
latter showing, the court added, the VA must “demonstrate”
(1) that the “defect was cured by actual knowledge on the”
claimant’s “part,” or (2) “that a benefit could not have been
awarded as a matter of law.” Ibid. Because the VA had
not made such a showing, the Federal Circuit reversed the
Veterans Court’s decision.
E
In the second case before us, the claimant, Patricia Sim
mons, served on active military duty from December 1978 to
April 1980. While on duty she worked in a noisy environ
ment close to aircraft; after three months she began to lose
hearing in her left ear; and by the time she was discharged,
her left-ear hearing had become worse. Soon after her dis
charge, Simmons applied for disability benefits. The VA re
gional office found her hearing loss was service connected;
but it also found the loss insufficiently severe to warrant
compensation. In November 1980, it denied her claim.
In 1998, Simmons asked the VA to reopen her claim. She
provided medical examination records showing further loss
of hearing in her left ear along with (what she considered
related) loss of hearing in her right ear. The VA arranged
for hearing examinations by VA doctors in 1999, 2001,
and 2002. The doctors measured her left-ear hearing loss,
ranking it as moderate to severe; they also measured her
right-ear hearing loss, ranking it as mild to moderate.
After comparing the results of the examinations with a
VA hearing-loss compensation schedule, the regional office
concluded that Simmons’ left-ear hearing loss, while service
connected, was not severe enough to warrant compensation.
At the same time, the regional office concluded that her
right-ear hearing loss was neither service connected nor

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sufficiently severe. Simmons appealed the decision to the
Board, which affirmed the regional office’s determination.
In 2003, Simmons appealed to the Veterans Court.
Among other things, she said that she had not received a
notice about (and she consequently failed to attend) a further
right-ear medical examination that the VA later told her it
had arranged. She added that, in respect to her claim for
benefits for loss of hearing in her left ear, the VA had made
a Type One notice error (i. e., it had failed to tell her what
further information was needed to substantiate her claim).
Simmons conceded that she had received a letter from the
VA. But the letter told her only what, in general, a person
had to do to show that a hearing injury was service con
nected. It did not tell her anything about her specific prob
lem, namely, what further information she must provide to
show a worsening of hearing in her left ear, to the point
where she could receive benefits.
The Veterans Court agreed with Simmons, and it found
both errors prejudicial. In respect to Simmons’ left-ear
hearing loss (the matter at issue here), it pointed out that it
had earlier said (in Mayfield, 19 Vet. App., at 120–124) that
a Type One notice error has the “ ‘natural effect’ of producing
prejudice.” The court added that its “revie[w] [of] the rec
ord in its entirety” convinced it that Simmons did not have
“actual knowledge of what evidence was necessary to sub
stantiate her claim” and, had the VA told Simmons more spe
cifically about what additional medical information it needed,
Simmons might have “obtained” a further “private” medical
“examination substantiating her claim.” App. to Pet. for
Cert. 81a. The Veterans Court consequently remanded the
case to the Board.
The Government appealed the Veterans Court’s determi
nation to the Court of Appeals for the Federal Circuit. And
that court affirmed the Veterans Court’s decision on the basis
of its decision in Sanders. Simmons v. Nicholson, 487 F. 3d
892 (2007).

