This decision provides a good analysis of what to look for when evaluationing a hearing officer's actions.
++++++++++++++++++++++
Excerpt from decision below:
In this case, the September 2006 hearing officer stated only the following in regard to his responsibility to explain the issues on appeal:
The issues for appellate consideration are as follows: Entitlement to service connection for a sinus disorder; entitlement to service connection for a skin disorder of the arms, feet and the legs; whether the evidence is sufficient to reopen a claim for entitlement to service connection for a low back disorder; and whether the evidence is sufficient to reopen a claimfor entitlement to serviceconnection for post-traumatic stress disorder. R. at 2222. There are two distinct problems with this discussion. First, this statement simply amounts to a listing of the appellant's claims and fails to indicate the basis upon which the claims were denied. Id. As a consequence, the hearing officer erred by failing to focus the discussion on the prior bases for denial as required by § 3.103(c). Bryant, 23_Vet.App. at 496. Second, the hearing officer failed to mention the issue of whether there is sufficient evidence to reopen the appellant's claim of entitlement to service connection for a psychiatric disorder other than PTSD. R. at 2222. Accordingly, the hearing officer further erred by failing to explain "fully the issues" on appeal. 38 C.F.R. § 3.103(c).
The hearing officer also erred in his discussion of evidence under § 3. 103(c). In fact, the hearing officer failed to discuss the evidence of record or to ask questions that might have uncovered whether the appellant still had evidence in his possession. R. at 2221-35.
Instead, the hearing officer's questions were mostly general in nature and appear to have focused on background information instead of on the components specifically missing from the appellant's claims. Id.
Accordingly, the hearing officer failed in his obligation under § 3.103(c) to suggest the submission of evidence on issues material to substantiating the appellant's claims. See Bryant, 23_Vet.App. at 496.
=============================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-4560
ERNEST PITTS, JR. , 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, Ernest Pitts, Jr., through counsel, appeals a November 4, 2009, Board of Veterans' Appeals (Board) decision that denied his claims
for entitlement to service connection for post-traumatic stress disorder (PTSD), a sinus disorder, and a skin disorder of the
arms, feet, and legs to include as secondary to Agent Orange exposure. Record (R.) at 3-6. The decision also determined that the appellant had failed to submit new and material evidence that would support a reopening of his claims of entitlement to service connection for a low back disorder
and a psychiatric disorder other than PTSD. Id. 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 affirm the November 4, 2009, decision.
I. RELEVANT BACKGROUND
The appellant served on active duty from May 1971 to May 1974. R. at 4. In February 2006, the Court remanded the appellant's various claims pursuant to a joint motion for remand. R. at 2202-13. In September 2006, a VA hearing officer conducted a hearing. R. at 2221-35. The Board issued
its decision in November 2009. R. at 2-26. This appeal ensued.
II. ANALYSIS
The appellant's sole argument is that the Board's decision should be remanded because the VA hearing officer at the September 18, 2006, Board hearing failed to explain the issues and suggest the submission of evidence pursuant to 38 C.F.R. § 3.103(c). Appellant's Brief (Br). at 4.
Specifically, the appellant contends that the VA hearing officer did not discuss evidentiary deficiencies concerning his requests for (1) reopening his claims of entitlement to service connection for a psychiatric disorder other than PTSD and a low back disorder on the basis of new and material
evidence; and (2) service connection for PTSD, a sinus disorder, and a skin disorder of the arms, feet, and legs, to include as secondary to Agent Orange exposure. Id. at 5.
The Secretary argues that the Court should affirm the Board's decision as the appellant was not prejudiced by any error arising from the hearing officer's duty to explain the issues or suggest the submission of evidence.
Secretary's Br. at 2. After consideration of the pleadings and cited records in this case, the Court agrees with the appellant that the hearing officer failed to perform his duties under 38 C.F.R. §_3.103(c) during the September 2006 hearing; however, the Court finds that this failure was harmless and that the Board decision should be affirmed.
A. Hearing Officer's Obligations
In this case, the Board clearly failed to comply with the requirements of 38 C.F.R. § 3.103(c) during the September 18, 2006, hearing. Under 38 C.F.R. § 3.103(c)(2) (2010): "It is the responsibility of the 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." 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."
Bryant v. Shinseki, 23 Vet.App. 488, 493-94 (2010). In regard to the duty to explain issues fully, the Court has held 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 injuryNext Document or disease in service, and the Board hearing officer's explanation and discussion should be centered on these issues.
2
Id. at 496. Furthermore, in regard to the duty to suggest the submission of overlooked evidence, the Court has held that 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. In this case, the September 2006 hearing officer stated only the following in regard to his responsibility to explain the issues on appeal:
The issues for appellate consideration are as follows: Entitlement to service connection for a sinus disorder; entitlement to service connection for a skin disorder of the arms, feet and the legs; whether the evidence is sufficient to reopen a claim for entitlement to service connection for a low back disorder; and whether the evidence is sufficient to reopen a claimfor entitlement to serviceconnection for post-traumatic stress disorder. R. at 2222. There are two distinct problems with this discussion. First, this statement simply amounts to a listing of the appellant's claims and fails to indicate the basis upon which the claims were denied. Id. As a consequence, the hearing officer erred by failing to focus the discussion on the prior bases for denial as required by § 3.103(c). Bryant, 23_Vet.App. at 496. Second, the hearing officer failed to mention the issue of whether there is sufficient evidence to reopen the appellant's claim of entitlement to service connection for a psychiatric disorder other than PTSD. R. at 2222. Accordingly, the hearing officer further erred by failing to explain "fully the issues" on appeal. 38 C.F.R. § 3.103(c).
The hearing officer also erred in his discussion of evidence under § 3. 103(c). In fact, the hearing officer failed to discuss the evidence of record or to ask questions that might have uncovered whether the appellant still had evidence in his possession. R. at 2221-35.
