Board Can't Consider New Legal theories, Hickson v. Shinseki, No. 07-1311

Judge Lance's Dissent, Bryant v. Shinseki, No. 08-4080
the Court has recently held that the Secretary's regulations prevent the Board from considering new legal theories in the first instance. Hickson v. Shinseki, 23 Vet.App. 394, 400-03 (2010). Thus, even if the Board later determines that the RO decision overlooked an issue, the claimant must receive notice of the issue and the opportunity to have it remanded to the RO. Id.

===============================
=======================================
B. One Review on Appeal
Under 38 U.S.C. § 7104(a), all decisions bythe Secretary, including
claims to reopen, "shall
be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a) ("All questions in a matter which . . . is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary."); 38 C.F.R. § 20.101(a) (2009). By statute, final decisions on such appeals are made by the Board. 38 U.S.C. § 7104. In providing a thorough discussion of the administrative appellate process within VA, the Federal Circuit, in DAV, observed that the Board is "
primarily an appellate tribunal" within the VA appellate system, and as such, under section 7104
acts on behalf of the Secretary in making the ultimate decision on claims and provides "one
review on appeal to the Secretary" of a question subject to decision by the Secretary under 38 U.S.
C. § 511. 38 U.S.C. § 7104. Thus, the Federal Circuit held that a proposed amendment to VA regulation 38 C.F.R. § 19.9 that would allow the Board to consider additional evidence without having to remand the case to the RO for initial consideration and without having to obtain the appellant's waiver was invalid
6


and contrary to the section 7104 requirement that preserves and affords " one review on appeal." DAV, 327 F.3d at 1346.
1. Board's Consideration of New Evidence Not Considered by the RO
When the Board reopens a claim after the RO has denied reopening that same claim, the matter generally must be returned to the RO for consideration of the merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by section 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a
waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Bernard, 4 Vet.App. at 390; see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (stating that, in new and material evidence cases, the Board's jurisdiction does not vary "according to how the [RO] ruled").
=========================================

Mr. Hickson fails to assert that the Board erred in its determination that he was provided an adequate VA psychiatric examination in March 2004, which considered his contentions, nor does he suggest any errors in that examination. See Hilkert, supra.
========================================
38 C.F.R. § 20.903(b) ("No notice is required under this paragraph if . . . the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.").
=================================================
§ 20.903 states:
If . . . the Board intends to consider law not already considered by the [AOJ] and such consideration could result in denial of the appeal, the Board will notify the appellant and his or her representative, if any, of its intent to do so and that
such consideration in the first instance by the Board could result in denial of the appeal.
The notice from the Board will contain a copy or summary of the law to be considered. A
period of 60 days from the date the Board furnishes the notice will be allowed for
response, which may include the submission of relevant evidence or argument. The date the Board furnishes the notice will be presumed to be the same as the date of the letter that accompanies the notice for purposes of determining whether a response
was timely filed. No notice is required under this paragraph if the Board intends to grant the benefit being sought or if the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.
38 C.F.R. § 20.903(b) (2009).4
============================================


----------------------------------------------------


UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 07-1311
ARTHUR HICKSON, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Argued September 29, 2009
Decided March 31, 2010 )
Kenneth M. Carpenter, of Topeka, Kansas, for the appellant.
Gayle Strommen, with whom Will A. Gunn, General Counsel; and R. Randall Campbell, Assistant General Counsel, all of Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, KASOLD and DAVIS, Judges.
GREENE, Chief Judge: Veteran Arthur Hickson appeals, through counsel, a February 5, 2007, Board of Veterans' Appeals (Board) decision that determined there was new and material evidence to reopen his previously denied Department of Veterans Affairs (VA) service-connection claim for an acquired psychiatric disorder and denied the claim on the merits. Record (R.) at 1-29.
Because prior to the Board decision a VA regional office (RO) de facto reopened Mr. Hickson's claim and denied it on the merits, and because Mr. Hickson has otherwise failed to demonstrate that the Board contravened 38 C.F.R. § 20.903(b), which provides that the
Board will notifyan appellant of its intent to consider law not already considered by the agency of original jurisdiction [AOJ] where such consideration could result in denial of the appeal, the
February2007 Board decision will be affirmed.

