Wednesday, July 7, 2010

Medical Opinion Must Include'Address Veterans Lay Evidence

This case is being presented because of it's citation regarding medical expert and how that expert must include the lay evidence of the veteran.

"It is unclear whether she considered the appellant's lay statements in reaching her conclusion. See Ardison v. Brown, 6 Vet.App. 405, 407 (1994) (noting that a medical opinion must be based on an accurate factual premise and on a
consideration of the veteran's prior medical history and examinations and must
describe the disability in sufficient detail so that the Board's "'evaluation of the claimed disability will be a fully informed one.'" (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). In reevaluating the appellant's claims for entitlement to service connection, the Board should consider whether this is an adequate medical examination on which to base a decision. See Dalton v. Nicholson, 21 Vet.App. 23, 39 (2007) (finding that a medical examination was inadequate where the examiner "impermissibly ignored the appellant's lay assertions that he had sustained a back injury during service"); see also Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that a VA medical examiner's conclusions were of "questionable probative value" because the examiner failed to consider certain information); cf. Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) ("[R]eliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the
5


veteran.").
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3075
RONALD D. AKERS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before SCHOELEN, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.


SCHOELEN, Judge: The pro se appellant, Ronald D. Akers, appeals a June 9,
2008, Board
of Veterans' Appeals (Board) decision in which the Board denied his claims
for entitlement to
service connection for bilateral Previous DocumenthearingNext Hit Previous HitlossNext Hit and tinnitus. Record of
Proceedings (R.) at 12. This
appeal is timely, and the Court has jurisdiction to review the Board's
decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). Single-judge disposition is appropriate. See
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). Because the Board failed to address lay
evidence suggesting that the
appellant's Previous HithearingNext Hit conditions have an etiology in service, the Court will
vacate the June 2008
decision and remand the matter to the Board for further proceedings.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from June 1970 to
January 1972. R.
at 239. His separation examination, dated January 1972, does not indicate
Previous HithearingNext Hit problems or
tinnitus. R. at 390-91.
A May 1996 VA medical examination indicates that the appellant was
suffering from
tinnitus. R. at 547. He filed a claim for entitlement to service
connection for an "injuryto both ears"
in August 1999. R. at 501-04. In conjunction with this application, the
appellant filed a statement


indicating that, while in service, he was assigned to the artillery and
that he did not use ear
protection. R. at 478. He further stated that he "worked with and around
artillery for the entire two
years of active duty . . . and was seen on several occasions for ringing
in [his] ears and the
accompanying flashes and spots in [his] eyes." Id. (emphasis in original).
He added that his
Congressperson "intervened and assisted in having my orders for Vietnam
changed because of the
great concern that I would pass out constantly due to the noise." Id. In
April 2000, the regional
office (RO) denied the appellant's claim, characterized as one for
entitlement to service connection
for tinnitus. R. at 471.
A VA treatment record dated July 2002 reveals that the appellant
complained of decreased
Previous HithearingNext Hit and tinnitus and that he reported militarynoise exposure. R. at
444. In September 2002, the
appellant attempted to reopen his claim for entitlement to service
connection for bilateral tinnitus.
R. at 459. Additionally, he submitted a claim for entitlement to service
connection for bilateral
Previous HithearingNext Hit Previous HitlossNext Hit. Id. A September 2002 VA treatment record shows that the
appellant reported a history
of bilateral tinnitus, constant in nature, that "seems to have worsened
over the past year or so." R.
at 440. The assessment was tinnitus "[l]ikely due to noise exposure and
Previous HithearingNext Hit Previous HitlossNext Hit." R. at 444.
A February 2004 RO decision denied both of the appellant's claims. R. at
384.
In an April 2005 statement, the appellant described an in-service incident
in which he was
hit by a pole and experienced "ringing in [his] ears." R. at 214. In a
January 2007 VA medical
report, an examiner noted that the appellant's Previous HithearingNext Hit was measured as
normal at the time of his
separation and that he worked as a mechanic. R. at 39. She opined that it
was "not as likely as not
that service noise exposure contributed to [the appellant's] present
Previous HithearingNext Hit Previous HitlossNext Hit bilaterally." Id.
Additionally, the examiner noted that the appellant had reported bilateral
tinnitus since 1970. Id.
However, she also recognized that there were no medical records of
tinnitus until 1996. Id. The
examiner was therefore of the opinion that it was "not [at] least as
likely as not that the present
bilateral tinnitus was related [to] Previous HithearingNext Hit Previous HitlossNext Hit from [s]ervice noise
exposure as Previous HithearingNext Hit was
considered normal at separation." R. at 40. In February 2007, a VA
examiner diagnosed the
appellant with subjective tinnitus. R. at 44. The examiner stated that "[t]
he tinnitus he describes is
a subjective phenomenon which, unfortunately, is upsetting to him but
cannot really be quantified."
Id.
2