Instead, the hearing officer's questions were mostly general in nature and appear to have focused on background information instead of on the components specifically missing from the appellant's claims. Id.
Accordingly, the hearing officer failed in his obligation under § 3.103(c) to suggest the submission of evidence on issues material to substantiating the appellant's claims. See Bryant, 23_Vet.App. at 496.
In coming to the above conclusions, the Court does not mean to suggest that hearing officers have to engage in any pre-decisional adjudication. See id. (stating that "[b]ecause there is no requirement to preadjudicate an issue or weigh the evidence, the hearing officer's review of the
3
record in preparation for the hearing is one that should focus on the
issues that remain outstanding,
and whether evidence has been gathered as to those issues."). However, §_3.103(c) does require the
Board hearing officer to inform the appellant of the still outstanding issues relevant and material to
substantiating the claims on appeal, and further requires that he make suggestions as to the
submission of evidence if his review of the record reveals evidence to be missing as to those
outstanding issues. Bryant, supra. Here, nothing in the September 2006 hearing transcript suggests
that these obligations were met. R. at 2221-35. Accordingly, the Court concludes that the Board
failed to comply with the requirements of 38 C.F.R. § 3.103(c) during the September 18, 2006, hearing.
B. Harmless Error
Irrespective of the September 2006 hearing officer's failure to comply with 38 C.F.R. §_3.103(c), the Court nevertheless will affirm, as the error in this case
was harmless. As a matter of law, this Court is required to "take due account of the rule of prejudicial error." 38 U.S.C.
§_7261(b)(2). The Supreme Court has interpreted this requirement to mean that VA errors are to
be evaluated using the "harmless error rule" as it is applied in civil cases. Shinseki v. Sanders,
129_S.Ct. 1696, 1704 (2009). Under the harmless error rule, the appellant has the burden of
showing that his claim was prejudiced as a result of VA error. Id. at 1705-06. Therefore, if it is not
obvious to the Court that an error caused prejudice and if the appellant does not demonstrate that
he was prejudiced by an error, then any error will be considered harmless and the Board decision
must be affirmed. Id.
In this instance, the Court first notes that the appellant has failed to meet his burden of
demonstrating prejudice. See Sanders, 129 S.Ct. at 1705-06 (appellants bear the burden of demonstrating prejudice to the Court). In his brief, the appellant fails to assert precisely how he was prejudiced by any purported hearing officer error or indicate what additional evidence he would have submitted if an error had not been committed. Instead, he states that
"[i]t would be pure speculation for the Court to conclude that had the [h]earing [o]fficer complied with 38 C.F.R. § 3.103(c) the [a]ppellant would not be able to present evidence that may
result in [his] claim being granted." Appellant's Br. at 10. This argument impermissibly shifts the burden of demonstrating
a lack of harm to the Court. This is not the law. Even in the context of a hearing officer's failure to meet the requirements of § 3.103(c), the appellant still bears the burden of demonstrating
4
prejudice under the harmless error rule. See Bryant, 23 Vet.App. at 498 (applying and requiring the application of the harmless error rule under Sanders).
However, even if the appellant's pleading was adequate, the Court finds that prejudice is not present in this case because the appellant had actual knowledge of the issues and evidence material to his claims. In this regard, the Court notes that all of the appellant's claims, including his service
connection claims and claims to reopen, were previously before this Court and that during those proceedings the appellant was represented by able counsel, counsel that
achieved a favorable outcome during that litigation, which included an agreement for the collection of additional evidence on remand. See Joint Motion to Vacate and Remand, No. 05-0440 (February 02, 1996). Under such
circumstances, and where the evidence of record already composes 16 volumes (R. at 8), the Court finds that the appellant was aware of the evidentiary and legal weaknesses
of his claims prior to them being returned to the Board. See Overton v. Nicholson, 20 Vet.App. 427, 438-39 (2006)
(finding that it is proper for the Court to ascribe to appellants the knowledge and actions of their attorneys).
Ultimately, it is disingenuous for counsel to assert that the appellant was unaware of the deficiencies in his claims, after those deficiencies were thoroughly explored in the prior appeal to this Court. Therefore, a remand on the basis of insufficient notice is not warranted. See Mlechick v. Mansfield, 503 F.3d 1340, 1345 (Fed. Cir. 2007) (stating that notice errors are not prejudicial when the claimant has actual knowledge of the evidence needed to substantiate a claim); see also NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6 (1969) (stating that judicial review of an agency's action should not be converted into a "ping-pong game" where
remand is "an idle and useless formality").
5
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a review of the record, the Board's November 4, 2009, decision is AFFIRMED.
DATED: June 07, 2011
Copies to:
R. Edward Bates, Esq.
VA General Counsel (027)
6
Showing posts with label Bryant v. Shinseki. Show all posts
Showing posts with label Bryant v. Shinseki. Show all posts
Monday, June 13, 2011
Monday, April 11, 2011
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
"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
Thursday, March 17, 2011
Single Judge Application, Bryant v. Shinseki, Bryant, CFR 3.103(c), More Fully Explained
Excerpt from decision below:
"II. ANALYSIS
This case centers on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According to the regulation, [t]he purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. . . . 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.
After briefs were submitted in this case, the Court issued its opinion in Bryant v. Shinseki, 23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in Bryant noted that 38 C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1) To "explain fully the issues"; and (2) to "suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 23 Vet.App. at 492. The Court held that these duties do not require a "preadjudication" or any other weighing of evidence prior to a hearing. Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is required before the hearing officer's duty under 38 C.F.R. §3.103(c)(2) attaches, instead holding that "the hearing officer has a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim." Id. at 494-96. Specifically, "the hearing officer must suggest 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." Id. (emphasis added). The Court also made it clear that whether VA sent a notice letter as required under the VCAA has "no bearing on the duty to suggest the submission of evidence that may have been overlooked." Id."
