Veteranclaims’s Blog

December 13, 2010

Recent Single Judge Decisions Citing to Bryant v. Shinseki, Hearing Officer’s Duties

We have mentioned the duties of a hearing officer as set forth under 38C.F.R.§ 3.103(c)(2)(2010) and by the court in Bryant v. Shinseki, here are two of the latest single judge decisions citing to Bryant.

NO. 09-0135, ROUNTREE, V. SHINSEKI,
Before LANCE, Judge, MEMORANDUM DECISION

“1. Duty to Notify
In asserting that the Board should have reopened his claim for entitlement
to service connection for a bilateral knee disability, the appellant argues that the
Board member “failed in her regulatory duty to notify the veteran of evidence he may have overlooked in submitting; evidence such as lay statements regarding problems he had with his knee since service.” Appellant’s Br. at 25-26.
Under 38 C.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.” The Court recently held in Bryant v. Shinseki, 23 Vet.App. 488, 493-94 (2010) (per curiam), that 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.” Here, the hearing transcript as a whole demonstrates that the hearing officer failed to explain how the veteran could reopen his claim or to suggest the submission of any evidence that may have been overlooked, such as a current diagnosis or lay statements regarding problems he has had since service. R. at 37-54. Consequently, the hearing officer failed to fulfill her duties under 38 C.F.R. § 3.103(c)(2).”
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NO. 09-0734, WATKINS, V. SHINSEKI,

Before SCHOELEN, Judge, MEMORANDUM DECISION

“II. ANALYSIS
Under 38 C.F.R. § 3.103(c)(2) (2010), a VA hearing officer has a duty 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.” See Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (stating that this regulation imposes “two distinct duties on the hearing officer . . . [t]he duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked”).

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0135
DONALD R. ROUNTREE, 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, Donald R. Rountree, through counsel, appeals
a December
17, 2008, Board of Veterans’ Appeals (Board) decision denying entitlement
to service connection
for: 1) left hip trochanteric bursitis,1
to include as due to service-connected right hip trochanteric
bursitis, and 2) bilateral heel spurs. Record (R.) at 3-26. The Board also
denied an application to
reopen claims for entitlement to service connection for: 1) hypertension
and 2) a bilateral knee
disability. Id. The Board granted entitlement to service connection for
diabetes mellitus, Type II,
to include as due to herbicide exposure, and as the appellant has raised
no argument with regard to
this claim, the Court will consider it abandoned. Bucklinger v. Brown, 5
Vet.App. 435, 436 (1993).
The Board also remanded the appellant’s claims of entitlement to service
connection for sleep apnea,
to include as due to service-connected allergic rhinitis, and post-
traumatic stress disorder (PTSD),
and thus the Court is without jurisdiction over those issues. Hampton v.
Gober, 10 Vet.App. 481,
483 (1997). Single-judgedispositionis appropriate. SeeFrankelv.Derwinski,
1 Vet.App. 23, 25-26
The trochanter is “either of the two processes below the neck of the femur
.” Dorland’s Illustrated Medical Dictionary
1996 (31st ed. 2007). “Process,” as used here, means “a prominence or
projection, as of bone.” Id. at 1540. Bursitis
is “inflammation of a bursa,” “a sac or saclike cavity filled with a
viscid fluid and situated at places in the tissues at which
friction would otherwise develop,” “occasionally accompanied by a calcific
deposit in the underlying tendon.” Id. at
266, 269.
1

(1990). This appeal is timely, and the Court has jurisdiction over the
Board decision pursuant to
38 U.S.C. §§ 7252(a) and 7266. For the reasons set forth below, the
Court will affirm in part and
vacate and remand in part the December 17, 2008, Board decision.
I. FACTS
The appellant served on active duty in the U.S. Army from June 1979 to
November 1993.2
R. at 825. In September 1993, the veteran filed claims for service-
connected benefits for high blood
pressure and for knee, hip, and foot conditions with the Waco, Texas,
regional office (RO). R. at
1543-47. After an extended procedural history, the Board remanded the
veteran’s claims for PTSD
and sleep apnea, granted his claim for service-connected benefits for Type
II diabetes mellitus, and
denied his claims that the appellant has raised on appeal. R. at 3-26.
II. ANALYSIS
A. Bilateral Heel Spurs
The appellant argues that the Board failed to explain why it rejected
evidence favorable to
his claim for service-connected benefits for bilateral heel spurs and that
the Board erred when it
failed to explain why it found that VA had satisfied its duty to assist
him when he was not provided
with an examination for his bilateral heel spurs. Appellant’s Brief (Br.)
at 13-17.
In this case, the Board determined that an examination for the appellant’s
bilateral heel spurs
“[wa]s not needed because the only evidence indicating the veteran
‘suffered an event, injury or
disease in service’ is his own lay statements.” R. at 10. The appellant’s
lay statements include his
stating that his heel spurs were caused by walking with a 40-pound pack on
his back “and climbing
up and down hills,” (R. at 42), and that his heel spurs started while in
service (R. at 51).
The
Secretary notes that a September 1985 service medical record (SMR)
reflects that the appellant
received treatment for pain in his heel from a running injury and noted a
left heel injury and “?
Ligamentous injury, doubt bony defecs (sic).” R. at 918.
The Secretary concedes that remand is appropriate here so that the Board
can provide
adequate reasons or bases explaining whether the September 1985 SMR is
sufficient to trigger the
2
There is discrepancy in the record as to the exact dates of the
appellant’s service, with his entrance date stated as either
1973 or 1979. The appellant’s DD-214 states that the appellant entered
service on June 22, 1979. However, the exact
dates of the appellant’s service are irrelevant to this case.