In the June 2008 Board decision here on appeal, the Board denied the
appellant's claims for
entitlement to service connection for bilateral Previous HithearingNext Hit Previous HitlossNext Hit and tinnitus.
R. at 12. The Board
acknowledged that the appellant suffered from both of these conditions and
that he had complained
of noise exposure in service. R. at 10. However, the Board determined that "
the competent,
probativeevidenceestablishes that thereis nomedicalrelationship,ornexus,
between each disability
and the [appellant's] period of service." R. at 11.
II. ANALYSIS
On appeal, the appellant asserts generally that the Board erred in denying
his service-
connection claims. Appellant's Brief (Br.) at 1-2. He argues that the
Board failed to consider that
his Previous HithearingNext Hit Previous HitlossNext Hit could be related to his being hit by a pole in service,
as he asserted in April 2005.
Id. at 3. He asserts that the Board failed to obtain letters from his
brothers, who are also auto
mechanics but who, he asserts, do not suffer from tinnitus. Id. He also
complains that portions of
the record are illegible because of poor printing quality. Id. at 4.
Finally, he asserts that his Previous HithearingNext Hit
was not checked in service. Id. The Secretary argues that the "evidence
fails to reveal a direct
correlation between [the appellant's] current bilateral Previous HithearingNext Hit Previous HitlossNext Hit and
tinnitus with his alleged
service-related noise exposure." Secretary's Br. at 8. He contends that
the decision should be
affirmed. Id. at 14.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v.
West, 12 Vet.App. 247, 252
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); 38 C.F.R. § 3.303 (2009).
The Board must consider all evidence of record and discuss all "
potentially applicable"
provisions of law and regulation. 38 U.S.C. § 7104(a). The Board's
decision must include an
adequate statement of the reasons or bases for its findings and
conclusions on all material issues of
fact and law presented in 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
3


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). To comply with this requirement,
the Board must analyze
the credibility and probative value of the evidence, account for the
evidence it finds persuasive or
unpersuasive, and provide the reasons for its rejection of any material
evidence favorable to the
claimant. See Caluza, 7 Vet.App. at 506.
In this case, the Board based its decision on a finding that the appellant
had failed to show
a nexus between his currently diagnosed Previous HithearingNext Hit conditions and his
complaints of noise exposure
in service. R. at 11-12. The Board observed "no evidence of any complaints,
findings, or diagnosis
of Previous HithearingNext Hit Previous HitlossNext Hit or tinnitus until more than 24 years after the [
appellant's service]." R. at 11. The
Board was of the opinion that such a lengthydelaybetween medical
evidencedocumentinga Previous HithearingNext Hit
condition and the appellant's postservice occupation in a field in which
he might be exposed to loud
noise weighed against a finding that his Previous HithearingNext Hit conditions were related
to service. Id. The Board
also considered the January 2007 medical opinion, which revealed an
opinion that the appellant's
Previous HithearingNext Hit conditions were not related to service. Id.
However, the Board never weighed the credibility or probative value of the
appellant's lay
testimony revealing that he has not only suffered from a Previous HithearingNext Hit condition
in the years since service,
but that he actually had a Previous HithearingNext Hit condition while in service.
Specifically, in a November 1999
statement, the appellant reported that, while in service, he was "seen on
several occasions for ringing
in [his] ears." R. at 478 (emphasis in original). Additionally, in April
2005, the appellant stated that
he was hit in the head with a pole in service and that he experienced
ringing in his ears at that time.
R. at 214. This evidence indicates that either one or both of the
appellant's current Previous HithearingNext Hit
disabilities (there is some evidence suggesting they are related (R. at
444)) may have had an onset
in service and before he began his postservice career as an auto mechanic.
The appellant is
competent to describe symptoms he observed, Layno v. Brown, 6 Vet.App. 465,
469 (1994), and a
ringing in the ears would seem to be a symptom capable of lay observation.
The Board should have
discussed the credibility of this lay evidence and weighed the probative
value of it against the other
evidence of record.
The Court acknowledges that this evidence is inconsistent with service
medical records
(SMRs) showing normal Previous HithearingNext Hit at separation. R. at 390-91. But it is the
Board's responsibility to
4


