Single Judge Application, Bryant v. Shinseki, 23 Vet.App., Overlooked Evidence

Excerpt from decision below:
"In regard to the duty to explain issues fully, the Court has stated that when 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. Id. at 496. In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that "nothing in the regulation limits the Secretary's duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing"; rather, 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.

----------------------------------------------------


Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0032
DENNIS R. RASNICK, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HOLDAWAY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HOLDAWAY,Judge: Theappellant,throughcounsel,appeals fromtheDecember14,2009,
decision of the Board of Veterans' Appeals (Board) that denied entitlement
to service connection for
lost teeth, to include as secondary to septoturbinoplasty for a service-
connected nasal septal
deviation. Both parties filed briefs. This appeal is timely and the Court
has jurisdiction pursuant
to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge disposition is
appropriate when the issue is of
"relative simplicity" and the outcome is not "reasonably debatable."
Frankel v. Derwinski,
1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the decision
of the Board will be
affirmed.
I. FACTS
The appellant served honorably on active duty in the U.S. Army from
January 1966 to
December 1967. Record (R.) at 37. His initial service dental examination,
dated in January 1966,
reflected that he had six missing teeth, gingivitis, and slight calculus.
R. at 1014. The appellant's
service medical records (SMRs) and service personnel records reveal that
he incurred multiple
lacerations to his face and throat in a June 1967 automobile accident. R.
at 976-77, 999-1000, 1018-
19, 1039.


In February 1969, the regional office (RO) granted service connection for
facial scars, and
assigned a noncompensable disability rating for the scars. R. at 962. The
appellant subsequently
soughtentitlementtooutpatientdentalcarebaseduponanallegation that his
front teethhadloosened
from the impact of the in-service accident. R. at 900. In March 1977, the
appellant was examined
by a VA dentist. R. at 902. The VA dentist opined that there was "no
indication of dental trauma
in service." Id. In April 1977, the RO increased the disability rating for
the appellant's facial scars
to 10%. R. at 890. The RO subsequently granted service connected for a
deviated septum, status
post septoturbinoplasty, rated as 10% disabling, effective in January 1984.
See R. at 750.
In May 1999, the appellant submitted a statement to the RO in which he
alleged that all of
his top teeth fell out as a result of surgery to correct his service-
connected deviated septum. R. at
807. The RO denied the appellant's claim for service connection for loss
of teeth in January 2000
(R. at 744-51) and the appellant perfected an appeal (R. at 593-94, 733).
The appellant testified at
a June 20021
Board hearing that he had no trouble with his teeth prior to the 1982
surgery to correct
his deviated septum and that the doctor "loosened all my muscles with
surgery and stuff and cut all
[his] top musculars [sic] that hold [his] teeth in and when he did [his]
teeth fell out." R. at 555. His
representative acknowledgedthatit wasthe"VA's position that [the
appellanthad not] presented any
evidence to support [the] idea" that his loss of teeth was related to his
nasal septum. R. at 553. The
appellant stated that he had no written evidence he could produce. Id. The
appellant's representative
asked the appellant whether a physician had given an opinion as to whether
or not his surgery had
caused his tooth loss, and the appellant stated that none had. R. at 554.
In June 2004, the Board remanded the appellant's claim for further
development, to include
a VA examination. R. at 471-96. The appellant underwent a VA dental
examination in June 2005.
R. at 411. The examiner reported that he "found no evidence that there was
a defect in the hard or
soft palate referencing the maxilla." Id. He noted that a 1977 VA trauma
rating reflected no dental
trauma. The examiner reported that the appellant was missing all the teeth
in the maxillary arch and
five teeth in the mandibular arch. Id. The examiner further reported that
the remaining dentition in
Although the appellant states that the Board hearing was conducted on June
11, 2007 (Appellant's Br. at
6), the record reflects only one hearing, which occurred on June 11, 2002.
1
2


the mandibular arch was in an "extremely poor state of repair" with "
advanced chronic periodontal
disease [and] gross caries." The examiner opined that
This is obviously a result of a history of dental neglect, with very poor
dental oral
hygiene . . . . I must say that I see no evidence in the maxillary arch
that would
indicate otherwise than the lower teeth the fact that he had normal loss
of his teeth
from the same reason that the lower teeth will be lost, periodontal
disease. I found
no evidence in the records where there was dental trauma, nor did Ifind
anyevidence
that any procedure was performed where his maxillary teeth were
compromised as
to the longevity or prognosis for retention.
Id.
In a May 2007 addendum, the VA dentist who had conducted the June 2005
dental
examination opined that there was no evidence in the appellant's records
that his loss of teeth
resulted from his nasal surgery. R. at 281. The examiner further opined
that "[i]t is not likely . . .
that any tooth loss in his oral cavity would be the result of his nasal
surgery or sinus surgery." Id.
On December 14, 2009, the Board issued its decision on appeal, in which it
denied entitlement to
service connection for lost teeth, to include as secondary to a
septoturbinoplasty. R. at 3-11. This
appeal followed.
II. ANALYSIS
The appellant's sole argument on appeal is that the hearing officer at the
Board hearing failed
to explain the issue of medical nexus evidence and "failed to suggest the
submission of evidence
overlooked, i.e., written reports regarding medical nexus evidence, and
which would be
advantageous to [his] position." Appellant's Brief (Br.) at 4-12. He
contends that this failure was
prejudicial because "the harmless error conclusion would require the [
Court] to resolve an issue of
fact that the Board never resolved." Appellant's Br. at 11. He further
contends that it would be "pure
speculation for the Court to conclude that the Hearing Officer complied
with 38 C.F.R. § 3.103(c)."
Appellant's Br. at 12. The Secretaryconcedes that the hearing officer did
not satisfythe duty to fully
explain the issues pursuant to § 3.103(c) and the Court's guidance.
Secretary's Br. at 12-14. He
expressly concedes that the hearing officer "does not appear to have
explained either the basis of the
RO's denial or the outstanding elements for his claim for entitlement to
service connection for tooth
loss." Secretary's Br. at 14. However, he contends that the error was not
prejudicial. Secretary's Br.
3