I. BACKGROUND


Mr. Hickson served in the U.S. Air Force from July 1968 to February 1969.
In May 1981, he claimed VA service-connection benefits for a nervous condition, which
was construed as a claim for benefits for a psychiatric disorder. The RO denied the claim in June
1981. Mr. Previous HitHicksonNext Hit appealed to the Board, and in September 1982, the Board denied his claim after finding that his service medical records showed that he had no evidence of a chronic psychiatric abnormality such as a psychosis or neurosis. The Board also found that his only postservice diagnosis was that of a personality disorder, which by VA regulation was a developmental defect and not a disability for which service connection could be granted. See 38 C.F.R. § 3.303(c) (2009) (A personality disorder is not considered a disease or injury for VA-benefits purposes). That decision became final.
In February 1999, Mr. Previous HitHicksonNext Hit sought to reopen his disallowed claim. In
August 1999, the RO determined that new and material evidence had not been submitted to
reopen that claim. R. at 423-28. Although not required to by law,1
Mr. Previous HitHicksonNext Hit was provided a March 2004 VA medical
examination and the claim otherwise was developed. R. at 884. In November
2004, the RO decided that the evidence submitted by Mr. Previous HitHicksonNext Hit and developed after the June 1981 denial of his claim did not warrant reopening his claim because none of it showed that Mr. Hickson had incurred a psychiatric disorder in service or developed a psychosis to a compensable degree within one year of his discharge from service. R. at 910. Mr. Hickson appealed. The matter was remanded by the Board in April 2006. R. at 962. In June 2006, Mr. Previous HitHicksonNext Hit submitted to the RO three affidavits one
signed by him, by his mother, and by his sister, that asserted that he had
difficulties during and immediately following his military service. Along with submitting the
affidavits, Mr. Hickson's counsel, who has represented Mr. Previous HitHicksonNext Hit since February 2001, requested remand for the RO to consider the affidavits and schedule another medical examination. R. at 935. In a July 2006 Supplemental Statement of the Case (SSOC), the RO found that these statements were contradicted by the medical evidence of record, that the affidavits were not credible, that there was no basis for providing Mr. Hickson with another VA medical examination, and that new and material evidence
1
The Court notes that in 1999, the Secretary had no duty to assist the
claimant until the claim was well grounded. See Epps v. Gober, 126 F.3d 1464, 1469 (Fed. Cir. 1997).
Although the Veterans Claims Assistance Act of 2000 eliminated the well-grounded claim requirement, see Bernklau v. Principi, 291 F.3d 795, 803 (Fed. Cir. 2002), the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) subsequently held that the Secretary does not have a duty to assist the claimant by providing a medical examination until the claim is reopened, see Paralyzed Veterans of Am. v. Sec'y of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003).
2


had not been submitted to reopen Mr. Hickson's previouslydisallowed claim
for service connection.
During his subsequent appeal to the Board, in September 2006, Mr. Previous HitHicksonNext Hit,
through the same counsel, submitted the following statement to the RO: "The veteran
waives any further time period and requests that the claims file be immediately transferred to the [
Board] for de novo review." R. at 996. He also attached additional arguments in support of
the appeal, including an argument that, pursuant to Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.
2004),2
he was entitled to the presumption of service connection under 38 U.S.C. §§ 105(a) and 1112
and therefore he was entitled to a VA medical examination to demonstrate that his current
disability was related to the symptoms described in the affidavits he submitted in June 2006. R. at 1000.
In January 2007, Mr. Hickson, through that same counsel, who continues as his counsel before
the Court, submitted to the Board a statement that said: "I request that the Board proceed with review of [Mr. Hickson's] appeal based on all the evidence of record, and issue a favorable decision
granting benefits as soon as possible." R. at 1009.
On appeal, the Board determined that Mr. Hickson's evidence, the three June 2006 affidavits,
were new and material and reopened his claim. Upon reviewing the matter,
the Board observed:
The veteran himself and his counsel have not contended that de novo review
by the
RO is necessary in this case. Indeed, in his September 7, 2006[,]
submission to the
Board the veteran's attorneyurged the Board to grant the claim based upon
an alleged
"presumption of service connection" (emphasis as in original letter). It
is clear
from argument submitted bythe attorneythat the veteran expects the Board
to render
a decision on the merits. A September 7, 2006[,] letter from the veteran's
attorney
stated "The veteran . . . requests that the claims file be transferred to
the Board of
Veterans' Appeals for de novo review (emphasis added by the Board).
R. at 15-16. The Board considered Mr. Hickson's September 2006 statement
through counsel to be
an apparent waiver of consideration bythe RO of the merits of the claim.
The Board then found that
In Shedden, the Federal Circuit held that the term "service-connected" as
defined in 38 U.S.C. § 101(16) is
synonymous with the term "incurred in the line of duty," and therefore, "
that section 105(a) creates a presumption of
service connection, . . . that a disability first manifested or aggravated
during active duty is deemed to be service
connected, unless such injury or disease was a result of the person[']s
own willful misconduct or abuse of alcohol or
drugs." 381 F.3d at 1166. The presumption to which the Federal Circuit
refers is a presumption that an injury or disease
that was incurred in the line of duty constitutes an in-service incurrence
of an injury or disease for purposes of
establishing the second service-connection element (in-service incurrence
of an injury or disease). Id.; see Conley v.
Peake, 543 F.3d 1301 (Fed. Cir. 2008) (holding that the section 105(a)
presumption only satisfies the in-service
incurrence or aggravation of a disease or injury element for service
connection).
2
3