determine the credibility and appropriate weight to be assigned to
evidence, Washington v.
Nicholson, 19 Vet.App. 362, 368 (2005), and the Court will not engage in a
factfinding mission to
determine the appropriate credibilityand probative value to be given to
the appellant's laytestimony.
See Elkins v. Gober, 229 F.3d 1369, 1377 (Fed. Cir. 2000) ("Fact-finding
in veterans cases is to be
done by the expert [Board], not by the Veterans Court."). Because the
Board failed to adequately
consider lay evidence suggesting an onset of Previous HithearingNext Hit problems in service,
the Court will vacate the
Board's decision and remand the matter so that the Board may consider this
issue. See Tucker v.
West, 11 Vet.App. 369, 374 (1998) (finding that a remand is the
appropriate remedy "where the
Board has incorrectly applied the law, failed to provide an adequate
statement of reasons or bases
for its determinations, or where the record is otherwise inadequate").
On remand, the Board should also consider the need for an additional
medical examination.
In this case, the Board relied on the January 2007 VA medical examination
to find that there was no
nexus between the appellant's current Previous HithearingNext Hit conditions and service. R.
at 11. However, the
medical examiner's conclusion is supported by the rationale that the
appellant's separation
examination revealed normal Previous HithearingNext Hit and that there was no documented
medical evidence showing
a Previous HithearingNext Document condition for many years after service. R. at 52. It is unclear
whether she considered the
appellant's lay statements in reaching her conclusion. See Ardison v.
Brown, 6 Vet.App. 405, 407
(1994) (noting that a medical opinion must be based on an accurate factual
premise and on a
considerationoftheveteran's priormedical historyand examinations and must
describethedisability
in sufficient detail so that the Board's "'evaluation of the claimed
disability will be a fully informed
one.'" (quoting Green v. Derwinski, 1 Vet.App. 121, 124 (1991))). In
reevaluating the appellant's
claims for entitlement to service connection, the Board should consider
whether this is an adequate
medical examination on which to base a decision. See Dalton v. Nicholson,
21 Vet.App. 23, 39
(2007) (finding that a medical examination was inadequate where the
examiner "impermissibly
ignored the appellant's lay assertions that he had sustained a back injury
during service"); see also
Mariano v. Principi, 17 Vet.App. 305, 312 (2003) (holding that a VA
medical examiner's
conclusions were of "questionable probative value" because the examiner
failed to consider certain
information); cf. Coburn v. Nicholson, 19 Vet.App. 427, 432 (2006) ("[R]
eliance on a veteran's
statements renders a medical report incredible only if the Board rejects
the statements of the
5


