Veteranclaims’s Blog

June 13, 2011

Single Judge Application, Evaluating Hearing Officer Duties, Bryant v. Shinseki, 23 Vet.App., CFR 3.303(c)

Filed under: Uncategorized — Tags: , , , — veteranclaims @ 8:09 pm

This decision provides a good analysis of what to look for when evaluating a hearing officer’s actions.
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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.
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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.
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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
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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
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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”).
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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)
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