Single Judge Application, Vocational Rehab., Entitlement to Full Explanation; Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011)

Excerpt from decision below: "Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highly deferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). ============= ---------------------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0425 ABDULLAH SHABAZZ, APPELLANT, V. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before HAGEL, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. HAGEL, Judge: Abdullah Shabazz appeals through counsel an October 12, 2010, Board of Veterans' Appeals (Board) decision denying entitlement to vocational rehabilitation benefits and training as a paralegal (non-lawyer legal assistant). Record (R.) at 3-16. Mr. Shabazz's Notice of Appeal was timelyand the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C. § 7252(a). The parties neither requested oral argument nor identified issues that theybelieve require a precedential decision of the Court. Because the Board's statement of reasons or bases for its decision was inadequate, the Court will vacate the October 12, 2010, Board decision and remand the matter for readjudication consistent with this decision. I. FACTS Mr. Shabazz served on active duty in the U.S. Army from May 1955 to October 1958. He currentlyhas a 20% combined disability rating for a left wrist strain and residuals of fractures of two bones of the left hand. Although all documents relevant to the claim are not contained in the record of proceedings, it appears that Mr. Shabazz has been seeking vocational rehabilitation benefits since at least 1984. Mr. Shabazz's most recent claim for vocational rehabilitation benefits began in June 2001, when he expressed interest in training to become a paralegal. However, in July 2002, a VA regional office denied Mr. Shabazz's claim for vocational rehabilitation benefits and training as a paralegal. Specifically, the regional office found that it was not reasonably feasible for Mr. Shabazz to complete a two-year paralegal certification program offered by a local community college because (1) the job outlook for certified paralegals in the local market was poor given the surplus of attorneys seeking similar employment; (2) he failed to complete previous VA vocational rehabilitation programs; and (3) "were he to complete such a program successfully, he would be 67 years of age upon program completion." R. at 2138. Mr. Shabazz filed a timely Notice of Disagreement with that decision, stating that he had been accepted into the aforementioned paralegal training program at the community college and requesting a hearing to determine whether he was entitled to "immediate financial support to meet [his] academic goal and requirements." R. at 549. He subsequently perfected his appeal. In April 2009, Mr. Shabazz was afforded a hearing before a Board member.1 At that time, Mr. Shabazz testified that he previously submitted a letter to VA from attorney Alan D. Eisenberg stating that he would hire Mr. Shabazz as a paralegal once he completed the training program. Mr. Shabazz also stated that he had another, similar letter from attorney Alfred Albertson, but that he forgot to bring it with him to the hearing. At the conclusion of the hearing, the Board member indicated that he would leave the record open for 30 days so that Mr. Shabazz could submit any additional documents that he had in his possession. However, Mr. Shabazz failed to do so. Nevertheless, in August 2009, the Board remanded his claim for further development. In January 2010, a VA vocational counselor reevaluated the feasibility of Mr. Shabazz's vocational goal of becoming a paralegal. The counselor noted that Mr. Shabazz's "interests, aptitudes[,] and abilities" were consistent with those of a paralegal and that his "general medical condition" would not "limit him physically in the usual activities of a paralegal." R. at 2481. However, the counselor also explained that Mr. Shabazz had "a troubling legal history," including 1 It is unclear from the parties' briefs and the record of proceedings why it took nearly six years to schedule the requested hearing. See R. at 549 (September 2002 Notice of Disagreement), 524-28 (March 2003 Statement of the Case), R. at 73 (references to a June 2006 Supplemental Statement of the Case, a July 2006 VA Form 9, and an October 2006 certification of the appeal to the Board), 143-84 (transcript from the April 2009 Board hearing). 