veteran."). If the Board chooses to rely on this medical examination, it
should state the reasons why
the examination is adequate.
Given this disposition, the Court will not, at this time, address the
other arguments and issues
raised by the appellant. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (
per curiam order) (holding
that "[a] narrow decision preserves for the appellant an opportunity to
argue those claimed errors
before the Board at the readjudication, and, of course, before this Court
in an appeal, should the
Board rule against him"). On remand, the appellant is free to submit
additional evidence and
argument on the remanded matters, and the Board is required to consider
anysuch relevant evidence
and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating
that, on remand, the Board
must consider additional evidence and argument in assessing entitlement to
benefit sought);
Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order).
The Court has held that
"[a] remand is meant to entail a critical examination of the justification
for the decision." Fletcher
v. Derwinski, 1 Vet.App. 394, 397 (1991). The Board must proceed
expeditiously, in accordance
with 38 U.S.C. § 7112 (requiring Secretary to provide for "expeditious
treatment" of claims
remanded by the Court).
III. CONCLUSION
After consideration of the appellant's and the Secretary's pleadings, and
a review of the
record, the Board's June 9, 2008, decision is VACATED, and the matter is
REMANDED to the
Board for further proceedings consistent with this decision.
DATED: June 30, 2010
Copies to:
Ronald D. Akers
VA General Counsel (027)
6

August-VA Patient Exposed to Hepatitis, Sues

This is one to watch, because one of the first reports that caused the massive investigation of contaminated medical equipment start in Augusta-VA because a patient noticed that laryngoscopes were not being properly sterilized. see also VA hospital says sterilization issues fixed, By Russ Bynum - The Associated Press, Posted : Wednesday Aug 26, 2009
=====================================================

Full Article at: VA hospital sued over improperly cleaned tool

The Associated Press
Posted : Wednesday Jul 7, 2010 11:24:11 EDT

AUGUSTA, Ga. — "A patient is suing the Veterans Administration hospital in Augusta for $10 million, saying she contracted hepatitis C from an improperly cleaned instrument.

The patient, Judy Yarzebinski, says in her lawsuit that she had a laryngoscopy to evaluate her for vocal cord paralysis in September 2008 and was later notified by the VA that she might have been exposed to diseases.

She says she tested positive for hepatitis C in February 2009, but because she has a blood disorder she can't be treated for the condition."

Vazquez-Flores v. Peake; Wilson; VCAA;, Prejudice; hearing officer duties; Bryant v. Shinseki,

This memorandum decision is interesting because it looks at VCAA notice as seen by the Federal Circuit and is one of the first applications of Bryant. While the cast itself may not be cited as precedent the logic, for the pro se veteran is of interest and may provide some guidance toward the creation of some similar sort of argument.
==================================

"Mr. Mitchell first argues that VA failed to provide adequate notice that,
if his claim for increased compensation were granted, the effective date for the increased award could be assigned up to one year prior to the date the claim for increased compensation was received if it were factually ascertainable that his disability had increased in that time frame. See 38 U.S.C. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2) (2010). He also argues that the notice he received did not indicate that he could submit lay evidence to substantiate the assignment of an effective date up to one year earlier than the date of his claim.
The Secretary responds that Mr. Mitchell's arguments are misplaced, as "VA
is not required to provide [VCAA] notice after a claim has been substantiated."
Secretary's Brief at 10. He further explains that Mr. Mitchell's claim has been "substantiated because a decision has been made awarding service connection, a disability rating and an effective date." Id. at 10-11. Thus the
2

Secretary appears to argue that, after Mr. Mitchell's service-connection
claim was granted in 1959, VCAA notice was no longer required for any subsequent claim related to that disability.
The Secretary's argument fails to recognize that the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit) has stated that "notice must
identify the information and evidence necessary to substantiate the particular type of claim being asserted by the veteran."
Wilson, 506 F.3d at 1059.


In Vazquez-Flores v. Shinseki, the Federal Circuit clarified that the
phrase "particular type of claim" used in Wilson was "intended to distinguish between types of claims, i.e., between claims seeking service connection and those seeking increased ratings." 580 F.3d at 1277.