=============================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1609
CHARLES TRIPLETT, 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 appellant, Charles Triplett, appeals through counsel
a January 15,
2009,BoardofVeterans'Appeals(Board)decisionthatdeniedhim entitlementto
serviceconnection
for post-traumatic stress disorder (PTSD), hypertension, migraines, a
heart disorder, asthma,
defective vision, and a bilateral lung disorder, and remanded his claims
for an entitlement to service
connection for a right knee disorder as secondary to the service-connected
lateral meniscal injury of
the left knee, entitlement to service connection for a back disorder as
secondary to the service-
connected lateral meniscal injury of the left knee, and entitlement to a
total disability rating for
compensation based on individual unemployability. Record of Proceedings (R
.) at 3-23. The Court
will not address the portion of the Board's decision relating to the
appellant's remanded claims
because they are not yet subject to a final Board decision and, therefore,
the Court lacks jurisdiction
to proceed. Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). 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. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will vacate the Board's decision and remand
the matter for further
proceedings consistent with this opinion.
I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from March 1983 until
April 1983 and
from October 1985 until January 1986. R. at 1320, 1342. In December 2003,
VA sent the appellant
a letter informing him of evidence that would help him substantiate his
claim. R. at 937-41.
On May1, 2006, the Board held a hearing at which the appellant testified.
R. at 658-86. The
Board member conducting the hearing asked the appellant a number of
questions, but offered no
guidance on steps the appellant could take to further advance his claims.
R. at 680-82. In September
2006, VA sent the appellant a letterindicatingwhatevidencewasrequiredto
substantiatehis claims.
R. at 638-47.
The Board, in its January15, 2009, decision here on appeal, denied the
appellant entitlement
to service connection for PTSD, hypertension, migraines, a heart disorder,
asthma, defective vision,
and a bilateral lung disorder. The Board denied the appellant's PTSD claim
because "[w]ithout a
diagnosis of PTSD, there is no basis to grant service connection." R. at
10. The Board denied the
appellant's hypertension claim because there is no evidence of
hypertension in the appellant's service
treatment records, the first indication of the disorder was not until nine
years after the appellant left
active service and thus no evidence of continuity of symptomatologyexists,
and "there is no opinion
which provides a nexus between service . . . and current hypertension." R.
at 12-13.
The Board denied the appellant's migraines claim because there is no
evidence of a current
disability. R. at 13-14. The Board denied the appellant's heart disorder
claim because "[t]here is no
evidence that the [appellant] currently has a heart disorder." R. at 14.
The Board denied the
appellant's asthma claim because service treatment records show no signs
of the disorder, the first
sign the appellant suffered from asthma was not until nine years after he
left active duty, there is no
evidence of continuityof symptomatology, and "there is no opinion which
provides a nexus between
service . . . and current asthma." R. at 16. The Board denied the
appellant's defective vision claim
because "[t]here is no suggestion in the record that a chronic, acquired
eye disability was present in
service or is otherwise related to the [appellant's] military service."
Also, the Board found that
appellant exhibited no signs of cataracts for many years after service and "
there is no suggestion in
the competent evidence that cataracts are otherwise related to military
service." R. at 17. Finally,
2
the Board denied the appellant's claim for a bilateral lung disorder
because service treatment records
show no signs of a disorder, the first indication of a disorder is not
until 11 years after service, there
is no evidence of continuity of symptomatology, and "there is no opinion
which provides a nexus
between service . . . and any current lung disorder." R. at 18.
B. Arguments on Appeal
The appellant argues that the Board failed its duty to assist him in
developing his case and,
in its decision, failed to offer an adequate statement of reasons or bases
for its failure. Appellant's
Brief (Br.) at 5-8. Specifically, he contends that it is the duty of an
officer conducting a VA hearing
to suggest that an appellant submit evidence that he "may have overlooked
and which would be of
advantage" in asserting his claim, and that the Board member, in the May 1,
2006, Board hearing,
failed to do so. Id. at 5.
The Secretary argues that there is no general duty upon a hearing officer
to "notify the
claimant of what is required yet to substantiate his claim for benefits."
Secretary's Br. at 9. The
Secretary asserts that "[t]he purpose of the hearing is not stated so as
to require VA to notify a
cla[i]mant of what is required to substantiate his claim. Notice of what
is required to substantiate
a claim is required under the regulatory scheme at other places in the
process of developing the
claim." Id. The purpose of the hearing, the Secretary asserts, is to "
provide a claimant with an
opportunity to give evidence to VA," and that any requirement of the
hearing officer to make
suggestions to the appellant is "clearly a secondary purpose of the
hearing conditioned upon the
existence of some need for the explanation, clarification or suggestion."
Id. at 10. Thus, the
Secretary argues, there must be some "trigger" for the hearing officer's
duty to make suggestions to
arise. Id. According to the Secretary, the trigger would arise during the
hearing and "indicate to the
hearing officer that there is favorable evidence in existence that a
claimant has failed thus far to
submit, or that VA has thus far failed to obtain on his behalf, before the
hearing officer has the duty
to explain." Id.
The Secretary notes that the appellant does not assert that he did not
receive adequate notice
as required under the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096
(VCAA). Id. at 12. The Secretaryargues that, under the VCAA, he is
required to notifythe claimant
how to substantiate his claim, and the VCAA letter sent in this case did
so "unequivocally." Id. at
3
12-13. Because of this, the Secretary states, any failure by the hearing
officer to fulfill his duty to
inform the appellant of additional ways to substantiate his claim was not
prejudicial. Id. at 13.
II. ANALYSIS
This casecenters on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According
to the regulation,
[t]he purpose of a hearing is to permit the claimant to introduce into the
record, in person, any available evidence which he or she considers
material and any
arguments or contentions with respect to the facts and applicable law
which he or she
may consider pertinent. . . . 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 mayhave overlooked and which would be of
advantage
to the claimant's position.