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F
We granted certiorari in both Sanders’ and Simmons’ cases
in order to determine the lawfulness of the Federal Circuit’s
“harmless-error” holdings.
II
The Federal Circuit’s holdings flow directly from its use
of the “harmless-error” framework that we have described.
Supra, at 404. Thus we must decide whether that frame
work is consistent with a particular statutory requirement,
namely, the requirement that the Veterans Court “take
due account of the rule of prejudicial error,” 38 U. S. C.
§ 7261(b)(2). See supra, at 401. We conclude that the
framework is not consistent with the statutory demand.
A
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. The statutory words “take due account” and “preju
dicial error” make clear that is so. Congress used the same
words in the Administrative Procedure Act (APA). 5
U. S. C. § 706 (“[A] court shall review the whole record . . .
and due account shall be taken of the rule of prejudicial
error”). The Attorney General’s Manual on the Administra
tive Procedure Act explained that the APA’s reference to
“prejudicial error” is intended to “su[m] up in succinct fash
ion the ‘harmless error’ rule applied by the courts in the
review of lower court decisions as well as of administrative
bodies.” Dept. of Justice, Attorney General’s Manual on the
Administrative Procedure Act 110 (1947) (emphasis added).
And we have previously described § 706 as an “ ‘administra
tive law . . . harmless error rule.’ ” National Assn. of Home
Builders v. Defenders of Wildlife, 551 U. S. 644, 659–660
(2007) (quoting PDK Labs. Inc. v. United States Drug En
forcement Admin., 362 F. 3d 786, 799 (CADC 2004)). Legis

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lative history confirms that Congress intended the Veterans
Court “prejudicial error” statute to “incorporate a refer
ence” to the APA’s approach. S. Rep. No. 100–418, p. 61
(1988). We have no indication of any relevant distinction
between the manner in which reviewing courts treat civil
and administrative cases. Consequently, we assess the law
fulness of the Federal Circuit’s approach in light of our gen
eral case law governing application of the harmless-error
standard.
B
Three related features of the Federal Circuit’s framework,
taken together, convince us that it mandates an approach to
harmless error that differs significantly from the approach
courts normally take in ordinary civil cases. First, the
framework is complex, rigid, and mandatory. In every case
involving a notice error (of no matter which kind) the Veter
ans Court must find the error harmful unless the VA “dem
onstrate[s]” (1) that the claimant’s “actual knowledge” cured
the defect or (2) that the claimant could not have received a
benefit as a matter of law. Suppose the notice error, as in
Sanders’ case, consisted of a failure to describe what addi
tional information, if any, the VA would provide. It might
be obvious from the record in the particular case that the
error made no difference. But under the Federal Circuit’s
rule, the Veterans Court would have to remand the case for
new proceedings regardless.
We have previously warned against courts’ determining
whether an error is harmless through the use of mandatory
presumptions and rigid rules rather than case-specific appli
cation of judgment, based upon examination of the record.
See Kotteakos v. United States, 328 U. S. 750, 760 (1946).
The federal “harmless-error” statute, now codified at 28
U. S. C. § 2111, tells 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 appel
late courts from becoming “ ‘impregnable citadels of techni

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cality,’ ” Kotteakos, 328 U. S., at 759. And we have read it
as expressing a congressional preference for determining
“harmless error” without the use of presumptions insofar as
those presumptions may lead courts to find an error harmful,
when, in fact, in the particular case before the court, it is
not. See id., at 760; O’Neal v. McAninch, 513 U. S. 432, 436–
437 (1995); see also R. Traynor, The Riddle of Harmless
Error 26 (1970) (hereinafter Traynor) (reviewing court nor
mally should “determine whether the error affected the
judgment . . . without benefit of such aids as presumptions
. . . that expedite fact-finding at the trial”).
The Federal Circuit’s presumptions exhibit the very char
acteristics that Congress sought to discourage. In the cases
before us, they would prevent the reviewing court from di
rectly asking the harmless-error question. They would pre
vent that court from resting its conclusion on the facts and
circumstances of the particular case. And they would re
quire the reviewing court to find the notice error prejudicial
even if that court, having read the entire record, conscien
tiously concludes the contrary.
Second, the Federal Circuit’s framework imposes an unrea
sonable evidentiary burden upon the VA. How is the Secre
tary to demonstrate, in Sanders’ case for example, that Sand
ers knew that he, not the VA, would have to produce more
convincing evidence that the bazooka accident caused his eye
injury? How could the Secretary demonstrate that there is
no evidence anywhere that would entitle Sanders to bene
fits? To show a claimant’s state of mind about such a matter
will often prove difficult, perhaps impossible. And even if
the VA (as in Sanders’ case) searches the military records
and comes up emptyhanded, it may still prove difficult, or
impossible, to prove the nonexistence of evidence lying some
where about that might significantly help the claimant.
We have previously pointed out that setting an evidentiary
“barrier so high that it could never be surmounted would

