Veteranclaims’s Blog

October 27, 2010

Single Judge Decision, Citing Bryant v. Shinseki, Hearing Officer’s Duties

We are providing single Judge decisions related to Bryant v. Shinseki, because of the importance of this decision and as a way for you to understand how the various Judges at the U.C. Court Appeals for Veterans Claims are interpreting and applying it.

It seems clear that very veteran, in light of Bryant v. Shinseki, needs to request a hearing and since this can be done at any time, now is the time to do it. If you have already received an unfavorable RO decision, then retain an attorney and request a hearing.

“Under 38C.F.R.§3.103(c)(2)(2010),”[i]t is the responsibility of the employee or employees conducting the [Board] 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.” 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.” Bryant v. Shinseki, 23 Vet.App. 488, 493-94 (2010) (per curiam). In regard to the duty to suggest the submission of overlooked evidence, the Court stated 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. If the hearing officer failed to fulfill his duties, the Court must determine whether any resulting error was prejudicial to the appellant. Id. at 497-98; see 38 U.S.C. § 7261(b)(2) (providing that the Court shall take due account of the rule of prejudicial error); Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005) (stating that the key to determining whether an error is prejudicial is the effect of the error on the essential fairness of the adjudication), rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The receipt of proper notice under 38 U.S.C. § 5103(a) does not render error under 38 C.F.R. § 3.103(c)(2) nonprejudicial. Bryant, 23 Vet.App.
4
at 498.”
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U.S. Court of Appeals for Veterans Claims

—————————————————-

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 08-2872
EMORY G. HICKS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before MOORMAN, Judge.
MEMORANDUM DECISION

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

MOORMAN, Judge: The appellant, Emory G. Hicks, through counsel seeks
review of the Board of Veterans’ Appeals’ (Board) May15, 2008, decision
denying entitlement to an effective date earlier than August 5, 2002, for service-connected bilateral sensorineural hearing loss. Record (R.) at 3-8. 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. See Frankel v.
Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below,
the Court will vacate the
Board’s May 2008 decision and remand the matter for further proceedings
consistent with this
decision.
I. BACKGROUND
Mr. Hicks served on active duty with the U.S. Air Force from October 1961
to August 1962.
R. at 405. His discharge from service was a result of a VA medical
examination concluding that he
“should not have been placed on active duty” because of his hearing
disability. R. at 379-82, 405.
On August 5, 2002, Mr. Hicks filed his claim with VA for compensation for
hearing loss and
tinnitus. R. at 327-28. In a January 2003 rating decision, a VA regional
office (RO) denied service
connection for bilateral hearing loss and tinnitus. R. at 252. In a May
2004 rating decision, the RO

granted service connection for bilateral sensorineural hearing loss at
100% disabling because the
condition, which pre-existed his military service, permanently worsened as
a result of service. R.
at 224-29. In that decision, the RO also granted special monthly
compensation for deafness and
service connection for tinnitus rated as 10% disabling. Id.
InAugust 2004,Mr.HicksfiledaNoticeofDisagreement (NOD) seeking an earlier
effective
date for his bilateral sensorineural hearing loss. R. at 192. He also
submitted a statement in support
of claim along with a letter from his doctor indicating he had hearing
loss as far back as 1972. R.
at 177-79. The RO issued a Statement of the Case (SOC) in March 2005
declining to grant an earlier
effective date for Mr. Hicks’s bilateral sensorineural hearing loss. R. at
165. Mr. Hicks then
perfected his Substantive Appeal to the Board. R. at 146. In February 2007,
Mr. Hicks submitted
a statement in support of claim to which he attached a letter stating “I
did not apply until August 5,
2002 after a friend of mine kept insisting that I should.” R. at 64-66.
During a September 2007
personal hearing, Mr. Hicks stated that upon his discharge from the
Maxwell Air Force Base
Hospital:
the administration there told me that there was no need in me applying for
disability
because I wasn’t eligible for any disability, and so went all these years
not thinking
that I was eligible for any disability for my hearing loss. Then later on
a friend of
mine said you need to go file . . . so I did because all these years have
gone by during
that time
R. at 44. The May 15, 2008, Board decision here on appeal denied
entitlement to an effective date
earlier than August 5, 2002, for Mr. Hicks’s service-connected bilateral
sensorineural hearing loss.
II. ANALYSIS
The appellant argues that VA failed in its duty to assist by not acquiring
service personnel
records associated with his claim. App. Br. at 6-10. Specifically, the
appellant asserts that these
records are relevant because they “would have conclusively shown whether [
he] filed a claim for
compensation at separation or shortly thereafter, or whether he
specifically declined to do so.”
Appellant’s Br. at 7. The Secretary responds that VA did not need to
obtain those records to satisfy
its duty to assist because the records are not relevant as shown by the
appellant’s own assertion that
he did not file a claim for compensation until 2002. Secretary’s Br. at 5-
8.
2