After briefs were submitted in this case, the Court issued its opinion in
Bryant v. Shinseki,
23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in
Bryant noted that 38
C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1)
To "explain fully the
issues"; and (2) to "suggest the submission of evidence which the claimant
mayhave overlooked and
which would be of advantage to the claimant's position." 23 Vet.App. at
492. The Court held that
these duties do not require a "preadjudication" or any other weighing of
evidence prior to a hearing.
Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is
required before the hearing officer's dutyunder 38 C.F.R. §3.103(c)(2)
attaches, instead holding that
"the hearing officer has a duty to fully explain the issues still
outstanding that are relevant and
material to substantiating the claim." Id. at 494-96. Specifically, "the
hearing officer must suggest
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." Id. (emphasis added). The Court also
made it clear that whether
VA sent a notice letter as required under the VCAA has "no bearing on the
duty to suggest the
submission of evidence that may have been overlooked." Id.
4
A. Duty To Fully Explain the Issues
At the outset of the appellant's hearing, the Board member conducting the
hearing stated:
The issues before us today are entitlement to service connection for [PTSD],
hypertension, migraines,heart disease,rightkneedisability,asthma,
defectivevision,
or disability exhibited by defective vision, lung disorder, back
disability secondary
to service connect, left knee disability and also entitlement to a total
disability rating
due to individual unemployability.
R. at 659. The hearing officer in Bryant began the hearing in that case
with a similar summation.
23 Vet.App. at 497. The Court in Bryant found that "[a]lthough this
statement explained the issues
in terms of the scope of the claim for benefits, it did not 'explain
fully' the outstanding issues material
to substantiating the claim." Id. The Court went on to find that the
hearing officer therefore failed
in his duty to fully explain the issues. Id.
In this case, the Court finds that the Board member also failed to
adequately explain the
issues on appeal. The Board member conducting the hearing never explained
to the appellant that
providing a medical nexus would be key for his claims of hypertension,
asthma, vision impairment,
and bilateral lung disorders, nor did he explain that providing proof of a
current disability would be
key for his claims of PTSD, migraines, and a heart disorder. Therefore,
the Court finds that the
Board member did not properly execute his duty to "explain fully the
issues in this case" during the
appellant's hearing. 38 C.F.R. § 3.103(c)(2).
B. Duty To Suggest the Submission of Evidence Possibly Overlooked
The Court in Bryant found that a hearing officer should review the record
in preparation for
a hearing and "should focus on the issues that remain outstanding, and
whether evidence has been
gathered on those issues." 23 Vet.App. at 496. Also, the hearing officer
should be "engaged in the
hearing process" because the officer is required to "suggest the
submission of evidence when
testimony during the hearing indicates that it exists." Id. at 496-97.
Finally, the Court found that
"[i]f a claim has been denied for lack of evidence of a current disability,
and no medical examination
has been provided by the Secretary or medical evidence submitted by the
appellant, then this lack
of evidence gives rise to the duty of the Board hearing officer to suggest
submission of this
evidence." Id. at 496.
5
1. PTSD and Migraines
The Board found that there exists "no medical evidence" that the appellant
has been
diagnosed with PTSD or currently suffers from migraines. R. at 10, 13-14.
The Board reviewed the
medical evidence in the record. Id. However, the appellant made a definite
statement that he had
been diagnosed and treated at VA facilities for PTSD (R. at 661) and
migraines (R. at 666-67).
Given that the existence of a current disability is of key importance in
this case, this discrepancy
between the appellant's statements and the evidence of record should have
indicated to the Board
member that there is a possibility that further evidence exists and caused
the Board member to
suggest to the appellant that he provide evidence of such diagnoses. His
failure to do so was a
breach of his duty to suggest submission of evidence possibly overlooked.
§ 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
2. Heart Condition
The Board rejected the appellant's claims for a heart disorder because of
a lack of a current
disability. R. at 14. The Board, in reaching this determination, discussed
a March 2004 VA
treatment record noting that the appellant had an arrythmia, and a May
2004 VA psychiatric record
indicating that the appellant stated he "had heart attacks in the last two
weeks related to anxiety."
Id. The Board discussed a Social Security Administration evaluation and a
private physician's
evaluation that both showed that the appellant's heart was essentially
normal. R. at 14-15. The
Board also discussed VA medical records that "have consistently noted of
the [appellant's] heart,
regular rhythm and rate without murmurs, clicks, or rubs." R. at 15. All
of this evidence, with the
exception of a portion of the VA medical records, dates to before the May
2006 hearing.
The appellant did indicate at his hearing that there is evidence to
support his claim from
Provident Hospital dating to 1992 and 1993. R. at 667. The July 2005 SOC
indicates that the
earliest records VA had obtained from Provident Hospital date to September
1994. R. at 729. The
Board does not discuss records from an earlier date, and the Board member
does not recommend
they be submitted. The hearing testimony suggests that record evidence
exists but is not in the
record. Therefore, the Board member should have suggested to the appellant
that such evidence be
submitted. See 38 C.F.R. § 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
See 38 C.F.R.
6
3. Hypertension, Asthma, Eye, and Lung Conditions
Regarding the appellant's claims for hypertension, asthma, an eye disorder,
and a bilateral
lung disorder, the Board found in each case that there is no opinion that
provides a nexus between
service and the diagnosed condition. R. at 13, 14, 17, 18. The 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. To
do so would ignore the
regulatory mandate to advise the claimant to submit evidence that might
have been overlooked."
Bryant, 23 Vet.App. at 493-94.
The Court finds that the lack of evidence of record indicating a nexus
between these
conditions and the appellant's service indicates "the possibility that
evidence had been overlooked,
and the Board hearing officer should have suggested that the appellant
secure and submit this
evidence if he could; the hearing officer's failure to do so was error."
Id. at 498.