low threshold that indicates a possible connection to service under
McLendon v. Nicholson,
20 Vet.App. 79 (2006), and to also address the credibility and weigh the
probative value of the
appellant’s lay testimony. Secretary’s Br. at 8-9. The Court agrees that
the Board should address
the appellant’s lay statements and then address whether a medical
examination of his bilateral heel
spurs is necessary.
B. Left Hip Disability
The appellant next argues that the October 2007 VA examiner’s opinion was
inadequate for
rating purposes. Appellant’s Br. at 26-29. In this case, the Board found
that VA complied with its
duty to assist by providing the appellant with the October 2007 VA joints
examination, which
addressed whether the appellant’s “left hip disability could be directly
attributed to his service-
connected right hip disability.” R. at 10. In theexamination, theexaminer
opined that theappellant’s
“[t]rochanteric bursitis on one hip does not cause trochanteric bursitis
on the other one. This is a
totally separate entity.” R. at 214. However, the examiner did not address
whether the appellant’s
right hip disabilityaggravated his left hip disability. See Allen v. Brown,
7 Vet. App. 439, 448(1995)
(allowing secondary service connection for disability aggravated by
service-connected condition);
38 C.F.R. § 3.310 (2010). The Secretary concedes that remand is necessary
so that the Board can
address whether the October 2007 VA medical examination complied with the
dutyto assist, in light
of the fact that the examiner did not address aggravation. Secretary’s Br.
at 6-8. The Court agrees.
C. Bilateral Knee Condition
1. Duty to Notify
In asserting that the Board should have reopened his claim for entitlement
to service
connection for a bilateral knee disability, the appellant argues that the
Board member “failed in her
regulatory duty to notify the veteran of evidence he may have overlooked
in submitting; evidence
such as lay statements regarding problems he had with his knee since
service.” Appellant’s Br. at
25-26.
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.” The Court recently held in BryantNext Document v. Shinseki, 23 Vet.App. 488,
493-94 (2010) (per
curiam), that 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.”
Here, the hearing transcript as a whole demonstrates that the hearing
officer failed to explain
how the veteran could reopen his claim or to suggest the submission of any
evidence that may have
been overlooked, such as a current diagnosis or lay statements regarding
problems he has had since
service. R. at 37-54. Consequently, the hearing officer failed to fulfill
her duties under 38 C.F.R.
§ 3.103(c)(2).
The Court must next consider whether the appellant was prejudiced by the
hearing officer’s
error. See 38 U.S.C. § 7261(b)(2). The appellant bears the burden of
showing that he suffered
prejudice as a result of VA error. Shinseki v. Sanders, 129 S.Ct. 1696,
1704, 170-06 (2009). Here,
the appellant argues that “[b]y not being informed of [the evidence he
needed to submit to reopen
his claim] by the hearing officer, [he] was denied the opportunity to
participate in the development
of his claim.” Appellant’s Br. at 25-26. The Secretary points to notice
letters that VA sent to the
appellant in October 2004, May 2005, July 2005, and January 2007 (R. at
1037-45, 1371-76, 1389-
93, 1420-25; Secretary’s Br. at 17), but these letters were sent prior to
the September 2008 Board
hearing and the appellant’s failure to submit such evidence before the
hearing indicates that the
appellant did not understand or appreciate what evidence he needed to
submit to substantiate his
claim. There is also nothing within the transcript of the hearing to
indicate that the appellant
understood the issue. R. at 37-54. Accordingly, the record does not
demonstrate that the appellant
had actual knowledge of what evidence to submit so as to render the notice
error nonprejudicial.
2. Duty to Assist in Obtaining Records
In asserting that the Board should have reopened his claim for entitlement
to service
connection for a bilateral knee disability, the appellant’s second
argument is that the Board provided
inadequate reasons or bases in finding that VA complied with its duty to
assist because VA failed
to obtain hospital treatment records documenting treatment for his
bilateral knee condition.
Appellant’s Br. at 20-24.
Under 38 U.S.C. § 5103A(c)(2), in a claim for disability compensation, VA
is required to
make reasonable efforts to obtain “[r]ecords of relevant medical treatment
or examination of the
claimant at Department health-care facilities or at the expense of the
Department, if the claimant
furnishes information sufficient to locate those records.” This duty
equally applies in claims to