VA’s duty to assist includes making “reasonable efforts to assist a
claimant in obtaining
evidence necessaryto substantiate the claimant’s claim for a benefit.” 38
U.S.C. § 5103A(a)(1). VA
is not required to assist a claimant in obtaining identified records “if
no reasonable possibility exists
that such assistance would aid in substantiating the claim.” 38 U.S.C. §
5103A(a)(2); see Golz v.
Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). “The duty to assist is not
boundless in its scope”
and “not all medical records or all SSA [(Social Security Administration)]
disability records must
be sought–only those that are relevant to the veteran’s claim.” Id. at
1320 (emphasis added).
“Relevant records for the purpose of [section] 5103A are those records
that relate to the injury for
which the claimant is seeking benefits and have a reasonable possibility
of helping to substantiate
the veteran’s claim.” Id. At 1321; see, e.g., Moore v. Shinseki, 555 F.3d
1369, 1374 (Fed. Cir. 2009)
(stating that “VA is statutorilyrequired to obtain all of theveteran’s
relevant service medical records,
not simply those which it can most conveniently locate”); McGee v. Peake,
511 F.3d 1352, 1358
(Fed. Cir. 2008) (finding that the veteran’s service personnel records at
issue “would likely contain
documentary evidence that may show whether McGee filed a claim for
benefits prior to discharge”
after the Board denied entitlement to an earlier effective date because
the record did not contain any
evidence of a previously filed claim).
The appellant argues that his service medical records are relevant because
they would have
shown whether or not the Air Force complied with 10 U.S.C. § 1218 prior
to his discharge.
Appellant’s Br. at 5-7 (citing McGee, 511 F.3d 1352). The appellant
further argues that “[w]hile [he]
now recounts that he did not applyfor serviceconnection [duringservice] (R
[.] at 23-24), the Record
also reflects that he is now 74 years old and is attempting to remember
facts that occured more than
four decades ago.” Id. at 7. Section 1218 mandates that a service member
may not be discharged
from service as a result of a disability until he has made, or refused to
make, a claim for
compensation, or signed a statement that his right to make such a claim
has been explained to him
or refused to sign such a statement. 10 U.S.C. § 1218. The United States
Court of Appeals for the
Federal Circuit (Federal Circuit) determined, in McGee, that the Board was
obligated to consider
§ 1218 in reaching its decision of whether or not to assign an earlier
effective date. See McGee,
511 F.3d at 1358 (“[Section] 1218 is not applicable to McGee’s claim
because it is dispositive; it is
applicable because it is relevant.”). The Board reviewed the appellant’s
repeated statements that he
3