C. Prejudicial Error
The Secretaryargues that any finding by the Court that the Board member
failed to fulfill his
duties under 38 C.F.R. § 3.103(c)(2) is not prejudicial error because the
appellant received adequate
notice of the evidence required to substantiate his claims in VCAA notice
mailings he received.
Secretary's Br. at 12-13. This Court is required to "take due account of
the rule of prejudicial error."
38 U.S.C. § 7261(b)(2); see also Shinseki v. Sanders, 129 S. Ct. 1696,
1704 (2009) (noting that the
statute requiring this Court to "take due account of prejudicial error []
requires the Veterans Court
to apply the same kind of 'harmless error' rule that courts ordinarily
apply in civil cases"). "The key
to determining whether an error is prejudicial is the effect of the error
on the essential fairness of the
adjudication." Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005), rev'd
on other grounds, 444
F.3d 1328 (Fed. Cir. 2006).
The Court finds that the fact the appellant received VCAA notice
mailings does not render the error in this case harmless. The appellant in
Bryant received "multiple
letters" from VA explaining the evidence required to substantiate his
claims. 23 Vet.App. at 490.
However, the Court in Bryant expressly found that the issuance of VCAA
notice "has no bearing on
the duty to suggest the submission of evidence that may have been
overlooked." Id. at 497. The
Court found that "to hold the failure of a hearing officer to suggest the
submission of evidence that
might have been overlooked is rendered nonprejudicial simply because the
claimant had been
7
provided preadjudicatory notice of what was needed to substantiate the
claim would eviscerate the
dutyimposed" on the hearing officer. Id. at 498. The Court, following the
reasoning in Bryant, finds
that the existence of VCAA notice mailings in this case does not mitigate
the Board member's error.
However, the error in this case may be harmless for other reasons.
1. Claims Denied Because of Lack of Evidence of Current Disability
Though the Court has found error in the Board member's handling of the
appellant's PTSD,
migraine, and heart condition claims, the Court must "read the entire
record" when determining
whether the error is prejudicial. Sanders, 129 S. Ct. at 1705. Regarding
the appellant's PTSD claim,
the Secretary obtained a VA psychiatric report as well as records from the
Jesse Brown VA Medical
Center where the appellant claimed he was diagnosed with PTSD. R. at 10,
729. The appellant
offered no additional evidence. Similarly, as to the appellant's heart
condition, the Board considered
numerous medical documents, including documents that supported the
appellant's claim of a current
disability. R. at 14-15. The Secretary also obtained records from
Provident Hospital. R. at 729.
The records that the Board member failed to suggest the appellant submit
are almost two decades
old, and their importance is questionable given that the keyissue is
whetheracurrentdisabilityexists
and that the Board analyzed several medical records from a later date.
Regarding the appellant's
PTSD and heart claims, the Court finds the Secretaryfully developed the
claims, and thus the Board
member's failure to explain the material issues or suggest the submission
of evidence possibly
overlooked did not impact the fairness of the adjudication and thus was
harmless. See 38 U.S.C.
§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
The appellant offers no
evidence to the contrary. Sanders, 129 S. Ct. at 1706 (holding that the
appellant generally bears the
burden of demonstrating prejudicial error on appeal).
Regarding the appellant's migraine claim, however, the Court finds that
the Board member's
error was prejudicial. The Board, in determining that a current disability
does not exist, analyzed
a single private medical record that is more than a decade old. R. at 13.
The Board relied on no VA
medical records to make its decision, and there is no evidence that the
appellant's assertions that VA
medical record exists were investigated. Given the lack of evidence of
record, the Board member's
failure to explain the issues and suggest the submission of additional
evidence that may have been
overlooked did impact the fairness of the adjudication, and was thus
prejudicial. See 38 U.S.C.
8
§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
2. Claims Denied for Lack of a Medical Nexus
Theappellant's claimsforhypertension, asthma, an eye disorder, and
abilateral lungdisorder
were all denied because of a lack of a medical nexus between his
disability and an Previous HitinjuryNext Document in service.
R. at 13, 14, 17, 18. The appellant argues, persuasively, that had he been
made aware of the need
to submit additional evidence, "he may very well have done so."
Appellant's Br. at 8. The Court
finds that the Board member's failure to explain that nexus was the
keyissue in the casecoupled with
his failure to suggest submission of a nexus opinion affected the
fundamental fairness of the
adjudication, and was thus prejudicial. See 38 U.S.C. § 7261(b)(2);
Sanders, 129 S. Ct. at 1705;
Mayfield, 19 Vet.App. at 116.
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 determination,
or where the record is
otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). On
remand, the Board should
provide the appellant a hearing at which the hearing officer properly
discharges his duties under 38
C.F.R. § 3.103(c)(2).
Finally, the Court notes that on remand, the appellant is free to submit
additional evidence
and argument on the remanded matters, and the Board is required to
consider any such 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).
9
III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's January 15, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: March 11. 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
10
"II. ANALYSIS
This case centers on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According to the regulation, [t]he purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. . . . 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.
After briefs were submitted in this case, the Court issued its opinion in Bryant v. Shinseki, 23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in Bryant noted that 38 C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1) To "explain fully the issues"; and (2) to "suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position." 23 Vet.App. at 492. The Court held that these duties do not require a "preadjudication" or any other weighing of evidence prior to a hearing. Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is required before the hearing officer's duty under 38 C.F.R. §3.103(c)(2) attaches, instead holding that "the hearing officer has a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim." Id. at 494-96. Specifically, "the hearing officer must suggest 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." Id. (emphasis added). The Court also made it clear that whether VA sent a notice letter as required under the VCAA has "no bearing on the duty to suggest the submission of evidence that may have been overlooked." Id."