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justify the very criticism that spawned the harmless-error
doctrine,” namely, reversing for error “ ‘regardless of its ef
fect on the judgment.’ ” Neder v. United States, 527 U. S. 1,
18 (1999) (quoting Traynor 50). The Federal Circuit’s evi
dentiary rules increase the likelihood of reversal in cases
where, in fact, the error is harmless. And, as we pointed
out in Neder, that likelihood encourages abuse of the judicial
process and diminishes the public’s confidence in the fair and
effective operation of the judicial system. 527 U. S., at 18.
Third, the Federal Circuit’s framework requires the VA,
not the claimant, to explain why the error is harmless. This
Court has said that the party that “seeks to have a judgment
set aside because of an erroneous ruling carries the burden
of showing that prejudice resulted.” Palmer v. Hoffman,
318 U. S. 109, 116 (1943); see also Tipton v. Socony Mobil
Oil Co., 375 U. S. 34, 36 (1963) (per curiam); United States
v. Borden Co., 347 U. S. 514, 516–517 (1954); cf. McDonough
Power Equipment, Inc. v. Greenwood, 464 U. S. 548, 553
(1984); Market Street R. Co. v. Railroad Comm’n of Cal., 324
U. S. 548, 562 (1945) (finding error harmless “in the absence
of any showing of . . . prejudice”).
Lower court cases make clear that courts have correlated
review of ordinary administrative proceedings to appellate
review of civil cases in this respect. Consequently, the bur
den of showing that an error is harmful normally falls upon
the party attacking the agency’s determination. See, e. g.,
American Airlines, Inc. v. Department of Transp., 202 F. 3d
788, 797 (CA5 2000) (declining to remand where appellant
failed to show that error in administrative proceeding was
harmful); Air Canada v. Department of Transp., 148 F. 3d
1142, 1156–1157 (CADC 1998) (same); Nelson v. Apfel, 131
F. 3d 1228, 1236 (CA7 1997) (same); Bar MK Ranches v. Yuet
ter, 994 F. 2d 735, 740 (CA10 1993) (same); Camden v. Depart
ment of Labor, 831 F. 2d 449, 451 (CA3 1987) (same); Pan
handle Co-op Assn. v. EPA, 771 F. 2d 1149, 1153 (CA8 1985)

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410 SHINSEKI v. SANDERS
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(same); Frankfort v. FERC, 678 F. 2d 699, 708 (CA7 1982)
(same); NLRB v. Seine & Line Fishermen, 374 F. 2d 974, 981
(CA9 1967) (same).
To say that the claimant has the “burden” of showing that
an error was harmful is not to impose a complex system of
“burden shifting” rules or a particularly onerous require
ment. In ordinary civil appeals, for example, the appellant
will point to rulings by the trial judge that the appellant
claims are erroneous, say, a ruling excluding favorable evi
dence. Often the circumstances of the case will make clear
to the appellate judge that the ruling, if erroneous, was
harmful and nothing further need be said. But, if not, then
the party seeking reversal normally must explain why the
erroneous ruling caused harm. If, for example, the party
seeking an affirmance makes a strong argument that the evi
dence on the point was overwhelming regardless, it normally
makes sense to ask the party seeking reversal to provide an
explanation, say, by marshaling the facts and evidence show
ing the contrary. The party seeking to reverse the result
of a civil proceeding will likely be in a position at least as
good as, and often better than, the opposing party to explain
how he has been hurt by an error. Cf. United States v. Fior
D’Italia, Inc., 536 U. S. 238, 256, n. 4 (2002) (Souter, J.,
dissenting).
Respondents urge the creation of a special rule for this
context, placing upon the agency the burden of proving that
a notice error did not cause harm. But we have placed such
a burden on the appellee only when the matter underlying
review was criminal. See, e. g., Kotteakos, supra, at 760.
In criminal cases the Government seeks to deprive an indi
vidual of his liberty, thereby providing a good reason to re
quire the Government to explain why an error should not
upset the trial court’s determination. And the fact that the
Government must prove its case beyond a reasonable doubt
justifies a rule that makes it more difficult for the reviewing
court to find that an error did not affect the outcome of a