2 multiple felony convictions for forgery and dealing in false securities, which made "finding gainful employment as a paralegal . . . remote at best," particularly considering the limited local job market for paralegals. R. at 2482. The counselor confirmed this hypothesis with the regional counsel at the local regional office, who stated that Mr. Shabazz's "'propensity toward not being honest' would be a barrier to securing employment in the legal arena generally, and that VA would not hire a paralegal with an extensive legal history." Id. Finally, the counselor noted that Mr. Shabazz would face "[a]dditional projected difficulties" because he had been unemployed for over 10 years, with "significant restriction on employability resulting from his age of 72." R. at 2483. Therefore, the counselor concluded that it was not reasonably feasible for Mr. Shabazz to achieve his occupational goal of obtaining employment as a certified paralegal. InOctober2010,the Board issued the decision currentlyonappeal, whichdeniedentitlement to vocational rehabilitation benefits and training as a paralegal. The Board reviewed the evidence of record and noted that, in the April 2009 Board hearing, Mr. Shabazz indicated that he "submitted to his counselor two letters from local attorneys who stated that they would hire [him] in a[n] apprenticeship program," but that "[those] letters are not of record nor have they been mentioned in VA counselor reports." R. at 11. The Board then acknowledged Mr. Shabazz's " legal history of convictions for fraud, misrepresentation, and unsatisfied judgments" and noted that "the applicable state law does permit denial of employment if the felony convictions are substantially related to the job" and that "[a] national paralegal association and the Wisconsin State Bar both support the denial of licensure as a paralegal to those convicted of crimes of moral turpitude." R. at 15-16. In light of those barriers, the Board concluded that it was not reasonably feasible for Mr. Shabazz to secure employment as a paralegal. II. ANALYSIS A. Duty To Assist Mr.Shabazz firstargues thattheBoard's determination thatVAsatisfiedits dutyto assist was clearlyerroneousbecauseVAgenerally,andtheBoardmemberspecifically, wererequiredto inform him that the attorney letters that he referenced at the April 2009 Board hearing were not in the record. The Court disagrees. 3 1. Duties of a VA Hearing Officer "Upon request, a claimant is entitled to a hearing at anytime on anyissue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]" 38 C.F.R. § 3.103(c)(1) (2011). "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 [ on appeal]." 38 C.F.R. § 3.103(c)(2). This provision "imposes . . . two distinct duties on the hearing officer . . . : The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked." Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (per curiam). These requirements are designed "'[t]o assure clarity and completeness of the hearing record.'" Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) ( 2005)); see also Bryant, 23 Vet.App. at 499. The Court notes that, on August 23, 2011, VA published a final rule " amending its hearing regulations to clarify that the provisions regarding hearings before the Agency of Original Jurisdiction do not apply to hearings before the Board of Veterans' Appeals," effective on that date. 76 Fed. Reg. 52572–75 (Aug. 23, 2011). This amendment was intended to make "clarifying changes" to reflect VA's intent to differentiate between the duties owed to claimants by hearing officers at the agency of original jurisdiction and Board members. See id. In this case, the Court need not reach the question of whether VA's recent amendment to § 3.103(c)(2) applies retroactively because, even assuming that it did not, Mr. Shabazz's arguments would lack merit. Specifically, Mr. Shabazz does not argue that the Board member failed to fully explain anyissues related to his claim, but rather asserts that the Board member failed to suggest that he submit evidence–i.e., the letters from attorneys stating that theywould hire him upon completion of his paralegal training–that was not in the record. However, the fatal flaw with this argument is that a hearing officer is onlyrequired to suggest that a claimant submit evidence that "mayhave been overlooked," not evidence that is simplymissing from the record. 38 C.F.R. § 3.103(c)(2) (emphasis added). Indeed, Mr. Shabazz concedes that § 3.103(c)(2) would not applyin his case because "[t]his situation does not involve [him] overlooking the evidence" because he was aware of the existence of the attorney letters and their importance to his claim. Appellant's Br. at 9; see R. at 153 (Mr. 4 Shabazz's testimony indicating that a vocational rehabilitation counselor previously told him to obtain such letters to substantiate his claim). Rather, Mr. Shabazz argues only that "the spir[i]t of 38 C.F.R. § 3.103(c)(2), as well as fundamental due process considerations, would requirethe Board member to suggest to him that he resubmit [the attorney letters]." Id. at 10. However, Mr. Shabazz does not cite any precedent for his argument that the Court should expand the duties of a hearing officer beyond those specificallyenumerated in § 3.103(c)(2), and the Court is unpersuaded by his vague and unsupported due process and fairness arguments. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdevelopedarguments);Brewerv.West,11Vet.App.228,236(1998)( explainingthattheCourt need not consider "mere assertions of constitutional impropriety for which [ the appellant] has not provided any legal support"). The Court therefore concludes that, even assuming that the amendment to § 3.103(c)(2) is not retroactive, Mr. Shabazz has failed to carry his burden of demonstrating that the Board member violated any duty imposed by that regulation. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant has the burden of demonstrating error), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000) ( table). 2. VA's General Duty To Obtain Records "The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary." 38 U.S.C. § 5103A(a)(1). This duty includes making " reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain." 38 U.S.C. § 5103A(b)(1). If the Secretary is unable to obtain all of the records sought, the Secretary must provide notice to the claimant that "identif[ies] the records that the Secretary was unable to obtain," "briefly explain[s] the efforts that the Secretary made to obtain those records," and "describe[s] any further action to be taken by the Secretary with respect to the claim." 38 U.S.C. § 5103A(b)(2). These requirements also apply to private documents. The Court reviews the Board's determination that VA satisfied its duty to assist under the "clearly erroneous" standard of review. Nolen v. Gober, 14 Vet.App. 183, 184 (2000). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the reviewing court on 5 the entire evidence is left with the definite and firm conviction that a mistake has been committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U. S. Gypsum Co., 333 U.S. 364, 395 (1948)). Here, Mr.Shabazz testified that he had a letterfrom attorneyAlbertson that he forgot to bring with him to the hearing, and the Board member directed that the record be held open for 30 days to allow him to submit it. Nevertheless, Mr. Shabazz did not do so. On appeal, Mr. Shabazz argues that his failure to submit the letter from attorney Albertson compelled VA to obtain it on his behalf. To accept this argument would be to impose on VA a quiescent duty to obtain records known to the claimant and within the claimant's exclusive possession that springs to life upon the claimant's inaction. However, "[t]he duty to assist is not always a one-way street" and a claimant seeking assistance "cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet.App. 190, 193 (1991). The duty to assist is just that: a requirement that VA assist the claimant in obtaining evidence to substantiate a claim, not a requirement that VA produce that evidence while the claimant rests on his laurels. Accordingly, the Court concludes that the Board's determination that VA satisfied its duty to assist Mr. Shabazz in obtaining the letter from attorney Albertson was not clearly erroneous. See Nolen, 14 Vet.App. at 184. Mr. Shabazz also testified that he had previously submitted a similar letter from attorney Eisenberg to his VA vocational rehabilitation counselor. Unlike the letter from attorney Albertson that Mr. Shabazz did not submit to VA and therefore had no reason to believe was in the record before the agency, Mr. Shabazz's testimony establishes that he believed that the letter from attorney Eisenberg was alreadyin the record and would therefore be considered bythe Board. Consequently, Mr. Shabazz argues that VA had a duty to assist him in obtaining that letter once the Board determined that it was not in the record. The Court notes that, aside from cursory references to 38 U.S.C. § 5103A( a) and (b), Mr. Shabazz does not cite any legal precedent in support of his argument. Rather, Mr. Shabazz merely asserts that "VA could easily have informed [him]" that the letter from attorney Eisenberg was not in the record before the agencyand that "[i]t is hardly an undue burden on VA to expect it to provide this minimal assistance." Appellant's Br. at 10; Appellant's Reply Br. at 4. Even assuming, as Mr. 6 Shabazz contends, that it would be "easy" for VA to review the record to determine whether it contains evidence that a claimant believes is in the record and inform the claimant of that missing evidence, Mr. Shabazz has failed to identify any statute, regulation, or legal precedent that requires VA to do so. The Court reminds Mr. Shabazz that "[t]he duty to assist is not boundless in its scope." Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Absent any citation to legal authority supporting the requested extension of the duty to assist, the Court concludes that Mr. Shabazz has failed to carry his burden of demonstrating that the Board's determination that VA satisfied its duty to assist him in obtaining the letter from attorney Eisenberg was clearly erroneous. See Nolen, 14 Vet.App. at 184; Hilkert, 12 Vet.App. at 151. The Court has made it clear that, especially in a case where the appellant is represented by an attorney, the Court is not required to address an underdeveloped argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 ( 2006); cf. Redondo- Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) (" Even during appellate review of a [dismissal for failure to state a claim], which takes place under a set of plaintiff-friendly guidelines, the reviewing court cannot be expected to 'do counsel's work, create the ossature for the argument, and put flesh on its bones.'" (quoting U.S. v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990))). The failures mentioned above place this case in that category. B. Reasons or Bases Mr. Shabazz next argues that the Board's statement of reasons or bases for its decision was inadequatebecausetheBoardfailedto considerevidencepotentiallyfavorableto his claimandfailed to explain why a barrier to employability rendered his vocational goal not reasonably feasible. The Court agrees. In rendering its decision, the Board is required to provide 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." 