=============================================
----------------------------------------------------
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-1609
CHARLES TRIPLETT, 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 appellant, Charles Triplett, appeals through counsel
a January 15,
2009,BoardofVeterans'Appeals(Board)decisionthatdeniedhim entitlementto
serviceconnection
for post-traumatic stress disorder (PTSD), hypertension, migraines, a
heart disorder, asthma,
defective vision, and a bilateral lung disorder, and remanded his claims
for an entitlement to service
connection for a right knee disorder as secondary to the service-connected
lateral meniscal injury of
the left knee, entitlement to service connection for a back disorder as
secondary to the service-
connected lateral meniscal injury of the left knee, and entitlement to a
total disability rating for
compensation based on individual unemployability. Record of Proceedings (R
.) at 3-23. The Court
will not address the portion of the Board's decision relating to the
appellant's remanded claims
because they are not yet subject to a final Board decision and, therefore,
the Court lacks jurisdiction
to proceed. Howard v. Gober, 220 F.3d 1341, 1344 (Fed. Cir. 2000). 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. Frankel v. Derwinski, 1 Vet.App.
23, 25-26 (1990). For the
following reasons, the Court will vacate the Board's decision and remand
the matter for further
proceedings consistent with this opinion.
I. BACKGROUND
A. Facts
The appellant served on active duty in the U.S. Army from March 1983 until
April 1983 and
from October 1985 until January 1986. R. at 1320, 1342. In December 2003,
VA sent the appellant
a letter informing him of evidence that would help him substantiate his
claim. R. at 937-41.
On May1, 2006, the Board held a hearing at which the appellant testified.
R. at 658-86. The
Board member conducting the hearing asked the appellant a number of
questions, but offered no
guidance on steps the appellant could take to further advance his claims.
R. at 680-82. In September
2006, VA sent the appellant a letterindicatingwhatevidencewasrequiredto
substantiatehis claims.
R. at 638-47.
The Board, in its January15, 2009, decision here on appeal, denied the
appellant entitlement
to service connection for PTSD, hypertension, migraines, a heart disorder,
asthma, defective vision,
and a bilateral lung disorder. The Board denied the appellant's PTSD claim
because "[w]ithout a
diagnosis of PTSD, there is no basis to grant service connection." R. at
10. The Board denied the
appellant's hypertension claim because there is no evidence of
hypertension in the appellant's service
treatment records, the first indication of the disorder was not until nine
years after the appellant left
active service and thus no evidence of continuity of symptomatologyexists,
and "there is no opinion
which provides a nexus between service . . . and current hypertension." R.
at 12-13.
The Board denied the appellant's migraines claim because there is no
evidence of a current
disability. R. at 13-14. The Board denied the appellant's heart disorder
claim because "[t]here is no
evidence that the [appellant] currently has a heart disorder." R. at 14.
The Board denied the
appellant's asthma claim because service treatment records show no signs
of the disorder, the first
sign the appellant suffered from asthma was not until nine years after he
left active duty, there is no
evidence of continuityof symptomatology, and "there is no opinion which
provides a nexus between
service . . . and current asthma." R. at 16. The Board denied the
appellant's defective vision claim
because "[t]here is no suggestion in the record that a chronic, acquired
eye disability was present in
service or is otherwise related to the [appellant's] military service."
Also, the Board found that
appellant exhibited no signs of cataracts for many years after service and "
there is no suggestion in
the competent evidence that cataracts are otherwise related to military
service." R. at 17. Finally,
2
the Board denied the appellant's claim for a bilateral lung disorder
because service treatment records
show no signs of a disorder, the first indication of a disorder is not
until 11 years after service, there
is no evidence of continuity of symptomatology, and "there is no opinion
which provides a nexus
between service . . . and any current lung disorder." R. at 18.
B. Arguments on Appeal
The appellant argues that the Board failed its duty to assist him in
developing his case and,
in its decision, failed to offer an adequate statement of reasons or bases
for its failure. Appellant's
Brief (Br.) at 5-8. Specifically, he contends that it is the duty of an
officer conducting a VA hearing
to suggest that an appellant submit evidence that he "may have overlooked
and which would be of
advantage" in asserting his claim, and that the Board member, in the May 1,
2006, Board hearing,
failed to do so. Id. at 5.
The Secretary argues that there is no general duty upon a hearing officer
to "notify the
claimant of what is required yet to substantiate his claim for benefits."
Secretary's Br. at 9. The
Secretary asserts that "[t]he purpose of the hearing is not stated so as
to require VA to notify a
cla[i]mant of what is required to substantiate his claim. Notice of what
is required to substantiate
a claim is required under the regulatory scheme at other places in the
process of developing the
claim." Id. The purpose of the hearing, the Secretary asserts, is to "
provide a claimant with an
opportunity to give evidence to VA," and that any requirement of the
hearing officer to make
suggestions to the appellant is "clearly a secondary purpose of the
hearing conditioned upon the
existence of some need for the explanation, clarification or suggestion."
Id. at 10. Thus, the
Secretary argues, there must be some "trigger" for the hearing officer's
duty to make suggestions to
arise. Id. According to the Secretary, the trigger would arise during the
hearing and "indicate to the
hearing officer that there is favorable evidence in existence that a
claimant has failed thus far to
submit, or that VA has thus far failed to obtain on his behalf, before the
hearing officer has the duty
to explain." Id.
The Secretary notes that the appellant does not assert that he did not
receive adequate notice
as required under the Veterans Claims Assistance Act of 2000, Pub. L. No.
106-475, 114 Stat. 2096
(VCAA). Id. at 12. The Secretaryargues that, under the VCAA, he is
required to notifythe claimant
how to substantiate his claim, and the VCAA letter sent in this case did
so "unequivocally." Id. at
3
12-13. Because of this, the Secretary states, any failure by the hearing
officer to fulfill his duty to
inform the appellant of additional ways to substantiate his claim was not
prejudicial. Id. at 13.