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411 Cite as: 556 U. S. 396 (2009)
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case. See United States v. Olano, 507 U. S. 725, 741 (1993)
(stating that the Government bears the “burden of showing
the absence of prejudice”). But in the ordinary civil case
that is not so. See Palmer, supra, at 116.
C
Our discussion above is subject to two important qualifi
cations. First, we need not, and we do not, decide the law
fulness of the use by the Veterans Court of what it called
the “natural effects” of certain kinds of notice errors. We
have previously made clear that courts may sometimes make
empirically based generalizations about what kinds of errors
are likely, as a factual matter, to prove harmful. See Kot
teakos, 328 U. S., at 760–761 (reviewing courts may learn
over time that the “ ‘natural effect’ ” of certain errors is “ ‘to
prejudice a litigant’s substantial rights’ ” (quoting H. R. Rep.
No. 913, 65th Cong., 3d Sess., 1 (1919))). And by drawing
upon “experience” that reveals some such “ ‘natural effect,’ ”
a court might properly influence, though not control, future
determinations. See Kotteakos, supra, at 760–761. We
consider here, however, only the Federal Circuit’s harmless
error framework. That framework, as we have said, is man
datory. And its presumptions are not based upon an effort
to determine “natural effects.”
Indeed, the Federal Circuit is the wrong court to make
such determinations. Statutes limit the Federal Circuit’s
review to certain kinds of Veterans Court errors, namely,
those that concern “the validity of . . . any statute or regula
tion . . . or any interpretation thereof.” 38 U. S. C. § 7292(a).
But the factors that inform a reviewing court’s “harmless
error” determination are various, potentially involving,
among other case-specific factors, an estimation of the likeli
hood that the result would have been different, an awareness
of what body ( jury, lower court, administrative agency) has
the authority to reach that result, a consideration of the er
ror’s likely effects on the perceived fairness, integrity, or

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public reputation of judicial proceedings, and a hesitancy to
generalize too broadly about particular kinds of errors when
the specific factual circumstances in which the error arises
may well make all the difference. See Neder, 527 U. S., at
18–19; Kotteakos, supra, at 761–763; Traynor 33–37.
It is the Veterans Court, not the Federal Circuit, that sees
sufficient case-specific raw material in veterans’ cases to en
able it to make empirically based, nonbinding generalizations
about “natural effects.” And the Veterans Court, which has
exclusive jurisdiction over these cases, is likely better able
than is the Federal Circuit to exercise an informed judgment
as to how often veterans are harmed by which kinds of notice
errors. Cf. United States v. Haggar Apparel Co., 526 U. S.
380, 394 (1999) (Article I court’s special “expertise . . . guides
it in making complex determinations in a specialized area of
the law”).
Second, we recognize that Congress has expressed special
solicitude for the veterans’ cause. See post, at 415–416
(Souter, J., dissenting). A veteran, after all, has performed
an especially important service for the Nation, often at the
risk of his or her own life. And Congress has made clear
that the VA is not an ordinary agency. Rather, the VA has
a statutory duty to help the veteran develop his or her bene
fits claim. See Veterans Claims Assistance Act of 2000, 38
U. S. C. § 5103A. Moreover, the adjudicatory process is not
truly adversarial, and the veteran is often unrepresented
during the claims proceedings. See Walters v. National
Assn. of Radiation Survivors, 473 U. S. 305, 311 (1985).
These facts might lead a reviewing court to consider harmful
in a veteran’s case error that it might consider harmless in
other circumstances. But that is not the question before us.
And we need not here decide whether, or to what extent,
that may be so.
III
We have considered the two cases before us in light of the
principles discussed. In Sanders’ case, the Veterans Court