reopen. See 38 C.F.R. § 3.159(c) (2010). The Secretary’s attempts to
locate these records must
“continue until the records are obtained unless it is reasonably certain
that such records do not exist
or the future efforts to obtain those records would be futile.” 38 U.S.C. §
5103A(b)(3). VA is
required to notify a claimant that it made reasonable efforts to obtain
the federal records but was
either unable to obtain them or it was reasonably certain that any
additional efforts to obtain such
records would be futile. 38 C.F.R. § 3.159(c)(2). The Board’s finding
that the Secretary has
complied with the duty to assist is a finding of fact that the Court
reviews under the “clearly
erroneous” standard of review. Nolen v. Gober, 14 Vet. App. 183, 184 (2000).
As the appellant notes, the Board stated the following:
The veteran’s service treatment records and VA medical records are in the
file.
Private medical records identified by the veteran have been obtained, to
the extent
possible. The veteran has at no time referenced outstanding records that
he wanted
VA to obtain or that he felt were relevant to the claims.
R. at 10. The appellant also notes that during an April 2006 RO hearing,
the decision review officer
stated that she did not recall seeing in-service hospital treatment
records and would request them.
R. at 1098. Subsequently, in February 2007, the RO requested records of
the appellant’s hospital
treatment for his knee injury at the Johnston Island Base Hospital during
service. R. at 1005; see R.
at 869-1000. While VA did attempt to obtain them and was successful in
obtaining the rest of the
appellant’s SMRs, these hospital records were not located. Id. There is
nothing in the record or the
parties’ briefs to indicate that the appellant was provided notice prior
to the Board decision that the
VA could not obtain these hospital records and, therefore, remand is
appropriate so that the appellant
may attempt to obtain these records and submit them to the Board.
The appellant is free to submit additional evidence and argument on the
remanded matters,
and the Board is required to consider anysuch 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).

D. Hypertension
The appellant argues that the Board erred in denying reopening of his
hypertension claim
because it failed to discuss whether his hypertension was secondary to his
service-connected
diabetes. Appellant’s Br. at 17-20. During a September 2008 Board hearing,
the appellant’s
representative stated that “it [was] quite probable [the appellant’s]
hypertension may be secondary
to the diabetes mellitus.” R. at 49. In December 2008, the Board granted
the appellant’s claim for
service-connected benefits for diabetes mellitus based on exposure to
Agent Orange (R. at 17-21),
but the appellant argues that the Board failed to discuss whether his
hypertension was secondary to
his diabetes (Appellant’s Br. at 20).
The Board must include in its decision a written statement of the reasons
or bases for its
findings and conclusions, adequate to enable an appellant to understand
the precise basis for the
Board’s decision as well as to facilitate review in this Court. 38 U.S.C. §
7104(d)(1); Allday v.
Brown, 7 Vet.App. 517, 527 (1995). Additionally, this reasons or bases
requirement obligates the
Board to discuss all issues and theories that are reasonably raised by the
claimant or the evidence of
record. Robinson v. Mansfield, 21 Vet. App.545, 552 (2008).
While the appellant’s representative’s statement during the Board hearing
did raise the theory
that the appellant’s hypertension was secondary to his diabetes, the
Board’s failure to address this
theory was harmless because the appellant cites no evidence in the record
to support his
representative’s conjecture. In the absence of any evidence to discuss, a
remand for this technical
error would be a useless formality. See Sanders, supra; see also 38 U.S.C.
§ 7261(b)(2) (Court must
“take due account of the rule of prejudicial error”).