38 U.S.C. § 7104(d)(1). The statement must be adequate to enablea claimant to understand the precise basis for the Board's decision, as well as to facilitate review in this Court. Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the Board must analyze the credibilityand probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 7 1996) (table). The Board may commit error requiring remand when it fails to provide an adequate statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57. Although Mr. Shabazz makes numerous arguments regarding the adequacy of the Board's statement of reasons or bases, the Court is persuaded by his argument that the Board failed to consider evidence that he was performing volunteer legal work for a civil rights organization under the supervision of licensed attorneys. Specifically, Mr. Shabazz notes that there is evidence in the record indicating that he conducts legal research and drafts correspondence to clients. These tasks are similar to those routinely performed by paralegals and it appears that Mr. Shabazz's criminal history was not a barrier to his securing such employment, albeit on a volunteer basis. The Board's decision rests primarily, if not solely, on the determination that Mr. Shabazz's particular vocational goal–i.e., qualification as a paralegal–is not reasonably achievable when considering the circumstance of his previous criminal record. This finding makes the evidence that he would be hired by two lawyers and that he currently works as a paralegal on a volunteer basis particularly probative regarding the issue of whether his criminal record is a barrier to the reasonable feasibility of employment. Accordingly, this evidence is potentially favorable to Mr. Shabazz's claim and the Board, therefore, was required to consider and discuss it in determining whether his vocational goal of becoming a certified paralegal was reasonably feasible. See Caluza, 7 Vet.App. at 506. The Board's failure to do so renders its statement of reasons or bases inadequate and, therefore, the Court concludes that vacatur and remand is warranted.2 See Tucker v. West, 11 Vet.App. 369, 374 (1998); Gilbert, 1 Vet.App. at 57. Further, although the Secretary is correct that the Court reviews the Board's determination that a vocational goal is not reasonably feasible under the "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law" standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highlydeferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its 2 As noted above, Mr. Shabazz has raised other arguments relating to the Board's statement of reasons or bases for its decision. However, because the Court is remanding Mr. Shabazz's claim and the Board will necessarily render a new decision on remand, the Court need not address those arguments at this time. See Best v. Principi, 15 Vet.App. 18, 20 (2001) (per curiam order) ("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."). 8 application of the detailed VA regulations governing the award of vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would "be entitled to a full explanation . . . of the reasons or bases for the Board's decision" regarding the Secretary's discretionary appointment of a particular fiduciary). Lastly, the Board placed great importance on the opinion of VA's regional counsel that Mr. Shabazz's vocational goal of becoming a certified paralegal would not be reasonably feasible in light of his criminal record. However, this opinion is only referenced in the January 2010 VA vocational counselor's report and is not contained in the record before the agency or the record of proceedings in this appeal. Therefore, the Court concludes that the Board erred in relyingon that opinion because it did not notify Mr. Shabazz that it would consider that extrinsic evidence and did not provide him with an opportunity to submit contrary evidence or argument. See Thurber v. Brown, 5 Vet.App. 119, 126 (1993); 38 C.F.R. § 20.903 (2011). On remand, Mr. Shabazz is free to submit additional evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and, in particular, is encouraged to submit the letters from attorneys Albertson and Eisenberg if they are still in his possession. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). "A remand is meant to entail a critical examination of the justification for the decision" by the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims). III. CONCLUSION Upon consideration of the foregoing, the October 12, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision. DATED: March 27, 2012 Copies to: Daniel G. Krasnegor, Esq. VA General Counsel (027) 9