never filed a claim until 2002 and determined that “remanding to obtain
service personnel records
is not necessary and would offer no reasonable possibility of
substantiating the claim, because the
veteran clearly stated at his March 2008 Board hearing that he filed no
claim prior to August 2002.”
R. at 7.
Since its creation, the Court has struggled with refining a precise
definition of a claim; it has
seen a great many cases in which veterans have not understood the
difference between VA claims
and claims for service-connected disabilities. During the March 2008 Board
hearing, the hearing
officer expressed his concern over the appellant’s understanding of what
he had been told and noted
that he found it “unsettling at the least” that the appellant was errantly
advised that he was not
eligible for VA benefits. R. at 17. The hearing officer went on to state
that he would “look at
everything before I make a decision and see if there is any provision that
allows me to grant what
you’re asking for.” R. at 18-19. Yet, a service record, which addresses
all of these concerns, should
be in existence pursuant to 10 U.S.C. § 1218, and no attempt has been
made to review it.
Under38C.F.R.§3.103(c)(2)(2010),”[i]t
istheresponsibilityoftheemployeeoremployees
conducting the [Board] 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.” 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.”
BryantNext Hit v. Shinseki,
23 Vet.App. 488, 493-94 (2010) (per curiam). In regard to the duty to
suggest the submission of
overlooked evidence, the Court stated 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. If the hearing officer failed to
fulfill his duties, the Court must
determine whether any resulting error was prejudicial to the appellant. Id.
at 497-98; see 38 U.S.C.
§ 7261(b)(2) (providing that the Court shall take due account of the rule
of prejudicial error);
Mayfield v. Nicholson, 19 Vet.App. 103, 116 (2005) (stating that the key
to determining whether an
error is prejudicial is the effect of the error on the essential fairness
of the adjudication), rev’d on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The receipt of proper
notice under 38 U.S.C.
§ 5103(a) does not render error under 38 C.F.R. § 3.103(c)(2)
nonprejudicial. Previous HitBryantNext Document, 23 Vet.App.
4

at 498. “Rather, theassessment of prejudice generallyis case specific,
demonstrated bythe appellant
and based on the record.” Id.
The Board hearing officer never suggested to the appellant that the Air
Force was required
by law to produce some documentation of whether or not he ever applied for
benefits as a result of
being discharged for his hearing disability. The hearing officer’s failure
to inform the appellant of
documentation that exists in his personnel records, assuming the Air
Force’s compliance with the
law, necessarily prejudiced the appellant because he is arguing for an
earlier effective date based on
a disability that was the precipitating event for his discharge. See
Raugust v. Shinseki, 23 Vet.App.
475, 479 (2010), (“[Section 1218] require[s] that a claim either be
submitted or waived.”). The
Court notes that any documentation in the appellant’s service personnel
records created pursuant to
10 U.S.C. § 1218 may reveal that the appellant was informed of his right
to apply for disability
compensation but that he declined. However, the Board hearing officer’s
failure to inform the
appellant of this relevant and potentially dispositive evidence is a
failure of the VA’s duty to assist
and deprives the Board of all potentially material evidence in reaching it
decision. See 38 U.S.C.
§ 5103A(b)(3) (where relevant records are sought, “the efforts to obtain
those records shall continue
until the records are obtained unless it is reasonably certain that such
records do not exist or that
further efforts to obtain those records would be futile.”).
Thus, the Court will remand the issue of the appellant’s request for an
earlier effective date
for service connection for his bilateral sensorineural hearing loss. On
remand, the Board is directed
to obtain the appellant’s service personnel records. The appellant is free
to submit additional
evidence and raise his arguments to the Board on remand; and the Board is
required to consider them
as it provides expeditious treatment of this matter. See 38 U.S.C. § 7112;
see also Kay v. Principi,
16 Vet.App. 529, 534 (2002); Kutscherousky v. West, 12 Vet.App. 369, 372 (
1999) (per curiam
order)
III. CONCLUSION
Based on the foregoing analysis, a review of the appellant’s and
Secretary’s briefs, and the
record on appeal, the Board’s May15, 2008, decision denying entitlement to
an effective date earlier
5

than August 5, 2002, for service-connected bilateral sensorineural
hearing loss is VACATED, and
the matter REMANDED for further development and readjudication consistent
with this decision.
DATED: October 18, 2010
Copies to:
Robert W. Legg, Esq.
VA General Counsel (027)
6

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