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found the notice error harmless. And after reviewing the
record, we conclude that finding is lawful. The VA told
Sanders what further evidence would be needed to substan
tiate his claim. It failed to specify what portion of any addi
tional evidence the Secretary would provide (we imagine
none) and what portion Sanders would have to provide (we
imagine all).
How could the VA’s failure to specify this (or any other)
division of labor have mattered? Sanders has pursued his
claim for over six decades; he has had numerous medical ex
aminations; and he should be aware of the respect in which
his benefits claim is deficient (namely, his inability to show
that his disability is connected to his World War II service).
See supra, at 403. Sanders has not told the Veterans Court,
the Federal Circuit, or this Court what specific additional
evidence proper notice would have led him to obtain or seek.
He has not explained to the Veterans Court, to the Federal
Circuit, or to us how the notice error to which he points could
have made any difference. The Veterans Court did not con
sider the harmlessness issue a borderline question. Nor do
we. We consequently reverse the Federal Circuit’s judg
ment and remand the case so that the court can reinstate the
judgment of the Veterans Court.
Simmons’ case is more difficult. The Veterans Court
found that the VA had committed a Type One error, i. e., a
failure to tell Simmons what information or evidence she
must provide to substantiate her claim. The VA sent Sim
mons a letter that provided her only with general informa
tion about how to prove a claim while telling her nothing at
all about how to proceed further in her own case, a case
in which the question was whether a concededly service
connected left-ear hearing problem had deteriorated to the
point where it was compensable. And the VA did so in the
context of having arranged for a further right-ear medical
examination, which (because of lack of notice) Simmons failed
to attend. The Veterans Court took the “natural effect” of

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414 SHINSEKI v. SANDERS
Souter, J., dissenting
a Type One error into account while also reviewing the rec
ord as a whole.
Some features of the record suggest the error was harm
less, for example, the fact that Simmons has long sought ben
efits and has a long history of medical examinations. But
other features—e. g., the fact that her left-ear hearing loss
was concededly service connected and has continuously dete
riorated over time, and the fact that the VA had scheduled
a further examination of her right ear that (had notice been
given) might have revealed further left-ear hearing loss—
suggest the opposite. Given the uncertainties, we believe it
is appropriate to remand this case so that the Veterans Court
can decide whether reconsideration is necessary.
* * *
We conclude that the Federal Circuit’s harmless-error
framework is inconsistent with the statutory requirement
that the Veterans Court take “due account of the rule of
prejudicial error.” 38 U. S. C. § 7261(b)(2). We reverse the
Federal Circuit’s judgment in Sanders’ case, and we vacate
its judgment in Simmons’ case. We remand both cases for
further proceedings consistent with this opinion.
It is so ordered.
Justice Souter, with whom Justice Stevens and Jus
tice Ginsburg join, dissenting.
Federal law requires the Court of Appeals for Veterans
Claims to “take due account of the rule of prejudicial error.”
38 U. S. C. § 7261(b)(2). Under this provision, when the De
partment of Veterans Affairs (VA) fails to notify a veteran
of the information needed to support his benefit claim, as
required by § 5103(a), must the veteran prove the error
harmful, or must the VA prove its error harmless? The
Federal Circuit held that the VA should bear the burden.
Sanders v. Nicholson, 487 F. 3d 881 (2007). The Court re