because (1) Mr. Hickson had been provided adequate notice concerning what
was required to substantiate his claim and an opportunity for a hearing, (2) there was no
indication that there were any outstanding records of medical treatment, and (3) Mr. Hickson had been provided an adequate medical examination, he had "presented allavailableexistingevidenceand
argument as to themerits of the claim, . . . [and he would] not be prejudiced by [the Board's]
consideration of this issue on its merits." R. at 16. With these findings, the Board determined that it would not be prejudicial to Mr. Hickson to proceed to adjudicate the merits of his reopened claim without first remanding the matter to the RO for initial consideration.
After adjudicating the claim, the Board found that Mr. Hickson's psychiatric disorder was not
service connected and denied the claim. The Board determined that Mr.
Hickson's previously
considered assertions of psychiatric symptoms within the year following
his service were not credible and thus did not establish that he had a psychosis in or
resulting from service. R. 20-26.
Consequently, the Board found that the additional affidavits by Mr.
Hickson's mother and sister, based on Mr. Hickson's own assertions that lacked credibility, were
incompetent and insufficient to establish in-service incurrence of a psychiatric disability, thereby
failing to demonstrate a medical nexus between Mr. Hickson's service and his currently diagnosed condition.
This appeal followed.
II. ARGUMENTS
Initially, Mr. Previous HitHicksonNext Hit argued that the Board lacked subject-matter
jurisdiction to adjudicate
his reopened service-connection claim on the merits. He maintained that
this Court's decision in Bernard v. Brown, 4 Vet.App. 384 (1993), was inconsistent with, and
consequently overruled by, Federal Circuit decisionin DisabledAm. Veterans (DAV)v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). On August 24, 2009, Mr. Previous HitHicksonNext Hit moved to withdraw this original argument that he presented in his initial brief regarding the status of Bernard based on the Federal Circuit's decision in Sims v. Shinseki, 578 F.3d 1332 (Fed. Cir. 2009), and sought to rely solely on the supplemental argument he submitted in response to our March 2009 order for supplemental briefing
4


concerning 38 C.F.R. § 20.903.3
At oral argument he conceded that Sims addressed the validity of Bernard and that the Board has jurisdiction to reopen and then adjudicate a claim on the merits.
Acknowledging that this case does not present a jurisdictional issue, Mr. Hickson argues that
the Board nevertheless erred in proceeding to consider the merits of his claim when the RO had not done so. In support of his argument, he contends that, without giving him notice as required by
38 C.F.R. § 20.903, the Board considered law not already considered by the RO, and, alternatively,
that the Board should not have applied the law to the merits of his claim when the RO had not yet
done so.
The Secretary contends that, because the Board did not apply law not considered by the RO
and because Mr. Hickson specifically argued the merits of his claim before the Board, there was no
violation of § 20.903. The Secretaryfurther maintained that the sole purpose of § 20.903 is to ensure
that a claimant is not prejudiced when the Board intends to consider law that was not already
considered by the RO and that, because the Board specifically considered
and thoroughly analyzed any possible prejudice to Mr. Hickson's procedural rights, the purpose of §
20.903 was satisfied.
III. LAW AND ANALYSIS
A. Reopening a Claim
A claim that has been finally denied can be reopened if new and material
evidence is presented or secured. 38 U.S.C. § 5108. Reopening a claim will result in
a new decision on the matter. Id. "New and material evidence" is defined as the following:
New evidence means existing evidence not previously submitted to agency
decisionmakers. Material evidence means existing evidence that, by itself
or when considered with previous evidence of record, relates to an unestablished
fact necessary to substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at the time of the last
prior final denial of the claim sought to be reopened, and must raise a reasonable
possibility of substantiating the claim.
3
In March 2009, this appeal was stayed pending the resolution of Treece v.
Shinseki, No. 07-0388, a case in
which this Court was considering the application of 38 C.F.R. § 20.903.
Treece , however, was resolved by joint motion for remand. Consequently, the parties in this case were ordered to address the application of § 20.903 to the facts of their case.
5


