Application of Bryant v. Shinseki, Hearing officer Duties, Single Judge Decision

Single judge decision regarding the application of Bryant in regard to the duties of hearing officer.

"The Court recently clarified the hearing officer's duties stating that:
[W]hen the RO has denied a disability claim because there is no current
disability, no nexus to service, or no incident in service, etc., then the Board
hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues. Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010). This duty exists to ensure "that the appellant understands what issues most likely require the submission of favorable evidence before there is a reasonable possibility of prevailing on the claim." Id. at 501 (Lance, J., concurring). In regard to the duty to suggest the submission of overlooked evidence, the hearing officer " must 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." Id. at 496-97."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1072
CHARLES TAYLOR, 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, through counsel, appeals a February 4, 2009,
Board of
Veterans' Appeals (Board) decision that found new and material evidence
had not been submitted
to reopen a claim of entitlement to service connection for schizophrenia.
Record (R.) at 4. This
appeal is timely, and the Court has jurisdiction to review the Board's
decision pursuant to
38U.S.C.§§7252(a)and7266(a).Single-judgedispositionisappropriate.
SeeFrankelv.Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons that follow, the Court will
affirm the February4, 2009,
decision.
I. FACTS
The appellant had active service in the U.S. MarineCorps from March 1972
through January
1974.R.at297-98.InJanuary1974,theappellant’
sseparationexaminationshowedanormalclinical
psychiatric evaluation. R. at 2089-90.
In July1984, the appellant filed an initial claim for service connection
for a nervous disorder,
which the regional office (RO) denied in August 1984. R. at 1931-32. In
June 1985, the Board
denied entitlement to service connection for schizophrenia based on a
finding that a psychiatric
disorder was not demonstrated during service and that psychosis was not
demonstrated to the


requisite degree of 10% or more within one year of discharge from service.
R. at 1903-1906. Since
then, the appellant has attempted to reopen his claim five times. R. at
1058-1959. Each attempt has
been denied by the RO or Board for failure to provide new and material
evidence. R. at 1058-1959.
Most recently, in April 2006, the appellant submitted evidence that he
received treatment for
schizophrenia in September 1993, in support of reopening his claim. R. at
1098-1106. In May 2006,
VA informed the appellant that the evidence must show that, "[t]here is a
relationship between your
disability and an injury, disease, or event in military service." R. at
1114.
In June 2006, the appellant submitted numerous medical records that
indicated treatment for
schizophrenia. R. at 104-299, 1117-1323. In September 2006, the RO denied
service connection
because the appellant had not submitted new and material evidence. R. at
91-96.
In October 2006, VA received a Notice of Disagreement from the appellant.
In April 2007,
VA issued a Statement of the Case in response and received the
appellant’s Form 9 appealing his
claim to the Board. R. at 64-84. In April 2008, VA received a lay
statement in support of the
appellant's claim that confirmed the appellant's report of symptoms. R. at
43-46.
In April 2008, the appellant and his representative from the American
Legion, Mr. Joseph
Rice, presented testimonyto the Board. R. at 20. The Board member began
the hearing byinforming
Mr. Taylor that the purpose of the hearing was to provide him with an
opportunity to present
evidence on his behalf and to ultimately determine whether new and
material evidence had been
submitted to reopen a claim for service connection for paranoid
schizophrenia. R. at 20.
The appellant notified the hearing officer that he was currently receiving
treatment at a VA
hospital in Memphis, Tennessee. R. at 34. The appellant told the Board
member that he had some
new records to show that treatment. R. at 34. The Board member replied:
All right. Thank you. Mr. Taylor, I'll be holding the record open for 45
days from
today to permit you and Mr. Taylor to obtain any additional records . . .
If 45 days
from today is drawing to a close, [and] you find for whatever reason that
hasn't been
enough time, please contact Mr. Rice, ask him to request an extension of
time if that's
what's desired.
R. at 35-36. The Board member later asked if the appellant had submitted
all relevant evidence in
his possession to which he replied that all he had to submit were the new
records he had just
mentioned. R. at 39. The Board member then suggested that the appellant, "
talk to Mr. Rice at the
2


conclusion of the hearing . . . [You] certainly can submit those and it
might be helpful to do so." R.
at 39. The appellant's representative then stated why he did not think the
records were material,
concluding that:
My professional opinion is that they're not necessary. And I'll stand by
that. I mean
Idon't tryto have a veteran not to submit anything that's concrete
evidence to the file.
But in this instance, the issue of new and material, they would be new but
they're
wouldn't be material. I had the opportunity to look at it and basically
it's a current
treatment, you know.
R. at 14. Following the representative's explanation, the Board member
again addressed the
appellant:
Mr. Taylor, Mr. Rice thinks [the records] are not pertinent to the
determination of
whether new and material evidence has been submitted to reopen the claim.
Therefore, he does not feel that they would be relevant or that it would
be necessary
to submit them at the current time . . . If you wish to discuss that
further with him at
the conclusion of the hearing, obviously, you certainly can do that.
R. at 41. The appellant responded to the Board member's summary of the
discussion affirmatively.
R. at 41. The Board member left the record open but the appellant did not
submit the evidence
discussed during the hearing. R. at 14.
By decision dated February 4, 2009, the Board denied the appellant's
claims. R. 3-16. The
Board noted that the evidence submitted since the last final denial in
August 2004 does not raise a
reasonable possibility of substantiating the veteran's claims for service
connection for schizophrenia
and is not new and material for purposes of reopening a claim. R. at 16.