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Souter, J., dissenting
verses because the Federal Circuit’s approach is “complex,
rigid, and mandatory,” ante, at 407, “imposes an unreason
able evidentiary burden upon the VA,” ante, at 408, and con
tradicts the rule in other civil and administrative cases by
“requir[ing] the VA, not the claimant, to explain why the
error is harmless,” ante, at 409. I respectfully disagree.
Taking the last point first, the Court assumes that there
is a standard allocation of the burden of proving harmless
ness that Congress meant to adopt in directing the Veterans
Court to “take due account of the rule of prejudicial error.”
§ 7261(b)(2). But as both the majority and the Government
concede, “[t]here are no hard-and-fast standards governing
the allocation of the burden of proof in every situation,”
Keyes v. School Dist. No. 1, Denver, 413 U. S. 189, 209 (1973),
and courts impose the burden of dealing with harmlessness
differently in different circumstances. As the Court says,
the burden is on the Government in criminal cases, ante,
at 410, and even in civil and administrative appeals courts
sometimes require the party getting the benefit of the error
to show its harmlessness, depending on the statutory setting
or specific sort of mistake made, see, e. g., McLouth Steel
Prods. Corp. v. Thomas, 838 F. 2d 1317, 1324 (CADC 1988)
(declaring that imposing the burden of proving harm “on
the challenger is normally inappropriate where the agency
has completely failed to comply with” notice and comment
procedures).
Thus, the question is whether placing the burden of per
suasion on the veteran is in order under the statutory
scheme governing the VA. I believe it is not. The VA dif
fers from virtually every other agency in being itself obliged
to help the claimant develop his claim, see, e. g., 38 U. S. C.
§ 5103A, and a number of other provisions and practices of
the VA’s administrative and judicial review process reflect a
congressional policy to favor the veteran, see, e. g., § 5107(b)
(“[T]he Secretary shall give the benefit of the doubt to the
claimant” whenever “there is an approximate balance of posi

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416 SHINSEKI v. SANDERS
Souter, J., dissenting
tive and negative evidence regarding any issue material to
the determination of a matter”); § 7252(a) (allowing the vet
eran, but not the Secretary, to appeal an adverse decision
to the Veterans Court). Given Congress’s understandable
decision to place a thumb on the scale in the veteran’s favor
in the course of administrative and judicial review of VA de
cisions, I would not remove a comparable benefit in the Vet
eran’s Court based on the ambiguous directive of § 7261(b)(2).
And even if there were a question in my mind, I would come
out the same way under our longstanding “rule that inter
pretive doubt is to be resolved in the veteran’s favor.”
Brown v. Gardner, 513 U. S. 115, 118 (1994).
The majority’s other arguments are open to judgment, but
I do not see that placing the burden of showing harm on the
VA goes so far as to create a “complex, rigid, and mandatory”
scheme, ante, at 407, or to impose “an unreasonable eviden
tiary burden upon the VA,” ante, at 408. Under the Federal
Circuit’s rule, the VA simply “must persuade the reviewing
court that the purpose of the notice was not frustrated, e. g.,
by demonstrating: (1) that any defect was cured by actual
knowledge on the part of the claimant, (2) that a reasonable
person could be expected to understand from the notice what
was needed, or (3) that a benefit could not have been
awarded as a matter of law.” Sanders, supra, at 889. This
gives the VA several ways to show that an error was harm
less, and the VA has been able to shoulder the burden in a
number of cases. See, e. g., Holmes v. Peake, No. 06–0852,
2008 WL 974728, *2 (Vet. App., Apr. 3, 2008) (Table) (finding
notice error harmless because the claimant had “actual
knowledge of what was required to substantiate” his claim);
Clark v. Peake, No. 05–2422, 2008 WL 852588, *4 (Vet. App.,
Mar. 24, 2008) (Table) (same).
The Federal Circuit’s rule thus strikes me as workable and
in keeping with the statutory scheme governing veterans’
benefits. It has the added virtue of giving the VA a strong
incentive to comply with its notice obligations, obligations

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Souter, J., dissenting
“that g[o] to the very essence of the nonadversarial, pro
claimant nature of the VA adjudication system . . . by afford
ing a claimant a meaningful opportunity to participate effec
tively in the processing of his or her claim.” Mayfield v.
Nicholson, 19 Vet. App. 103, 120–121 (2005).
I would affirm the Federal Circuit and respectfully dissent.