38 C.F.R. § 3.156(a) (2009); see Hodge v. West, 155 F.3d 1356, 1359 (Fed.
Cir. 1998). When deciding materiality, the Secretary "is precluded from considering the
credibility of the newly submitted evidence; strictly for the purpose of determining whether new
and material evidence has been presented, the Board must presume that the newly submitted evidence is credible." Duran v. Brown, 7 Vet.App. 216, 220 (1994) (citing Justus v. Principi, 3 Vet.App. 510, 513 (1992)).
However, the Secretary is not required "to consider the patently incredible to be credible." Id.; see
King v. Brown, 5 Vet.App. 19, 21 (1993) (citing Espiritu v. Derwinski, 2 Vet.App. 492 (1992))
(noting that Board must not assume credibility of evidence "when the evidentiary assertion is
inherently incredible or when the fact asserted is beyond the competence of the person making the
assertion"). Moreover, unless the claim is reopened, the Secretary is not required to provide a
medical examination or opinion. See Paralyzed Veterans of Am. v. Sec’y
of Veterans Affairs, 345 F.3d 1334, 1342-43 (Fed. Cir. 2003). Additionally, the Board must
include in its decision a written statement of the reasons orbases for its findings and conclusions
on all material issues of fact and law presented on the record; that statement must be adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to
facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).
B. One Review on Appeal
Under 38 U.S.C. § 7104(a), all decisions bythe Secretary, including
claims to reopen, "shall
be subject to one review on appeal to the Secretary." 38 U.S.C. § 7104(a
) ("All questions in a matter
which . . . is subject to decision by the Secretary shall be subject to
one review on appeal to the Secretary."); 38 C.F.R. § 20.101(a) (2009). By statute, final decisions
on such appeals are made by the Board. 38 U.S.C. § 7104. In providing a thorough discussion of the
administrative appellate process within VA, the Federal Circuit, in DAV, observed that the Board is "
primarily an appellate tribunal" within the VA appellate system, and as such, under section 7104
acts on behalf of the Secretary in making the ultimate decision on claims and provides "one
review on appeal to the Secretary" of a question subject to decision by the Secretary under 38 U.S.
C. § 511. 38 U.S.C. § 7104. Thus, the Federal Circuit held that a proposed amendment to VA
regulation 38 C.F.R. § 19.9 that would allow the Board to consider additional evidence without
having to remand the case to the RO for initial consideration and without having to obtain the
appellant's waiver was invalid
6


and contrary to the section 7104 requirement that preserves and affords " one review on appeal." DAV, 327 F.3d at 1346.
1. Board's Consideration of New Evidence Not Considered by the RO
When the Board reopens a claim after the RO has denied reopening that same
claim, the matter generally must be returned to the RO for consideration of the
merits. This is because the RO should, in the first instance, consider that new evidence and decide the matter so as to preserve for that claimant the one review on appeal as provided by section 7104. The Board, however, may proceed to decide the merits of the claim if the Board first secures a
waiver from a claimant or the Board determines that the claimant would not be prejudiced by proceeding to a decision on the merits. Bernard, 4 Vet.App. at 390; see Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996) (stating that, in new and material evidence cases, the Board's
jurisdiction does not vary "according to how the [RO] ruled").
2. Board's Consideration of Law Not Considered by the RO
After the Federal Circuit's decision in DAV, the Secretary revised § 19.9
as well as 38 C.F.R. § 20.903. See 68 Fed. Reg. 69,062 (Dec. 11, 2003); 69 Fed. Reg. 53,807 (
Sept. 4, 2004). Amended
§ 20.903 states:
If . . . the Board intends to consider law not already considered by the [AOJ] and such consideration could result in denial of the appeal, the Board will notify the appellant and his or her representative, if any, of its intent to do so and that such consideration in the first instance by the Board could result in denial of the appeal.
The notice from the Board will contain a copy or summary of the law to be considered. A
period of 60 days from the date the Board furnishes the notice will be allowed for
response, which may include the submission of relevant evidence or argument. The
date the Board furnishes the notice will be presumed to be the same as the date of
the letter that accompanies the notice for purposes of determining whether a response
was timely filed. No notice is required under this paragraph if the Board
intends to grant the benefit being sought or if the appellant or the appellant's
representative has advanced or otherwise argued the applicability of the law in question.
38 C.F.R. § 20.903(b) (2009).4
As previously noted, Mr. Hickson argues that the Board violated this regulation when it proceeded to decide his claim on the merits.
The amended § 20.903 took effect on October 4, 2004, was in effect at the time of Mr. Hickson's appeal to the Board, and remains unchanged.
4
7