The Federal Circuit further clarified that "generic notice provided in response to a request for service connection must differ from that provided in response to a request for an increased rating." Id. Consequently, the Secretary's argument that notice was not required for the increased-rating claim because the service-connection claim was substantiated must fail."
============================================================

The hearing officer's failure to explicitly lay out the material issue was combined
with a failure to suggest to Mr. Mitchell that he should secure and submit evidence regarding when his service-connected disability worsened–evidence that was lacking at the time of the hearing and that remained lacking through final Board decision. Had Mr. Mitchell been so notified, he could have obtained and submitted such information. His prejudice arises from the lost additional opportunity to try and do so before his claim was finally adjudicated, which is one of the prima facie purposes of the regulatory requirement that the Board hearing officer suggest the submission of material evidence that the appellant may have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet. App. 476, 481 (1996)(stating that "'[p]rejudice . . . means injury to an interest that the statute, regulation, or rule in question was designed to protect'" (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996))); cf. Shinseki v. Sanders, 129 S. Ct. at 1708 (indicating as a factor for determining notice-error prejudice, the identification of evidence that might have been obtained or sought if proper notification had been given); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding that "[w]here the effect of an error on the outcome of a proceeding is unquantifiable . . . , we will not speculate as to what the outcome might have been had the error not occurred"). The Court concludes, therefore, that Mr. Mitchell was prejudiced by the hearing officer's failure to fulfill the duties specified in 38 C.F.R. § 3.103(c)(2).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-3940
SIDNEY MITCHELL, 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. Army veteran Sidney Mitchell appeals through counsel from
an August 22, 2008, Board of Veterans' Appeals (Board) decision that denied
entitlement to an effective date
earlier than May 17, 2006, for a 30% disability rating for cold weather
residuals of the right and left
lower extremities. Because the Board hearing officer failed to explain
fully the issues and suggest
the submission of evidence that may have been overlooked, as required by
38 C.F.R. § 3.103(c)(2)
(2010), the Court will set aside the Board's August 2008, decision and
remand the matter of the
effective date for readjudication.
Mr. Mitchell served in Korea, where he stood guard duty in the snow. He
was discharged
from the Army on August 25, 1959, and was granted service connection for
residuals of frozen feet,
effective August 26, 1959, at a noncompensable rating. On May 18, 2006, VA
received his claim
for an increased rating.
VA sent Mr. Mitchell a notice letter on May 25, 2006, that explained what
the evidence
needed to show in order for his claim to be granted and how VA would
assist him. Mr. Mitchell
responded to VA, indicating that he had no other information or evidence
to give to VA to
substantiate his claim. VA subsequently provided a medical examination and
the regional office
(RO) decided his claim, awarding a 30% disability rating with an effective
date of May 17, 2006,


the date of receipt of his claim for increase. Mr. Mitchell appealed the
RO decision and participated
in a hearing before the Board. Mr. Mitchell now appeals the Board's denial
of an earlier effective
date.
I. ANALYSIS
A. VCAA Notice Letter
As ageneralmatter,thepurposeof the Veterans Claims Assistance Act (VCAA),
Pub. L. No.
106-475, § 3(a), 114 Stat. 2096 (codified in part at 38 U.S.C. § 5103(a
)), which establishes the notice
requirements, "is to require that the VA provide affirmative notification
to the claimant prior to the
initial decision in the case as to the evidence that is needed and who
shall be responsible for
providing it." Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006);
see also 38 U.S.C. §
5103(a). Notice need not be specific to the veteran, but must be specific
to the claim in that it
"identify the information and evidence necessary to substantiate the
particular type of claim being
asserted." Wilson v. Mansfield, 506 F.3d 1055, 1059 (Fed. Cir. 2007); see
also Vazquez-Flores v.
Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009) (stating that the generic
notice required for a claim
for service connection must be different from the generic notice required
for a request for an
increased rating).
Mr. Mitchell first argues that VA failed to provide adequate notice that,
if his claim for
increased compensation were granted, the effective date for the increased
award could be assigned
up to one year prior to the date the claim for increased compensation was
received if it were factually
ascertainable that his disability had increased in that time frame. See 38
U.S.C. § 5110(b)(2);
38 C.F.R. § 3.400(o)(2) (2010). He also argues that the notice he
received did not indicate that he
could submit lay evidence to substantiate the assignment of an effective
date up to one year earlier
than the date of his claim.
The Secretary responds that Mr. Mitchell's arguments are misplaced, as "VA
is not required
to provide [VCAA] notice after a claim has been substantiated."
Secretary's Brief at 10. He further
explains that Mr. Mitchell's claim has been "substantiated because a
decision has been made
awarding service connection, a disability rating and an effective date."
Id. at 10-11. Thus the
2