III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the Board’s December 17, 2008, decision is VACATED in the part
concerning bilateral heel
spurs, a left hip disability and a bilateral knee disability, and the
matters are REMANDED to the
Board for further proceedings consistent with this decision. The decision
is otherwise AFFIRMED.
DATED: November 18, 2010
Copies to:
Virginia A. Girard-Brady, Esq.
VA General Counsel (027)

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 09-0734
MARILYN WATKINS, 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, veteran Marilyn Watkins, appeals through
counsel a
February 6, 2009, Board of Veterans’ Appeals (Board) decision that denied
entitlement to service
connection for arthritis. Record of Proceedings (R.) at 3-12. The Board
remanded the issue of
whether the appellant had submitted new and material evidence sufficient
to reopen her claim for
entitlement to service connection for a brain tumor (R. at 12-15), so that
issue is not before the
Court. Hampton v. Gober, 10 Vet.App. 481, 483 (1997). 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).
Because the appellant had actual knowledge of the evidence needed to
substantiate her claim, the
Court will affirm the Board’s decision.
I. BACKGROUND
The appellant served on active duty in the U.S. Army from November 1975 to
March 1977.
R. at 4, 787. The appellant’s claim for entitlement to service connection
for arthritis was initially
denied in April 1998. R. at 817. In June 2001, she filed another
application for compensation for
arthritis, among other conditions, that the regional office (RO) construed
as a claim to reopen. R.

at 784, 786-99. In a September 2001 letter, the RO informed the appellant
that in order to reopen
her claim, she must “submit new medical proof to show this condition was
caused or made worse
by [her] military service” and that if she still had the condition, she
must submit “treatment records
from the time [she was] in service to the present.” R. at 784. The letter
also stated that if she had
been treated at a VA Medical Center (VAMC), she should provide the name of
that medical center.
Id. In December 2002, the regional office (RO) determined that the
appellant had not submitted new
and material evidence sufficient to reopen her claim. R. at 565-68. The
appellant appealed this
decision and requested a hearing before the Board. R. at 525, 527-52, 562.
On November 15, 2004, the appellant testified in a video conference
hearing. R. at 497-506.
The hearing officer asked the appellant if the requirement of submitting
new and material evidence
to reopen her claim had been explained to her. R. at 500. She said that it
had been. Id. She stated
that her new evidence was a letter written by her private doctor stating
that she did have arthritis and
that “it could be associated when I was in the military.” R. at 501. The
hearing officer asked
whether the Board had all of her doctor’s records, and she replied, “Yes.”
R. at 502. The hearing
officer asked her about the nature of her arthritis and the appellant
replied that she had it in her
hands, back, and knees. R. at 503. The appellant stated that she may need
back surgery, but that her
doctor at VA was “going to find out more information.” R. at 504. The
hearing officer asked
whether she wanted the Board to consider those records, and she said that
she did and that she would
get those records to the Board. R. at 504-05. She added that she has
arthritis in her hip and that it
is affecting her back. R. at 505.
In September 2006, the Board reopened the appellant’s claim and remanded
the matter to the
RO to obtain the appellant’s medical records from the VAMC in Jackson,
Mississippi. R. at 478-94.
The record indicates that medical treatment records from the VAMC were
associated with the
appellant’s claims file after the Board remanded her claim to the RO. R.
at 203-61. In an October
2006 letter to the appellant, the Appeals Management Center described the
type of evidence
necessary to substantiate her claim. R. at 186-87. The record indicates
that additional medical
treatment records were submitted after this letter was issued. R. at 39-60,
63-163. The RO issued
a Supplemental Statement of the Case in May 2008. R. at 24-37.
2