The Secretary argues that this provision applies only to new statutes,
regulations, or caselaw that were not in effect at the time of the AOJ decision. Although the
Secretary may establish the meaning of a regulation by presenting independent authority for his
position or demonstrating that his position is an accepted interpretation and practice, see Martin v.
Occupational Safety and Health Review Comm'n, 499 U.S. 144, 151 (1991), he does not attempt to do so here.
Rather, he maintains that the plain language of the regulation necessitates that it must be
interpreted as only applying to law promulgated between the time of the AOJ decision and the Board
decision.
We review interpretations of VA regulations de novo. See38 U.S.C. § 7261 ( Court interprets statutory and regulatory provisions); Lane v. Principi, 339 F.3d 1331,1339 (
Fed. Cir. 2003) ("[I]nterpretation of a statute or regulation is a question of law
. . . ."); Butts v. Brown, 5 Vet.App. 532, 539 (1993) (en banc) (Court reviews "questions of law de novo without any deference to the Board's conclusions of law").
Litigation positions arenot entitled to judicial deference when they are merely counsel's "post hoc rationalizations" for agency action and are advanced for the first time on appeal. See Martin,
499 U.S. at 156. However, when" regulationsleavethepertinentinquiryunresolved, deference must
be afforded to the [Secretary's] interpretation as long as that
interpretation is not 'plainly erroneous or inconsistent with the regulations.'" Smith v. Nicholson, 451 F.3d 1344,1394 (Fed. Cir. 2006); see also Auer v. Robbins, 519 U.S. 452, 463 (1997). The Secretary, however, has not provided anything to the Court that demonstrates that this interpretation reflects VA's " fair and considered judgment on the matter in question." Id. at 462. Indeed, contrary to the Secretary's assertion, nothing in the plain language of the regulation, nor the documents published in conjunction with the notice and comment period after which the regulation was promulgated, supports the Secretary's narrow interpretation.
Furthermore, the language of the regulation itself contradicts such an interpretation. The regulation concerns situations where "the Board intends to consider law not already considered by the [AOJ]." 38 C.F.R. § 20.903(b) (emphasis added). The use of the phrase "not already considered" suggests that the law existed at the time the AOJ made its decision but was simply not considered. Accordingly, the Secretary's interpretation – that the Board could, in the first instance, and without giving notice to a claimant, consider applicable general law to deny a claim – amounts
8


to a rewrite of his regulation. He may wish to undertake such action, but
this is not the forum to do so. See Administrative Procedure Act, 5 U.S.C. § 553.

C. Application to Mr. Hickson's Case
Despite our conclusion that the Secretary's argument regarding a narrow
interpretation of § 20.903 is inconsistent with the plain wording of the regulation, Mr.
Hickson's argument that the Board considered law not already considered by the RO in violation of that regulation nevertheless is not supported by the record.
1. Law Not Already Considered by the RO Mr. Hickson argues that simply because the RO did not explicitly note a law in its decision, that law must not have been considered. We reject that argument. There is no requirement that the RO list every law it considered when rendering its decision. 38 U.S.C. § 5104(b) ("In any case where the Secretary denies a benefit sought, the notice required by subsection (a) shall also include (1) a statement of the reasons for the decision, and (2) a summary of the evidence considered by the Secretary."). Moreover, the RO is presumed to have considered all applicable law, absent some showing that it did not. See Jennings v. Mansfield, 509 F.3d 1362, 1367 (Fed. Cir. 2007) (holding that the Board can assume that the Secretary applied correct legal standards, absent clear evidence to the contrary); see also Dolan v. Brown, 9 Vet.App. 358, 362 (1996) ( concluding that VA has duty to consider any presumption that may be applicable to veteran's claim and, in absence of "clear evidence" to contrary, is presumed to have done so). Further, Mr. Hickson does not identify any law that we conclude the Board considered that had not been considered by the RO. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that appellant bears burden of demonstrating error on appeal).
Specifically, contrary to Mr. Hickson's assertion that the Board considered 38 U.S.C. §§ 1101, 1110, 1112, and 1113 and that the RO did not note these statutes as being considered, the RO explicitly noted them in its July 2006 SSOC. R. at 990. Similarly, contrary to Mr. Hickson's argument that the Board considered 38 C.F.R. §§ 3.303, 3.306, and 3.309, and the RO did not list these regulations as having been considered, the Board never cited 38 C.F.R. § 3.306, and the RO cited §§ 3.303, 3.309 in its SSOC. R. at 991. And, contrary to Mr. Hickson's assertion that the Board considered a list of cases that the RO did not, several of those cases were either (1) cited by
9