II. ANALYSIS

A. Applicable Law
Pursuant to 38 U.S.C. § 5108 "if new and material evidence is presented
or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." See Shade v. Shinseki, __ Vet.App. __, 2010 WL 4300776, No 08- 3548 (November 2, 2010). New and material evidence is: [E]xisting evidence not previously submitted to agency decision makers.
Material evidence means existing evidence that, by itself or when considered with
previous
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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. 38 C.F.R. § 3.156(a) (2010). The Court has generally viewed whether the appellant has submitted new and material evidence so as to reopen a prior claim as a factual determination to be made by the Board subject to the "clearly erroneous" standard of review set forth in 38 U.S.C. § 7261(a)(4). Elkins v. West, 12 Vet.App. 209, 217 (1999).
In the course of a VA hearing, the hearing officer has the specific duties
to fully explain the issues and 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 Costantino 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). The Court recently clarified the hearing officer's duties stating that: [W]hen the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues. Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010). This duty exists to ensure "that the appellant understands what issues most likely require the submission of favorable evidence before there is a reasonable possibility of prevailing on the claim." Id. at 501 (Lance, J., concurring). In regard to the duty to suggest the submission of overlooked evidence, the hearing officer "must 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." Id. at 496-97.
When the hearing officer fails to fulfill his duties, the Court must
determine whether any resulting error was prejudicial to the appellant. Id. at 497-98; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005) (stating that the key to determining whether an error is prejudicial is
the effect of the error on the essential fairness of the adjudication),
rev'd on other grounds,
444 F.3d 1328 (Fed. Cir. 2006). "[T]he assessment of prejudice generally
is case specific,
4


demonstrated by the appellant and based on the record." Bryant, 23 Vet. App. at 498. The appellant's representation by counsel does not alleviate VA's obligation to provide compliant notice; however, that representation is a factor that must be considered when determining whether the appellant has been prejudiced by any notice error. Overton v. Nicholson, 20 Vet.App. 427,
438 (2006). VA communications to the claimant and his or her counsel, the claimant's
actions and communications to VA, and the counsel's actions and communications to VA will signal whether, under the circumstances of each case, it has been demonstrated that the appellant had a meaningful opportunity to participate effectively in the processing of his or her claim. Id.
A decision of the Board must include a written statement of the reasons or
bases for its findings and conclusions on all material issues of fact and law presented on the record; and 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); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

B. Duty To Fully Explain the Issues
The appellant argues that the Board committed error with regard to the
duty to assist when the presiding hearing officer failed to fully explain the issues still outstanding that were relevant and material to substantiating the claim. Appellant's Br. at 5. Although the Board erred in failing to fully
explain the issues, the error was not prejudicial because of the appellant's demonstrated understanding of the issues.
At the 2007 VA hearing, the hearing officer explained to the appellant
that the "purpose of the hearing today is to provide you with an opportunity to present evidence including testimony and argument in your case" and that, "the issue before the Board today as certified by the Regional Office is whether new and material evidence has been submitted to reopen a claim for service connection for paranoid schizophrenia." R. at 20. Although these statements explained the purpose of the hearing and the issue generally, they did not explain fully the outstanding issues material to substantiating the claim,which in this instance was the need for new and material evidence regarding the etiology of his schizophrenia. The Board member did not explain that the claim could be substantiated only when his current diagnosis of schizophrenia was related to service by sufficient
5


evidence of a nexus between the two. Therefore, the hearing officer
failed to adequately fulfill her duty under § 3.103(c)(2) to fully explain the issues, constituting error as to the issue raised by the
appellant. See Bryant, 23 Vet.App. at 496.
The Court must next consider whether the appellant was prejudiced by the
hearing officer's error. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders, 129 S.Ct. 1696, 1704 (2009). During the hearing the appellant's representative explained why the records in questions would not be relevant to the issue of new and material evidence:
I just don't see how they would weigh on the new and material to first
open the claim . . . I just didn't think they were pertaining to the issue
certified on appeal . . . they would be new but they're [sic] wouldn't be material. I had the opportunity to look at it and basically it's a current treatment, you know. R. at 40-41.
In light of the foregoing statements by the appellant's representative,
the Court does not believe the appellant was prejudiced by the Board's failure to fully explain the issues because the appellant's representative understood the issue on appeal. R. at 41. More specifically, his statement that current treatment records would be cumulative, rather than new and material, demonstrated that he, and consequently the appellant,was familiar with the basis for the prior decision and understood what was necessary to re-open the claim. See Overton, 20 Vet.App. at 443(no prejudice caused by notice error
where representative had knowledge of what evidence is needed). Therefore,
there was no prejudicial error when the Board failed to fully explain the issues.

C. Duty to Suggest the Submission of Evidence Described During the Hearing
The appellant also asserts that the Board member violated her duty to
suggest the submission of evidence that may have been overlooked that would be of advantage to his claim. R. at 3, 5-9. In this case, the hearing revealed that there were records regarding recent treatment received by the appellant that had not been submitted. However, as discussed above, those records were not overlooked by the appellant because his representative had clearly reviewed them and considered
submitting them. R. at 35-36, 39-41. Indeed, the representative explicitly
stated that the records were not advantageous to the appellant's position. R. at 40-41. Accordingly, the record contradicts the appellant's assertion of error. Moreover, the record also indicates that the Board member explicitly left the record open so that these records — or any others — could be submitted if the appellant so
6


desired. R. at 40-41. Thus, the appellant has not demonstrated either
error or prejudice with regard to the duty to suggest the submission of evidence.

D. Reasons or Bases
The appellant also argues that the his claims should be remanded for
adequate reasons or bases. Appellant's Br. at 3, 8. However, no specific inadequacy is noted and the Court does not discern any. See Allday, supra.

III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's February 4, 2009, decision is AFFIRMED.
DATED: Dec. 20, 2010
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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