II. ANALYSIS
This casecenters on competing interpretations of 38 C.F.R. § 3.103(c)(2) (
2010). According
to the regulation,
[t]he purpose of a hearing is to permit the claimant to introduce into the
record, in person, any available evidence which he or she considers
material and any
arguments or contentions with respect to the facts and applicable law
which he or she
may consider pertinent. . . . 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 mayhave overlooked and which would be of
advantage
to the claimant's position.
After briefs were submitted in this case, the Court issued its opinion in
Bryant v. Shinseki,
23 Vet.App. 488 (2010), addressing 38 C.F.R. § 3.103(c)(2). The Court in
Bryant noted that 38
C.F.R. § 3.103(c)(2) imposes two distinct duties on a hearing officer: (1)
To "explain fully the
issues"; and (2) to "suggest the submission of evidence which the claimant
mayhave overlooked and
which would be of advantage to the claimant's position." 23 Vet.App. at
492. The Court held that
these duties do not require a "preadjudication" or any other weighing of
evidence prior to a hearing.
Id. at 493.
The Court in Bryant also rejected the Secretary's argument that some sort
of "trigger" is
required before the hearing officer's dutyunder 38 C.F.R. §3.103(c)(2)
attaches, instead holding that
"the hearing officer has a duty to fully explain the issues still
outstanding that are relevant and
material to substantiating the claim." Id. at 494-96. Specifically, "the
hearing officer must suggest
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." Id. (emphasis added). The Court also
made it clear that whether
VA sent a notice letter as required under the VCAA has "no bearing on the
duty to suggest the
submission of evidence that may have been overlooked." Id.
4
A. Duty To Fully Explain the Issues
At the outset of the appellant's hearing, the Board member conducting the
hearing stated:
The issues before us today are entitlement to service connection for [PTSD],
hypertension, migraines,heart disease,rightkneedisability,asthma,
defectivevision,
or disability exhibited by defective vision, lung disorder, back
disability secondary
to service connect, left knee disability and also entitlement to a total
disability rating
due to individual unemployability.
R. at 659. The hearing officer in Bryant began the hearing in that case
with a similar summation.
23 Vet.App. at 497. The Court in Bryant found that "[a]lthough this
statement explained the issues
in terms of the scope of the claim for benefits, it did not 'explain
fully' the outstanding issues material
to substantiating the claim." Id. The Court went on to find that the
hearing officer therefore failed
in his duty to fully explain the issues. Id.
In this case, the Court finds that the Board member also failed to
adequately explain the
issues on appeal. The Board member conducting the hearing never explained
to the appellant that
providing a medical nexus would be key for his claims of hypertension,
asthma, vision impairment,
and bilateral lung disorders, nor did he explain that providing proof of a
current disability would be
key for his claims of PTSD, migraines, and a heart disorder. Therefore,
the Court finds that the
Board member did not properly execute his duty to "explain fully the
issues in this case" during the
appellant's hearing. 38 C.F.R. § 3.103(c)(2).
B. Duty To Suggest the Submission of Evidence Possibly Overlooked
The Court in Bryant found that a hearing officer should review the record
in preparation for
a hearing and "should focus on the issues that remain outstanding, and
whether evidence has been
gathered on those issues." 23 Vet.App. at 496. Also, the hearing officer
should be "engaged in the
hearing process" because the officer is required to "suggest the
submission of evidence when
testimony during the hearing indicates that it exists." Id. at 496-97.
Finally, the Court found that
"[i]f a claim has been denied for lack of evidence of a current disability,
and no medical examination
has been provided by the Secretary or medical evidence submitted by the
appellant, then this lack
of evidence gives rise to the duty of the Board hearing officer to suggest
submission of this
evidence." Id. at 496.
5
1. PTSD and Migraines
The Board found that there exists "no medical evidence" that the appellant
has been
diagnosed with PTSD or currently suffers from migraines. R. at 10, 13-14.
The Board reviewed the
medical evidence in the record. Id. However, the appellant made a definite
statement that he had
been diagnosed and treated at VA facilities for PTSD (R. at 661) and
migraines (R. at 666-67).
Given that the existence of a current disability is of key importance in
this case, this discrepancy
between the appellant's statements and the evidence of record should have
indicated to the Board
member that there is a possibility that further evidence exists and caused
the Board member to
suggest to the appellant that he provide evidence of such diagnoses. His
failure to do so was a
breach of his duty to suggest submission of evidence possibly overlooked.
§ 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
2. Heart Condition
The Board rejected the appellant's claims for a heart disorder because of
a lack of a current
disability. R. at 14. The Board, in reaching this determination, discussed
a March 2004 VA
treatment record noting that the appellant had an arrythmia, and a May
2004 VA psychiatric record
indicating that the appellant stated he "had heart attacks in the last two
weeks related to anxiety."
Id. The Board discussed a Social Security Administration evaluation and a
private physician's
evaluation that both showed that the appellant's heart was essentially
normal. R. at 14-15. The
Board also discussed VA medical records that "have consistently noted of
the [appellant's] heart,
regular rhythm and rate without murmurs, clicks, or rubs." R. at 15. All
of this evidence, with the
exception of a portion of the VA medical records, dates to before the May
2006 hearing.
The appellant did indicate at his hearing that there is evidence to
support his claim from
Provident Hospital dating to 1992 and 1993. R. at 667. The July 2005 SOC
indicates that the
earliest records VA had obtained from Provident Hospital date to September
1994. R. at 729. The
Board does not discuss records from an earlier date, and the Board member
does not recommend
they be submitted. The hearing testimony suggests that record evidence
exists but is not in the
record. Therefore, the Board member should have suggested to the appellant
that such evidence be
submitted. See 38 C.F.R. § 3.103(c)(2); Bryant, 23 Vet.App. at 496-97.
See 38 C.F.R.
6
3. Hypertension, Asthma, Eye, and Lung Conditions
Regarding the appellant's claims for hypertension, asthma, an eye disorder,
and a bilateral
lung disorder, the Board found in each case that there is no opinion that
provides a nexus between
service and the diagnosed condition. R. at 13, 14, 17, 18. The 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. To
do so would ignore the
regulatory mandate to advise the claimant to submit evidence that might
have been overlooked."