the RO in its SSOC, to wit: Suttmann v. Brown, 5 Vet.App. 127 (1993) (see R. at 980), Savage v. Gober, 10 Vet.App. 488 (1997) (see R. at 991), Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (see R. at 992), Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997) (see R. at 992), or (2) submitted to the Board by Mr. Hickson's counsel, to wit, Cartright v. Derwinski, 2 Vet.App. 24 (1991) (see R. at 1014-15), and Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004) (see R. at 1015).
See 38 C.F.R. § 20.903(b) ("No notice is required under this paragraph if . . . the appellant or the appellant's representative has advanced or otherwise argued the applicability of the law in question.").
Mr. Hickson also lists a host of caselaw that he claims the Board cited
and relied upon that
was not considered by the RO. However, he fails to recognize that the
following legal principles
addressed in these cases were each addressed in the preparation of the SSOC, which is prepared before the matter is formally appealed to the Board, affirmatively evidencing consideration by the RO of the legal principles for which these cases stand. Compare R. at 984-93 (July 2006 SSOC) with Mayfield v. Nicholson, 20 Vet.App. 537 (2006) (the Secretary is not required to provide particularized notice regarding the evidence necessary to correct specific inadequacies in a claimant's file per 38 U.S.C. § 5103(a)); Locklear v. Nicholson, 20 Vet.App. 410,
416 (2006) (same); Alemany v. Brown, 9 Vet.App. 518, 519 (1996) (claimant must only
demonstrate that there is an approximate balance of positive and negative evidence in order to prevail); Winn v. Brown, 8 Vet.App. 510, 516 (1996) (personality disorders and mental retardation
are deemed to be congenital or developmental abnormalities and are not considered to be
disabilities for the purposes of service connection); Libertine v. Brown, 9 Vet.App. 521, 523 (1996) (
speculative, general, or inconclusivemedical opinions havelittleprobativevalue);Beausoleil v. Brown,
8Vet.App.459,463
(1996) (same); Cosman v. Principi, 3 Vet.App. 303, 305 (1992) (service
connection may be granted
for disability shown after service when the evidence showed it was
incurred in service); Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992) (laypersons are not
generally competent to opine on medical matters such as the date of onset of a claimed disability and the relationship of specific symptoms to a particular diagnosis); Gobber v. Derwinski, 2 Vet.App. 470, 472 (1992) (VA medical examinations are not required if there is already competent evidence in the file).
Similarly, Mr. Hickson contends that the Board relied upon other caselaw that had not been considered by the RO, to wit: Kowalski v. Nicholson, 19 Vet.App. 171, 179 (2005) (medical opinion
10


based on claimant's own statements may not be rejected out of hand); Wensch v. Principi, 15 Vet.App. 362, 367 (2001) (the Board may favor the opinion of one competent medical authority over another); LeShore v. Brown, 8 Vet.App. 406, 409 (1995) (evidence recorded by a medical examiner, unenhanced by any medical comment, does not constitute competent medical evidence); Owens v. Brown, 7 Vet.App. 429, 433 (1995) (cited for the same principle as that in Wensch, supra); Swann v. Brown, 5 Vet.App. 229, 233 (1993) (a medical opinion based upon an unsubstantiated account is of no probative value, and does not serve to verify the
occurrences described); Obert v. Brown, 5 Vet.App. 30 (1993) (adjudicator may not substitute its opinion for medical opinions in the record); Guerrieri v. Brown, 4 Vet.App. 467, 470-71 (1993) (probative value of medical opinion comes from medical expert's personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches). However, Mr. Hickson fails to observe that the legal principles addressed in these cases concern the weight and probative value to be assigned evidence, and that the RO, as discussed below, actually developed the claim and weighed the evidence, again evidencing its consideration of the law.
Additionally, Mr. Hickson asserts that the Board cited and relied upon Meyer v. Brown, 9 Vet.App. 425 (1996) (Board required to analyze evidence and provide reasons or bases for its decision); Eddy v. Brown, 9 Vet.App. 52 (1996) (same); Gabrielson v. Brown, 7 Vet.App. 36 (1994) (same); and Bernard, 4 Vet.App. at 394 (Board may, in some instances, decide matters that were not previously decided by the RO), and that the RO did not cite to them. But again, Mr. Hickson does not recognize that the legal principles addressed in these cases are that the Board is obligated under 38 U.S.C. § 7104(d) to provide an adequate statement of reasons or bases, and that the Board may, in some instances, decide matters that were not previously decided by the RO. It is self-evident that
§ 20.903(b) would not apply to situations in which the Board considers quintessential law applicable
to its own adjudication, and irrelevant to the RO's decision. To read § 20.903(b) as precluding
consideration by the Board of law applicable to its adjudication and not applicable to the RO's
adjudication would mean that the Secretary would have to give 60 days notice to the claimant in
every appeal that the Board would perform its duty in accordance with applicable law, unless the
Board granted the claim in full or the appellant waived such notice. If the Secretary desired this
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result, he could have written his regulation to require such notice; but, he did not, and we see no
basis for requiring such an outcome.
In sum, Mr. Hickson's argument based on his litany of statutes, regulations, and case law that purportedly were not cited by the RO fails to demonstrate that the Board violated § 20.903(b) by improperlyconsidering law that the RO failed to consider without first notifying him and giving him an opportunity to respond. See Jennings, Dolan, and Hilkert, all supra.

