Application of Bryant as Impacted by Receipt of Notice, CFR 3.103, Single Judge Decision

Application of Bryant, we found the following statements of interest regarding the hearing officer duties, and that "Further, the duties imposed by § 3.103 (c)(2) –the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked–are not impacted by the veteran's receipt of notice under 38 U.S.C. § 5103. Bryant, 23 Vet.App. at 497; Cuevas v. Principi, 3 Vet.App. 542 (1992)."

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"However, the hearing officer merely responded by saying: "Okay. Gather up as much as you can," without explaining that the information they were discussing might provide evidence of the a nexus to service that was the determinative factor in the appellant's case. R. at 264. Therefore, the Board erred when it found that VA had met its duty to assist. R. at 7."


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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1676
CHRISTOPHER A. COBB, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE,Judge: The appellant, Christopher A. Cobb, pro se, appeals an April
3, 2009, Board
of Veterans' Appeals (Board) decision denying his claim for service
connection for schizophrenia.
Record (R.) at 3-14. Single-judge disposition is appropriate. See Frankel
v. Derwinski, 1 Vet.App.
23, 25-26 (1990). This appeal is timely, and the Court has jurisdiction
over the case pursuant to
38 U.S.C. §§ 7252(a) and 7266. For the reasons that follow, the Court
will vacate the April 3, 2009,
decision and remand the matter for further proceedings consistent with
this decision.
The appellant served in the U.S. Marine Corps from February 7, 1975, to
March 25, 1975,
and in the U.S. Army Reserves from January 1978 to December 1979. R. at 4.
On April 3, 2009,
the Board denied his claim for service connection for schizophrenia on the
basis that there was no
competent evidence of record linking his schizophrenia to his military
service.
The appellant claims that in August 2007, a Board hearing officer failed
in her duty to
suggest that he submit a medical nexus opinion to support his claim.
Appellant's Brief (Br.) at 6.
In the course of a VA hearing, the hearing officer has the specific duty
to suggest the submission
of evidence that the claimant may have overlooked that would be of
advantage to his position.
38 C.F.R. § 3.103(c)(2) (2010); see Constantino v. West, 12 Vet.App. 517,
520 (1999); see also
Sizemore v. Principi, 18 Vet.App. 264, 274 (2004); Dixon v. Derwinski, 3
Vet.App. 261, 263 (1992).


In pertinent part, § 3.103(c)(2) provides: "It is the responsibility of
the VA employee or employees
conducting the hearings to explain fully the issues and suggest the
submission of evidence which
the claimant may have overlooked and which would be of advantage to the
claimant's position." The
hearing officer's duty includes suggesting that "a claimant submit
evidence on an issue material to
substantiating the claim when the record is missing any evidence on that
issue or when the testimony
at the hearing raises an issue for which there is no evidence in the
record." Previous DocumentBryantNext Hit v. Shinseki, 23
Vet.App. 488, 496 (2010). Further, the duties imposed by § 3.103 (c)(2)
–the duty to fully explain the issues and the duty to suggest the submission of evidence that may have been overlooked–are not impacted by the veteran's receipt of notice under 38 U.S.C. § 5103. Bryant, 23 Vet.App. at 497; Cuevas v. Principi, 3 Vet.App. 542 (1992).
The appellant argues that the Board erred when it denied his claim for
service connection for schizophrenia because a Board hearing officer failed to suggest that he submit a medical nexus opinion to support his claim. Appellant's Br. at 6. The Secretary responds that the hearing officer did, in fact, suggest that the appellant submit additional evidence "and that at this point [the
a]ppellant and the Board member were discussing evidence which might have
assisted with connecting his schizophrenia to his service." Secretary's Br. at 3. The Secretary then cites to three instances in the record that he claims support this assertion. Id. The Court is not persuaded by the Secretary's argument. The three sections of the hearing to which the Secretary cites are separated by several pages and are not part of a cohesive, conversational thread that would have clearly indicated to the appellant that the missing piece of information that should be submitted to support his claim was a medical nexus opinion. At no point did the hearing officer clearly explain what information was missing. In addition, the appellant's brother noted that his parents had been told that his brother was discharged from the Marine Corps due to schizophrenia, and that his mother might have documents to this effect. The appellant's non-attorney representative stated: "there's probably military records that they [the appellant's parents] have there too." R. at 264. However, the hearing officer merely responded by saying: "Okay. Gather up as much as you can," without explaining that the information they were discussing might provide evidence of the a nexus to service that was the determinative factor in the appellant's case. R. at
264. Therefore, the Board erred when it found that VA had met its duty to assist. R. at 7.
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Accordingly, the Court will vacate the April 3, 2009, Board decision. On
remand, the
appellant is free to submit additional evidence and argument, including
the arguments raised in his
briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.
369, 372-73 (1999) (per
curiam order), and the Board must consider any such evidence or argument
submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002). The Court notes that the appellant
now has actual notice that
he needs to submit evidence that his schizophrenia is causally connected
to his military service. The
Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B,
7112 (requiring
Secretary to provide for "expeditious treatment" of claims remanded by
Board or Court).
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's April 3, 2009, decision is VACATED and the matter is REMANDED
to the Board for further proceedings consistent with this decision.
DATED: December 9, 2010
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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