Duties of Hearing Officer, Citing Bryant and Sizemore

This non-precedential decision is being presented for its citations to Bryant and Sizemore.

In a May 2005 hearing, Mr. Rosa testified that he told his platoon sergeant, Sgt. Robertson, about racial discrimination at the hands of his squad leader. See R. at 247.
A hearing officer has a duty to "suggest the submission of evidence which
the claimant may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R. § 3.103(c)(2) (2010). The Court recently explained that the hearing officer's duty requires him or her to "suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Bryant v. Shinseki, 23 Vet.App. 488, 496-97
(2010); see also Sizemore v. Principi, 18 Vet.App. 264, 274 (2004) (determining that, at a VA hearing, VA "failed to advise the appellant that he could submit
corroboration in the form of 'buddy statements' as to some of the occurrences that he alleged were in-service stressors").
Here, Mr. Rosa's testimony indicated that evidence from Sgt. Robertson
would be advantageous to his claim and was not of record but could be reduced to
writing, yet the hearing officer did not suggest its submission. There is no indication in the transcript of the hearing that the hearing officer responded in any way to Mr. Rosa's statement regarding Sgt. Robertson. Thus, the hearing officer failed to fulfill his duty to suggest the submission of evidence which the claimant may have overlooked and which have been advantageous to his position under 38 C.F.R. § 3.103(c)(2), which is remandable error.
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1563
ANIBAL ROSA, APPELLANT,
v.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
DAVIS, Judge:U.S.ArmyveteranAnibalRosaappealsprosefromaMarch10,2009,Board
of Veterans' Appeals (Board) decision that denied service connection for
post-traumatic stress
disorder (PTSD). Mr. Rosa, who has been diagnosed with PTSD, asserts that
he was the victim of
racial discrimination while stationed in Germany. For the following
reasons, the Court will set aside
the Board's March 2009 decision and remand the issue of service connection
for PTSD for further
development and readjudication.
I. ANALYSIS
Mr. Rosa states in his informal brief that "[g]etting in touch with Sgt.
Robertson would have
helped a lot since he was my witness" to the alleged racial discrimination
that was the stressor event
related to his PTSD. Informal Brief at 1. The Secretary responds that Mr.
Rosa "never mentioned
Sgt. Rober[t]son orrequestedassistancein obtaininginformationfromhim. In
fact, the first mention
of Sgt. Robertson was in Appellant's Informal Brief to the Court."
Secretary's Brief at 8.
Contraryto the Secretary's argument and the Board's finding that "all
necessarydevelopment
has been accomplished" (Record (R.) at 6), Mr. Rosa did identify Sgt.
Robertson during the claims


adjudication process. In a May 2005 hearing, Mr. Rosa testified that he
told his platoon sergeant, Sgt. Robertson, about racial discrimination at the hands of his squad leader. See R. at 247.
A hearing officer has a duty to "suggest the submission of evidence which
the claimant may have overlooked and which would be of advantage to the claimant's position." 38 C.F.R. § 3.103(c)(2) (2010). The Court recently explained that the hearing officer's duty requires him or her to "suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record." Bryant v. Shinseki, 23 Vet.App. 488, 496-97
(2010); see also Sizemore v. Principi, 18 Vet.App. 264, 274 (2004) (determining that, at a VA hearing, VA "failed to advise the appellant that he could submit
corroboration in the form of 'buddy statements' as to some of the occurrences that he alleged were in-service stressors").
Here, Mr. Rosa's testimony indicated that evidence from Sgt. Robertson
would be advantageous to his claim and was not of record but could be reduced to
writing, yet the hearing officer did not suggest its submission. There is no indication in the transcript of the hearing that the hearing officer responded in any way to Mr. Rosa's statement regarding Sgt. Robertson. Thus, the hearing officer failed to fulfill his duty to suggest the submission of evidence which the claimant may have overlooked and which have been advantageous to his position under 38 C.F.R. § 3.103(c)(2), which is remandable error.
On remand, VA is instructed to assist Mr. Rosa in obtaining the
information necessary to
substantiate his claim–specifically, in locating and contacting Sgt.
Robertson and requesting
information regarding the alleged incident of racial discrimination. See
38 U.S.C. § 5103A
(outlining the Secretary's duties to assist a claimant in developing his
or her claim). Mr. Rosa will
be free to submit additional evidence and argument in support of his claim,
and the Board is required
to consider any such evidence and argument. See Kay v. Principi, 16 Vet.
App. 529, 534 (2002). A
final decision by the Board following the remand herein ordered will
constitute a new decision that,
if adverse, may be appealed to this Court on the filing of a new Notice of
Appeal with the Court not
later than 120 days after the date on which notice of the Board's new
final decision is mailed to Mr.
Rosa. See Marsh v. West, 11 Vet.App. 468, 472 (1998).
2


II. CONCLUSION
Based on the foregoing analysis, the Court SETS ASIDE the Board's March 10,
2009, decision and REMANDS the issue of service connection for PTSD for further
development and readjudication.
DATED: September 14, 2010
Copies to:
Anibal Rosa
VA General Counsel (027)
3