2. Law Applied to the Merits
When informed at oral argument that 38 U.S.C. §§ 1101, 1110, 1112, and
1113, had been
cited to and relied upon by the RO in its 2006 SSOC, Mr. Previous HitHicksonNext Hit argued
that these statutes
nevertheless were considered by the Board in the context of a reopened
claim, which he argues
necessarilyviolates § 20.903(b). Aswepreviouslynoted,supraatIII(B)(1),
when the Board reopens
a claim after the RO has denied reopening, the Board generally should
remand the claim to the RO
to consider the evidence and render a new decision. This is because the RO
generallydoes not assess
the credibility of the evidence or determine the need for a medical
examination or opinion when
reopening is denied. See Justus and Paralyzed Veterans of Am., both supra.
Thus, if the Board
initially reopens a claim when the RO has not considered the need for a
medical examination or
opinion, or assessed the credibility of the evidence, the Board would be
considering law that the RO
had not already considered, possibly implicating § 20.903(b). And, in the
absence of waiver by the
claimant or a Board finding that the claimant would not be prejudiced by
the Board adjudicating the
matter in the first instance, by going forward, the Board would violate
the "one review on appeal,"
statutory requirement. DAV and Bernard, both supra.
In this instance, however, the RO developed the evidence over a seven-year
period between
the date Mr. Previous HitHicksonNext Hit filed his claim to reopen in 1998 and the date of the
SSOC that issued in 2006.
The Board also found that the duties to notify and assist had been
satisfied, including not only
obtaining records, which is part of every claim to reopen, but also
providing Mr. Previous HitHicksonNext Hit a medical
examination, which is not required until and unless a claim is reopened.
See Paralyzed Veterans of
Am., 345 F.3d at 1342-43. More significantly, all of the evidence in the
record before the Board
reveals that upon receipt of Mr. Hickson's new evidence, the RO in fact
considered that evidence,
assessed its credibility, and, after doing so, determined that not only
was the evidence not credible
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but also that it did not trigger a need for any additional medical
examinations. These are
determinations that should be made only after a claim has been reopened.
Indeed, the RO weighed
the totality of the evidence before reaching a conclusion that Mr.
Hickson's claim would be denied.
Because the RO de facto reopened the claim, which thus means that, under
these circumstances, the
Board's application of the law to the merits was the second such
application, the Board's review of
the claim actually constituted the "one review on appeal." Paralyzed
Veterans of Am., supra. Based
on the record on appeal, we have the firm conviction that the Board's
conclusory statement that the
RO had not considered Mr. Hickson's claim is clearly erroneous. Gilbert, 1
Vet.App. at 52 ('"A
finding is "clearly erroneous" when although there is evidence to support
it, the reviewing court on
the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'"
(quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948))).
Under these circumstances,
the Board's application of the law to the merits was the second such
application, and the Board's
review of the claim actually constituted "one review on appeal." Id.
Accordingly, we hold that
38 C.F.R. § 20.903(b) was not violated in this instance.
D. Section 5103A Duty To Provide an Adequate Medical Examination
At oral argument, Mr. Previous HitHicksonNext Hit argued for the first time that once the
Board reopened his
claim, he was entitled to a VA medical examination. Under section 5103A,
the Secretary is
obligated, in appropriate cases, to conduct a thorough and contemporaneous
medical examination
or obtain a medical opinion. 38 U.S.C. § 5103A(d)(2); McLendon v.
Nicholson, 20 Vet.App.79, 81
(2006); Green v. Derwinski, 1 Vet.App.121, 124(1991). "[O]
ncetheSecretaryundertakestheeffort
to provide an examination when developing a service-connection claim, even
if not statutorily
obligated to do so, he must provide an adequate one." Barr v. Nicholson,
21 Vet.App. 303, 311
(2007).
Mr. Previous HitHicksonNext Hit argues only that, once his claim was reopened, he was entitled
to a new VA
medical examination so that a medical examiner could consider the
