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This non-precedential decision is being presented for its citations to Bryant and Sizemore.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

Naval Evaluating New ImPACT Test to Detect TBI

Full Article at: Researchers: Navy SEALS' new brain injury test has high false-positive rate

By Bob Brewin 09/15/2010

Detecting if a soldier has a concussion caused by roadside bombs has been one the toughest tests clinicians face in Afghanistan and Iraq, but the elite Navy SEALs fighting force believes it has found a better way to screen for brain injuries.

In May 2008, the Defense Department mandated the military services use an application called the Automated Neuropsychological Assessment Metrics tool as the standard way to assess the extent of brain injuries. But in August, the Naval Special Warfare Group signed a contract with ImPACT Applications Inc. of Pittsburgh to use the Immediate Post-Concussion Assessment and Cognitive Testing test. The group said preliminary results indicate the new test improves diagnosis and treatment.

But some university researchers reported the ImPACT test has the highest rate of false positives -- indicating a brain injury when there is none -- of the three tools physicians use in sports medicine, a field that has a long history in diagnosing and treating concussions. The Defense and Veterans Brain Injury Center is evaluating ImPACT for use throughout all three services.

The Naval Special Warfare Group, which includes the SEALS and combat craft crew headquartered in Coronado, Calif., still uses the older Automated Neuropsychological Assessment Metrics test, but it is analyzing the ImPACT test to see if it can augment the older tool, said Lt. Catherine Wallace, a spokeswoman for the Naval Special Warfare Group.

The ImPACT test, unlike its predecessor, can be taken online, even in the remote and hazardous areas where the roughly 2,000 SEALS and combat crew operate. "ImPACT is designed specifically for the detection of concussions; does not require a trained neurologist or psychologist; and because it is Internet-based, can produce nearly instantaneous pre- and post-[traumatic brain injury] comparison results," Wallace said. "We can quickly assess if an operator has suffered a head injury that requires him to be removed from the fight temporarily, or sent to a medical facility for further testing."

Lawmakers Continue to Question Personality Disorder Discharges

Full Article at: Personality disorder discharge problems persist
By Leo Shane III
Published: September 16, 2010


Lawmakers and veterans advocates criticized Defense Department officials yesterday for continued questions surrounding personality disorder discharges by the military, a practice critics say allows the military to avoid paying for some war injuries by blaming problems instead on pre-existing medical conditions.

In testimony before the House Veterans Affairs Committee Wednesday, Department officials said the number of personality disorder dismissals has dropped by nearly a third in recent years, thanks to stricter regulation and new requirements for discharges. But the military in fiscal 2009 (the latest data available) still booted more than 2,000 troops for conditions they say were lingering from before their enlistment, a figure that lawmakers said is unsettling.

"Three years later, the Committee continues to hear of accounts of wrongful personality disorder discharges," said chairman Bob Filner, D-Calif. "This begs the question of how many soldiers have to commit suicide, go bankrupt, and end up homeless before real action is taken to remedy this problem?"