In its February 6, 2009, decision here on appeal, the Board denied the
appellant’s claim for
entitlement to service connection for arthritis of the spine because it
found that the appellant was
diagnosed with “degenerative joint disease of the lumbosacral spine” –
not arthritis – and there was
no evidence linking this condition to her service. R. at 8. The Board
denied the appellant’s claims
relating to arthritis of the hips, hands, and ankles, because the
appellant has not been diagnosed with
arthritis of the hips, hands, or ankles, and there was no indication of
treatment for arthritis in the
appellant’s service treatment records or claims folder. R. at 8, 11. With
respect to the appellant’s
knees, the Board noted that she was afforded a VA medical examination in
March 2008. R. at 11.
The examiner diagnosed “mild osteoarthritis,” but opined that it “was not
caused by or the result of
[the appellant’s] active militaryservice.” Id. Because there was no
diagnosis of arthritis of the spine,
hips, hands, and ankles, and there was no evidence associating her mild
osteoarthritis of the knees
with service, the Board denied her claim for entitlement to service
connection for arthritis. R. at 12.
The appellant argues that VA failed to satisfy its duty to assist because
the 2004 hearing
officer did not “suggest that the appellant submit relevant medical
evidence that would support her
claim.” Appellant’s Brief (Br.) at 5-8. The appellant also argues that the
Board’s statement of
reasons and bases for its determination is inadequate because it “failed
to discuss its obligations
under 38 C.F.R. § 3.103(c)(2).” Id. at 8. The Secretary states that the
appellant had actual
knowledge “of the need to submit medical evidence of a current disability
and evidence of nexus
between that disability and service in order to substantiate her claim,”
as demonstrated in her own
2004 hearing testimony. Secretary’s Br. at 3-7. The Secretary asserts that
following the 2004
hearing, the appellant’s claim was reopened and she was provided with
notice, pursuant to the
Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114
Stat. 2096, which
explained the evidence necessary to substantiate her claim. Id. at 7-8.
The Secretary adds that even
if the appellant’s “§ 3.103(c)(2) argument is correct, she has not
addressed the VCAA notice letter
. . . which unequivocally informed her how to substantiate her claim.” Id.
at 8. In addition, because
“the Board had no occasion to consider [§ 3.103(c)(2)] in the decision on
appeal,” the Secretary
asserts that “the Board’s statement of reasons or bases was adequate in
that regard.” Id. at 9.
3

II. ANALYSIS
Under 38 C.F.R. § 3.103(c)(2) (2010), a VA hearing officer has a duty 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.” See Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (stating that this regulation imposes “two distinct duties on the hearing officer . . . [t]he duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked”).
The Board’s determination that VA has satisfied the duty to
assist is reviewed under
the “clearly erroneous” standard of review. Hyatt v. Nicholson, 21 Vet.App.
390, 395 (2007). A
finding of fact is clearly erroneous when the Court, after reviewing the
entire evidence, “is left with
the definite and firm conviction that a mistake has been committed.”
United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App.
49, 52 (1990).
In rendering its decision, the Board must provide a statement of the
reasons or bases for its
determination that is adequate to enable an appellant to understand the
precise basis for its decision,
as well as to facilitate review in this Court. 38 U.S.C. § 7104(d)(1);
see Allday v. Brown, 7 Vet.App.
517, 527 (1995); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990). To
comply with this
requirement, the Board must analyze the credibility and probative value of
the evidence, account for
the evidence it finds persuasive or unpersuasive, and provide the reasons
for its rejection of any
material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App.
498, 506 (1995), aff’d per
curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).
The Court agrees with the Secretary that the Board did not breach its
regulatory duty to
suggest evidence. The hearing officer asked the appellant directly whether
she understood the
requirement of submitting new and material evidence to reopen her claim. R.
at 500. The appellant
stated that this had been explained to her. Id. She described the new
evidence and stated that the
Board had all of her private doctor’s records. R. at 501-02. The hearing
officer asked the appellant
whether she wanted the Board to consider any forthcoming VAMC records, and
she said that she did
and that she would submit those records to the Board. R. at 504-05. The
record demonstrates that
new medical records were associated with the appellant’s claims file both
after the 2004 hearing and
after the 2006 Board remand. R. at 39-60, 63-163, 203-61. Additionally,
the Court finds that the
October 2006 VCAA letter notified the appellant of the evidence she would
need to submit to
4

substantiate her claim. R. at 186-87. Therefore, it appears that the
appellant had actual knowledge
of the evidence needed to substantiate her claim. In light of this actual
knowledge, the Court holds
that even if the hearing officer failed to comply with § 3.103(c)(2), the
appellant was not prejudiced
by any such error. 38 U.S.C. § 7261(b)(2); see Mayfield v. Nicholson, 19
Vet.App. 103, 121 (2005)
(noting that no prejudice exists when a claimant has actual knowledge of
the evidence required),
rev’d on other grounds, 444 F.3d 1328 (Fed. Cir. 2008); Moffitt v. Brown,
10 Vet.App. 214, 228
(1997) (applying prejudicial error analysis to an argument that a hearing officer
failed to comply with
§ 3.103(c)(2)).
The appellant argues that the Board’s statement of reasons or bases is
inadequate because the
Board “failed to discuss its obligations under 38 C.F.R. § 3.103(c)(2).”
Appellant’s Br. at 8. This
is the only reasons-or-bases error asserted by the appellant. In light of
the above discussion
regarding VA’s obligation to suggest evidence, the Court finds that this
argument lacks merit.
III. CONCLUSION
After consideration of the appellant’s and the Secretary’s pleadings, and
a review of the
record, the February 6, 2009, Board decision is AFFIRMED.
DATED: November 17, 2010
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
5

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