Secretary appears to argue that, after Mr. Mitchell's service-connection
claim was granted in 1959,
VCAA notice was no longer required for any subsequent claim related to
that disability.
The Secretary's argument fails to recognize that the U.S. Court of Appeals
for the Federal
Circuit (Federal Circuit) has stated that"noticemust
identifytheinformationandevidence necessary
to substantiate the particular type of claim being asserted by the veteran
." Wilson, 506 F.3d at 1059.
In Vazquez-Flores v. Shinseki, the Federal Circuit clarified that the
phrase "particular type of claim"
used in Wilson was "intended to distinguish between types of claims, i.e.,
between claims seeking
service connection and those seeking increased ratings." 580 F.3d at 1277.
The Federal Circuit
further clarified that "generic notice provided in response to a request
for service connection must
differ from that provided in response to a request for an increased rating
." Id. Consequently, the
Secretary's argument that notice was not required for the increased-rating
claim because the service-
connection claim was substantiated must fail.
The Court, therefore, must determine whether the Board erred in finding
that "the required
VCAA notification was provided in a letter issued in August 2006"1
and "the veteran has been
notified as to effective dates in his initial May 2006 VCAA notification
in his claim for an increased
rating." Record (R.) at 7.
In Vazquez-Flores v. Peake, 27 Vet.App. 37 (2008), this Court determined
what is necessary
to substantiate a claim for increased compensation. The Court stated:
Accordingly, for an increased-compensation claim, section 5103(a) requires,
at a
minimum, that the Secretary notify the claimant that, to substantiate a
claim the
claimant must provide, or ask the Secretary to obtain, medical or lay
evidence
demonstrating a worsening or increase in severity of the disability and
the effect that
worsening has on the claimant's employment.
Id. at 43; see also Vazquez-Flores, 580 F.3d at 1281 (vacating this
Court's decision in Vazquez-
Flores only "insofar as the notice described . . . requires the VA to
notify a veteran of . . . potential
'daily life' evidence"). Therefore, notice that the effective date for the
increased award could be
assigned up to one year prior to the date of the claim for increased
compensation is not required to
In the Secretary's response to the Court's May 25, 2010, order to
supplement the record, he states that the
Board committed a typographical error in referring to an August 2006
letter, and instead intended to reference the May
2006 VCAA letter.
1
3


substantiate a claim for an increased rating and is not required under
the VCAA. The same is true
for notice regarding lay evidence to substantiate the assignment of an
effective date up to one year
earlier than the date of the claim; it also is not required to
substantiate a claim for an increased rating
and such notice is therefore not required under the VCAA.
The Court has determined what is necessary to substantiate a claim for an
increased rating.
Mr. Mitchell's arguments regarding the insufficiency of the notice letter
he received do not relate to
the information and evidence necessary to substantiate his claim, as
articulated by the Court in
Vazquez-Florez. Consequently, the Court discerns no error in the Board's
finding that Mr. Mitchell
received VCAA-compliant notification.
B. Duties of Hearing Officer
Mr. Mitchell next argues that the hearingofficer at his June 2, 2008,
hearingbefore the Board
failed 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
," as required by
38 C.F.R. § 3.103(c)(2). The regulation also states that questions
directed to the claimant are to be
framed to "assure clarity and completeness of the hearing record." Id. The
two duties imposed by
the regulation–the duty to fully explain the issues and the dutyto
suggest the submission of evidence
that may have been overlooked–are not impacted by the veteran's receipt
of a VCAA-compliant
notice letter. See BryantNext Hit v. Shinseki, __ Vet.App. __, No. 08-4080 (July 1,
2010); Cuevas v.
Principi, 3 Vet.App. 542 (1992). The RO's rating decision and Statement of
the Case should assist
the hearing officer in identifying the outstanding issues. Previous HitBryantNext Document, __ Vet.
App. __, __, No. 08-4080,
slip op. at __ n.3 (July 1, 2010).
Here, the hearing officer correctly identified the outstanding issue. He
stated: "The only
remaining issue is that of an earlier effective date for the 30% cold
weather residuals. It's now said
it's May2006 and so at this time I'll hear Mr. Mitchell's
testimonyregardingthe earlier effective date.
Go ahead Mr. Metcalfe."2
R. at 237. The hearing officer did not, however, fully explain the
outstanding issue. He did not tell Mr. Mitchell what the evidence would
need to establish in order
for the Board to grant an earlier effective date, nor did he explain why
the RO had denied an earlier
effective date. The hearing officer also did not redirect Mr. Mitchell or
his representative when the
2
Mr. Mitchell was represented at his hearing by Howard Metcalfe, from the
American Legion.
4