affidavits he submitted. Here,
the Board specifically found that the Secretary's section 5103A duty to
assist was fulfilled by a
"contemporaneous and thorough medical examination in March 2004," in a VA
psychiatric
examination. R. at 17-18. The Board also found that Mr. Hickson's
affidavits were "merely
reiterative of contentions made to the March 2004 VA examiner, which that
examiner took into
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consideration in rendering his opinion." R. at 18. Mr. Hickson fails to assert that the Board erred in its determination that he was provided an adequate VA psychiatric examination in March 2004, which considered his contentions, nor does he suggest any errors in that examination. See Hilkert, supra.
Furthermore, the Board specifically determined that the statements Mr. Hickson submitted
were not credible. R. at 22. Again, Mr. Previous HitHicksonNext Hit does not challenge the
Board's conclusion.
Information that is not credible is not a basis for ordering another
medical examination. See Washington v. Nicholson, 19 Vet.App. 362, 367-68 (2005) (holding that the
Board has the duty to determine the credibility and probative weight of the evidence); Reonal v.
Brown, 5 Vet.App. 458, 461 (1993) (holding that a medical opinion based upon an inaccurate
factual premise has no probative value); Smith v. Derwinski, 1 Vet.App. 235, 237 (1991) ("
Credibility is determined by the fact finder."). The Board provided an adequate statement of reasons or bases for its conclusion that the statements were not credible and that determination is not clearly
erroneous. See Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) (stating that Board's assessment of
credibility and weight to be given to evidence is finding of fact subject to "clearly erroneous"
standard of review).
Accordingly, because the statements submitted by Mr. Hickson were both redundant of his statements to the March 2004 VA examiner and those statements were found not to be credible, the Board did not err in not providing Mr. Hickson with an additional medical examination upon reopening his claim. See McLendon, supra.
E. Prejudice
Although we conclude that § 20.903 was not violated in this instance, we
feel compelled to address Mr. Hickson's contention at oral argument that he otherwise was
prejudiced by the Board deciding his claim on the merits because he would have obtained a private
medical examination had he known the Board would deny him another VA medical examination. This
argument is disingenuous at best. Mr. Previous HitHicksonNext Hit was provided a VA medical examination by the RO and denied an additional one. He was also offered an opportunity to submit his own medical evidence. He waived, through counsel, further review by the RO on this issue and argued before the Board that he should be provided another medical examination. Mr. Hickson may not agree with the Board's decision, but the record reflects that he was provided a meaningful opportunity to present his
14


argument. He thus fails to demonstrate any prejudice by the Board proceeding to address the duty to assist (and deny another VA medical examination) and deciding his claim on the merits. See Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary "[i]n
the absence of demonstrated prejudice"); see also Mlechick v. Mansfield, 503 F.3d 1340,
1346 (Fed. Cir. 2007) (Court must review the record to take due account of the rule of
prejudicial error).
Moreover, before proceeding to decide the merits of Mr. Hickson's claim,
the Board considered Mr. Hickson's waiverof anyfurtherreview bythe RO and
ultimately determined that Mr. Hickson would not be prejudiced by the Board rendering its decision because,inter
alia, Mr. Hickson "had presented all available existing evidence and argument as to the
merits of the claim." R. at 16.
The Court reviews any Board finding of no prejudice de novo. Medrano v.
Nicholson, 21 Vet.App. 165, 171 (2007). Because the RO developed Mr. Hickson's claim, including
providing him an adequate VA medical examination and as sessing the credibility of the evidence,
we find no prejudice in the Board proceeding to decide the claim on the merits.
IV. CONCLUSION
Accordingly, upon consideration of the foregoing, the February 5, 2007, decision of the Board is AFFIRMED.
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