Bryant, 23 Vet.App. at 493-94.
The Court finds that the lack of evidence of record indicating a nexus
between these
conditions and the appellant's service indicates "the possibility that
evidence had been overlooked,
and the Board hearing officer should have suggested that the appellant
secure and submit this
evidence if he could; the hearing officer's failure to do so was error."
Id. at 498.
C. Prejudicial Error
The Secretaryargues that any finding by the Court that the Board member
failed to fulfill his
duties under 38 C.F.R. § 3.103(c)(2) is not prejudicial error because the
appellant received adequate
notice of the evidence required to substantiate his claims in VCAA notice
mailings he received.
Secretary's Br. at 12-13. This Court is required to "take due account of
the rule of prejudicial error."
38 U.S.C. § 7261(b)(2); see also Shinseki v. Sanders, 129 S. Ct. 1696,
1704 (2009) (noting that the
statute requiring this Court to "take due account of prejudicial error []
requires the Veterans Court
to apply the same kind of 'harmless error' rule that courts ordinarily
apply in civil cases"). "The key
to determining whether an error is prejudicial is the effect of the error
on the essential fairness of the
adjudication." Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005), rev'd
on other grounds, 444
F.3d 1328 (Fed. Cir. 2006).
The Court finds that the fact the appellant received VCAA notice
mailings does not render the error in this case harmless. The appellant in
Bryant received "multiple
letters" from VA explaining the evidence required to substantiate his
claims. 23 Vet.App. at 490.
However, the Court in Bryant expressly found that the issuance of VCAA
notice "has no bearing on
the duty to suggest the submission of evidence that may have been
overlooked." Id. at 497. The
Court found that "to hold the failure of a hearing officer to suggest the
submission of evidence that
might have been overlooked is rendered nonprejudicial simply because the
claimant had been
7
provided preadjudicatory notice of what was needed to substantiate the
claim would eviscerate the
dutyimposed" on the hearing officer. Id. at 498. The Court, following the
reasoning in Bryant, finds
that the existence of VCAA notice mailings in this case does not mitigate
the Board member's error.
However, the error in this case may be harmless for other reasons.
1. Claims Denied Because of Lack of Evidence of Current Disability
Though the Court has found error in the Board member's handling of the
appellant's PTSD,
migraine, and heart condition claims, the Court must "read the entire
record" when determining
whether the error is prejudicial. Sanders, 129 S. Ct. at 1705. Regarding
the appellant's PTSD claim,
the Secretary obtained a VA psychiatric report as well as records from the
Jesse Brown VA Medical
Center where the appellant claimed he was diagnosed with PTSD. R. at 10,
729. The appellant
offered no additional evidence. Similarly, as to the appellant's heart
condition, the Board considered
numerous medical documents, including documents that supported the
appellant's claim of a current
disability. R. at 14-15. The Secretary also obtained records from
Provident Hospital. R. at 729.
The records that the Board member failed to suggest the appellant submit
are almost two decades
old, and their importance is questionable given that the keyissue is
whetheracurrentdisabilityexists
and that the Board analyzed several medical records from a later date.
Regarding the appellant's
PTSD and heart claims, the Court finds the Secretaryfully developed the
claims, and thus the Board
member's failure to explain the material issues or suggest the submission
of evidence possibly
overlooked did not impact the fairness of the adjudication and thus was
harmless. See 38 U.S.C.
§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
The appellant offers no
evidence to the contrary. Sanders, 129 S. Ct. at 1706 (holding that the
appellant generally bears the
burden of demonstrating prejudicial error on appeal).
Regarding the appellant's migraine claim, however, the Court finds that
the Board member's
error was prejudicial. The Board, in determining that a current disability
does not exist, analyzed
a single private medical record that is more than a decade old. R. at 13.
The Board relied on no VA
medical records to make its decision, and there is no evidence that the
appellant's assertions that VA
medical record exists were investigated. Given the lack of evidence of
record, the Board member's
failure to explain the issues and suggest the submission of additional
evidence that may have been
overlooked did impact the fairness of the adjudication, and was thus
prejudicial. See 38 U.S.C.
8
§ 7261(b)(2); Sanders, 129 S. Ct. at 1705; Mayfield, 19 Vet.App. at 116.
2. Claims Denied for Lack of a Medical Nexus
Theappellant's claimsforhypertension, asthma, an eye disorder, and
abilateral lungdisorder
were all denied because of a lack of a medical nexus between his
disability and an Previous HitinjuryNext Document in service.
R. at 13, 14, 17, 18. The appellant argues, persuasively, that had he been
made aware of the need
to submit additional evidence, "he may very well have done so."
Appellant's Br. at 8. The Court
finds that the Board member's failure to explain that nexus was the
keyissue in the casecoupled with
his failure to suggest submission of a nexus opinion affected the
fundamental fairness of the
adjudication, and was thus prejudicial. See 38 U.S.C. § 7261(b)(2);
Sanders, 129 S. Ct. at 1705;
Mayfield, 19 Vet.App. at 116.
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 determination,
or where the record is
otherwise inadequate." Tucker v. West, 11 Vet.App. 369, 374 (1998). On
remand, the Board should
provide the appellant a hearing at which the hearing officer properly
discharges his duties under 38
C.F.R. § 3.103(c)(2).
Finally, the Court notes that on remand, the appellant is free to submit
additional evidence
and argument on the remanded matters, and the Board is required to
consider any such 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).
9
III. CONCLUSION
After consideration of the appellant's and Secretary's pleadings, and a
review of the record,
the Board's January 15, 2009, decision is VACATED and the matter is
REMANDED to the Board
for further proceedings consistent with this decision.
DATED: March 11. 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
10
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