sole argument theypresented was that Mr. Mitchell never received VA's
rating decision in 1959 and
therefore he was not able to appeal, nor did the hearing officer explain
why that argument was
irrelevant to establishing entitlement to an effective date up to one year
earlier than the date on which
the claim for an increase rating was filed. The hearing transcript as a
whole–which is seven pages
long and in which Mr. Mitchell spoke 37 words–demonstrates that the
hearing officer failed to
explain fully the issue or suggest the submission of any evidence that may
have been overlooked.
Consequently, the hearing officer failed to fulfill his duties under 38 C.
F.R. § 3.103(c)(2).
The Court must next consider whether Mr. Mitchell 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). The hearing
officer's failure to explicitly lay out the material issue was combined
with a failure to suggest to Mr.
Mitchell that he should secure and submit evidence regarding when his
service-connected disability
worsened–evidence that was lacking at the time of the hearing and that
remained lacking through
final Board decision. Had Mr. Mitchell been so notified, he could have
obtained and submitted such
information. His prejudice arises from the lost additional opportunity to
try and do so before his
claim was finallyadjudicated, which is one of the prima facie purposes of
the regulatoryrequirement
that the Board hearing officer suggest the submission of material evidence
that the appellant may
have overlooked. 38 C.F.R. § 3.103(c)(2); see also Parker v. Brown, 9 Vet.
App. 476, 481 (1996)
(stating that "'[p]rejudice . . . means injury to an interest that the
statute, regulation, or rule in
question was designed to protect'" (quoting Intercargo Ins. Co. v. United
States, 83 F.3d 391, 396
(Fed. Cir. 1996))); cf. Shinseki v. Sanders, 129 S. Ct. at 1708 (
indicating as a factor for determining
notice-error prejudice, the identification of evidence that might have
been obtained or sought if
proper notification had been given); Wagner v. United States, 365 F.3d
1358, 1365 (Fed. Cir. 2004)
(holding that "[w]here the effect of an error on the outcome of a
proceeding is unquantifiable . . . ,
we will not speculate as to what the outcome might have been had the error
not occurred"). The
Court concludes, therefore, that Mr. Mitchell was prejudiced bythe hearing
officer's failure to fulfill
the duties specified in 38 C.F.R. § 3.103(c)(2).
5


II. CONCLUSION
Based on consideration of the foregoing, the Court SETS ASIDE the Board's
August 22,
2008, decision and REMANDS for readjudication the matter of the effective
date of an award of
30% disability rating for cold weather residuals of the right and left
lower extremity. On remand,
Mr. Mitchell will be free to submit additional evidence and argument in
support of an earlier
effective date, 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 upon 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. Mitchell. See Marsh v.
West, 11 Vet.App. 468, 472
(1998).
DATED: July 2, 2010
Copies to:
Kenneth M. Carpenter, Esq.
VA General Counsel (027)
6