Thursday, December 30, 2010

Appplication of Shade v. Shinseki, Reopen Claim when Evidence Triggers Duty to Assist or Raises New Theory of Entitlement, Single Judge Decision

New evidence will be considered material if it "by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a);see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that triggers the duty to assist and evidence that raises a new theory of entitlement are each sufficient to reopen a claim. Shade v. Shinseki, ___ Vet.App. ___ 2010 U.S. App. Vet. Claims LEXIS 1982, *33, *39 (No. 08- 3458 Nov. 2, 2010).
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-3227
RALPH E. LOCKAMY, 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: Theappellant, RalphE.Lockamy,throughcounsel,appealsa July14,
2009,
Board of Veterans' Appeals (Board) decision that denied reopening a claim
of entitlement to service
connection for osteoarthritis, also claimed as degenerative arthritis, and
that denied service
connection for an acquired psychiatric disorder secondaryto a service-
connected disability. Record
(R.) at 3-25. 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
Board decision pursuant
to 38 U.S.C. §§ 7252(a) and 7266. For the reasons set forth below, the
Court will vacate the July
14, 2009, decision and remand the matter for further proceedings
consistent with this decision.
I. FACTS
The appellant served on active duty in the U.S. Marine Corps from January
1969 to July
1969. R. at 958. On May 27, 1969, the Physical Evaluation Board (PEB)
determined that the
appellant was unfit to perform the duties of his rank due to physical
disabilityand the PEBdiagnosed
the appellant with rheumatoid arthritis. R. at 1397. On January 7, 1970, a
VA regional office (RO)
granted service connection for rheumatoid arthritis with a noncompensable
disability rating. R. at
1367-68. On December 3, 1992, the RO denied entitlement to service
connection for osteoarthritis,


R. at 1232-1233, and this decision became final. The RO denied the claim
for an increased rating
for rheumatoid arthritis because there was no active symptomatology for
rheumatoid arthritis. R. at
1233. The RO also denied service connection for osteoarthritis because
service medical records
(SMRs) revealed no complaints, treatment, or diagnosis of osteoarthritis
and the RO denied service
connection because the osteoarthritis was not "incurred or aggravated by
service nor manifested to
a compensable degree within one year subsequent to service for entitlement
to service connection
on a presumptive basis." Id.
On February 2, 2002, the appellant filed a claim with the St. Petersburg,
Florida, RO for
increase in his disability rating for service-connected arthritis and also
claimed that his arthritis had
been incorrectly classified as rheumatoid arthritis and was, instead,
degenerative arthritis.1
R. at
1219-21. The veteran also claimed a mental disorder secondary to his
physical pain. Id. The
veteran claimed he had suffered from the same arthritis problems for 35
years and that the stiffness
in his joints remained unchanged, except to worsen, since discharge from
service. R. at 1006. On
November 16, 2002, the RO ordered a compensation and pension (C&P)
examination and the VA
examiner stated that the appellant may have an inflammatory arthritis, but
he disagreed with the
appellant's historyof rheumatoid arthritis diagnoses. R. at 1161-63. The
examiner for a March 2005
C&P examination also stated that the appellant did not have rheumatoid
arthritis. R. at 1003. In a
July 2007 Board hearing, the veteran reiterated that he thought he had
been misdiagnosed and that
the arthritis from which he currently suffered was the same disease from
which he suffered in 1969.
R. at 546-60. In its July 14, 2009, decision, the Board stated that "[t]he
previously considered
evidence showed that the [v]eteran had a diagnosis of osteoarthritis, but
failed to show such in
service or within one year following separation from service, and failed
to relate the claimed
osteoarthritis disability to service or to service-connected rheumatoid
arthritis." R. at 14.
1
Degenerative arthritis is defined as osteoarthritis in Dorland's
Illustrated Medical Dictionary 152 (31st ed. 2007).
In Steadman's Medical Dictionary 149 (27th ed. 2000), osteoarthritis is
given as a synonym for degenerative
arthritis.