at 15-20. He first contends that the appellant has not pled with
sufficient particularity how the
alleged hearing officer errors prejudiced his claim. Secretary's Br. at 15.
He further contends that
the statements made by the appellant's representative at the hearing "
obviated the need for the
hearing officer to explain the basis of the RO's denial." Id. Regarding
the appellant's opportunity
to submit evidence after the hearing, the Secretarynotes that VA developed
the appellant's claim for
seven years after the Board hearing, to include the provision of a VA
examination evaluating
whether there was a connection between the loss of teeth and service or
his service-connected
septum surgery. Secretary's Br. at 19, citing R. at 281, 411.
Under38C.F.R.§3.103(c)(2)(2010),"[i]t is
theresponsibilityoftheemployeeoremployees
conducting the hearings to explain fully the issues and suggest the
submission of evidence which the
claimant mayhave overlooked and which would be ofadvantageto the
claimant's position." In order
to follow this regulatory mandate, a hearing officer "cannot ignore a lack
of evidence in the record
on a material issue and not suggest its submission, unless the record (or
the claimant at hearing)
clearly shows that such evidence is not available." Previous DocumentBryantNext Hit v. Shinseki, 23
Vet.App. 488, 493-94
(2010) (per curiam). In regard to the duty to explain issues fully, the
Court has stated that
when 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.
Id. at 496. In regard to the duty to suggest the submission of overlooked
evidence, the Court in
Previous HitBryantNext Hit clarified that "nothing in the regulation limits the Secretary's
duties to advise the claimant to
submit evidence only to those situations when the existence of such
evidence is raised at the
hearing"; rather,thehearingofficer"
mustsuggestthesubmissionofevidencewhentestimonyduring
the hearing indicates that it exists (or could be reduced to writing) but
is not of record." Id. at 496-97.
Review of the June 2002 hearing transcript confirms, as conceded by the
Secretary, that the hearing officer failed to fulfill his duty to fully explain the issues. Secretary's Br. at 11-12; R. at 544-74. Regarding the duty to suggest the submission of overlooked evidence, this depends on what evidence is needed to substantiate the issue. Bryant, 23 Vet.App. at 496-97. Here, the evidence
4


lacking was a nexus between the appellant's loss of teeth and his service-
connected deviated septum.
As pointed out by the Secretary, the appellant's testimony did not
indicate that evidence of medical nexus existed. Secretary'sBr.at 16-17. Rather, the appellant testified that no physician had rendered an opinion that his loss of teeth was due to his surgery. R. at 554. Pursuant to Bryant, and contrary
to the Secretary's argument (Secretary's Br. at 13), the hearing officer
erred in failing to suggest to the appellant that he should secure and submit medical evidence on the key issue of nexus Bryant, 23 Vet.App. at 499.
Having found error, the Court must determine whether any resulting error
was prejudicial to the appellant. Bryant, 23 Vet.App. at 498; 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, 444F.3d1328(
Fed.Cir. 2006).
Here, it is clear from statements of the appellant's representative at the
June 2002 hearing that the
appellant had actual knowledge that his claim was denied due to the
absence of nexus evidence
relating the loss of his teeth to his service-connected deviated septum. R.
at 553. Moreover, there
was no indication that the appellant had information to submit regarding
the issue of nexus. R. at
544-74. Accordingly, the Court holds that under the facts of this case the
hearing officer's failure
to explain the need for a nexus opinion was harmless. In addition, because
VA developed the
appellant's claimfurther,to includetheprovision of a 2007 VAexamination
thatincludedanopinion
concerning the issue of whether the appellant's maxillarytooth loss was
related to the surgery for his
service-connected deviated septum (R. at 281, 411), the appellant was not
prejudiced by the hearing
officer's failure to suggest the submission of such evidence. See Previous HitBryantNext Hit,
23 Vet.App. at 498-99; see also R. at 281, 621. Based on the foregoing, the appellant has not met his burden to demonstrate prejudicial error. See Bryant, supra; Marciniak v. Brown, 10 Vet.App. 198, 201 (1997).

III. CONCLUSION
Upon consideration of the foregoing,the submissions of the parties,
and the record on appeal,
the December 14, 2009, Board decision is AFFIRMED.
DATED: March 25, 2011
5


Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
6