Veteranclaims’s Blog

March 17, 2011

Single Judeg Application, Bryant v. Shinseki, C.F.R. 3.103(c)

Filed under: Uncategorized — Tags: , — veteranclaims @ 5:34 pm

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.”
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—————————————————-

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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