II. ANALYSIS
A. Claim to Reopen
The appellant argues that the Board erred in denying reopening his claim
for osteoarthritis,
also claimed to be degenerative arthritis, because his lay testimony
constitutes new and material
evidence. Appellant's Br. at 9-12.
TheSecretarymustreopenapreviouslyandfinallydisallowedclaimwhen"
newandmaterial
evidence" is presented or secured. 38 U.S.C. §§ 5108, 7104(b), 7105(c);
38 C.F.R. § 3.156(a)
(2010). New evidence is "evidence not previouslysubmitted to
agencydecision makers." 38 C.F.R.
§ 3.156(a); see Elkins v. West, 12 Vet.App. 209, 216 (1999). New evidence
will be considered material if it "by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim." 38 C.F.R. § 3.156(a);see Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Evidence that triggers the duty to assist and evidence that raises
a new theory of entitlement are each sufficient to reopen a claim. Shade v. Shinseki, ___ Vet.App. ___ 2010 U.S. App. Vet. Claims LEXIS 1982, *33, *39 (No. 08- 3458 Nov. 2, 2010).

Service connection may be established by showing continuity of
symptomatology, which requires a claimant to demonstrate(1)that a conditionwas "noted" during service;(2) evidence of postservice continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson,
21 Vet.App. 303, 307 (2007); see Davidson v. Shinseki, 581 F.3d 1313, 1316 (
Fed. Cir. 2009);
Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. §
3.303(b) (2010).
Despite the appellant appearing to have evidence that might support an
award of service
connection under continuity of symptomatology, if that evidence is found
to be credible, the Board
failed to examine it as a possible theory of entitlement in its decision.
R. at 3-25. Thus, the Board
has erred, as it is required to discuss all issues and theories that are
reasonably raised by the claimant
or the evidence of record. Robinson v. Mansfield, 21 Vet. App. 545, 552 (
2008). The appellant's
complaints of arthritis and eventual diagnosis of rheumatoid arthritis
while in service show that the
appellant's arthritic problems were"noted" in service. His testimony is
supported by the medical
evidence that he never had rheumatoid arthritis and suggests that his
history of symptoms are all
related to the same condition. It is the duty of the Board to evaluate the
appellant's lay statements
that he had suffered from the same arthritis problems for 35 years and
that the stiffness in his joints


had remained unchanged, except to worsen, since discharge from service.
Further, if an adequate medical opinion relates the appellant's history of symptoms since service to his current condition, then it need not address the issue of nexus to be sufficient to grant service connection.
The Court notes that it is concerned the Board decision on appeal does not
address the appellant's claim for an increased rating for his rheumatoid arthritis.
That claim appears to be inextricably intertwined with the one on review. Even if that claim was never appealed to the Board, the findings made in that claim and its outcome may well be relevant to this appeal. On the one hand, the appellant cannot receive compensation twice for the same symptoms under the different diagnoses. See Esteban v. Brown, 6 Vet.App. 259, 261 (1994); 38 C.F.R. § 4.14 (2010). On the other hand, the Secretary should not be denying the claim for an increased rating by attributing his symptoms to osteoarthritis, while simultaneously denying service connection by attributing his symptoms to rheumatoid arthritis. See DiCarlo v. Nicholson, 20 Vet.App. 52, 55 (2006).
Ultimately, the appellant is seeking compensation for his symptoms
regardless of diagnosis, see Clemons v. Shinseki, 23 Vet.App. 1, 3 (2009), and the decisions should treat them in a consistent and coherent manner.
B. Secondary Service Connection for a Psychiatric Disorder
The appellant states that his claim for secondary service connection for
his mood disorder
is dependant on the reopening of his primaryclaim for osteoarthritis and
that "[t]he fate of this claim necessarily suffers the fate of the primary claim." Appellant's Br. at 13.
The Court agrees. On remand, after evaluating the theory of continuity of symptomatology for the appellant's osteoarthritis, the Board shall determine whether the appellant should be awarded secondary service connection for a psychiatric disorder.
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 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).


III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record, the Board's July 14, 2009, decision is VACATED and the matter is REMANDED to the Board for further proceedings consistent with this decision.
DATED: December 13, 2010
Copies to:
Matthew D. Hill, Esq.
VA General Counsel (027)

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.

2


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)
3

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
3


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
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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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