Veteranclaims’s Blog

April 20, 2012

Single Judge Application, VR&E , Entitlement to Full Explanation; Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011)

Excerpt from decision below:
“Further, although the Secretary is correct that the Court reviews the Board’s determination that a vocational goal is not reasonably feasible under the “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law” standard of review, Kandik v. Brown, 9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that highly deferential standard does not relieve the Board of its duty to provide an adequate statement of reasons or bases for its application of the detailed VA regulations governing the award of
vocational rehabilitation benefits. See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would “be entitled to a full explanation . . . of the reasons or bases for the Board’s decision” regarding the Secretary’s discretionary appointment of a particular fiduciary).
=============
—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-0425
ABDULLAH SHABAZZ, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before HAGEL, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
HAGEL, Judge: Abdullah Shabazz appeals through counsel an October 12, 2010,
Board of
Veterans’ Appeals (Board) decision denying entitlement to vocational
rehabilitation benefits and
training as a paralegal (non-lawyer legal assistant). Record (R.) at 3-16.
Mr. Shabazz’s Notice of
Appeal was timelyand the Court has jurisdiction to review the Board
decision pursuant to 38 U.S.C.
§ 7252(a). The parties neither requested oral argument nor identified
issues that theybelieve require
a precedential decision of the Court. Because the Board’s statement of
reasons or bases for its
decision was inadequate, the Court will vacate the October 12, 2010, Board
decision and remand the
matter for readjudication consistent with this decision.
I. FACTS
Mr. Shabazz served on active duty in the U.S. Army from May 1955 to
October 1958. He
currentlyhas a 20% combined disability rating for a left wrist strain and
residuals of fractures of two
bones of the left hand.
Although all documents relevant to the claim are not contained in the
record of proceedings,
it appears that Mr. Shabazz has been seeking vocational rehabilitation
benefits since at least 1984.

Mr. Shabazz’s most recent claim for vocational rehabilitation benefits
began in June 2001, when he
expressed interest in training to become a paralegal. However, in July
2002, a VA regional office
denied Mr. Shabazz’s claim for vocational rehabilitation benefits and
training as a paralegal.
Specifically, the regional office found that it was not reasonably
feasible for Mr. Shabazz to
complete a two-year paralegal certification program offered by a local
community college because
(1) the job outlook for certified paralegals in the local market was poor
given the surplus of attorneys
seeking similar employment; (2) he failed to complete previous VA
vocational rehabilitation
programs; and (3) “were he to complete such a program successfully, he
would be 67 years of age
upon program completion.” R. at 2138. Mr. Shabazz filed a timely Notice of
Disagreement with
that decision, stating that he had been accepted into the aforementioned
paralegal training program
at the community college and requesting a hearing to determine whether he
was entitled to
“immediate financial support to meet [his] academic goal and requirements.”
R. at 549. He
subsequently perfected his appeal.
In April 2009, Mr. Shabazz was afforded a hearing before a Board member.1
At that time,
Mr. Shabazz testified that he previously submitted a letter to VA from
attorney Alan D. Eisenberg
stating that he would hire Mr. Shabazz as a paralegal once he completed
the training program. Mr.
Shabazz also stated that he had another, similar letter from attorney
Alfred Albertson, but that he
forgot to bring it with him to the hearing. At the conclusion of the
hearing, the Board member
indicated that he would leave the record open for 30 days so that Mr.
Shabazz could submit any
additional documents that he had in his possession. However, Mr. Shabazz
failed to do so.
Nevertheless, in August 2009, the Board remanded his claim for further
development.
In January 2010, a VA vocational counselor reevaluated the feasibility of
Mr. Shabazz’s
vocational goal of becoming a paralegal. The counselor noted that Mr.
Shabazz’s “interests,
aptitudes[,] and abilities” were consistent with those of a paralegal and
that his “general medical
condition” would not “limit him physically in the usual activities of a
paralegal.” R. at 2481.
However, the counselor also explained that Mr. Shabazz had “a troubling
legal history,” including
1
It is unclear from the parties’ briefs and the record of proceedings why
it took nearly six years to schedule the
requested hearing. See R. at 549 (September 2002 Notice of Disagreement),
524-28 (March 2003 Statement of the
Case), R. at 73 (references to a June 2006 Supplemental Statement of the
Case, a July 2006 VA Form 9, and an October
2006 certification of the appeal to the Board), 143-84 (transcript from
the April 2009 Board hearing).
2

multiple felony convictions for forgery and dealing in false securities,
which made “finding gainful
employment as a paralegal . . . remote at best,” particularly considering
the limited local job market
for paralegals. R. at 2482. The counselor confirmed this hypothesis with
the regional counsel at the
local regional office, who stated that Mr. Shabazz’s “‘propensity toward
not being honest’ would be
a barrier to securing employment in the legal arena generally, and that VA
would not hire a paralegal
with an extensive legal history.” Id. Finally, the counselor noted that Mr.
Shabazz would face
“[a]dditional projected difficulties” because he had been unemployed for
over 10 years, with
“significant restriction on employability resulting from his age of 72.” R.
at 2483. Therefore, the
counselor concluded that it was not reasonably feasible for Mr. Shabazz to
achieve his occupational
goal of obtaining employment as a certified paralegal.
InOctober2010,the Board issued the decision currentlyonappeal,
whichdeniedentitlement
to vocational rehabilitation benefits and training as a paralegal. The
Board reviewed the evidence
of record and noted that, in the April 2009 Board hearing, Mr. Shabazz
indicated that he “submitted
to his counselor two letters from local attorneys who stated that they
would hire [him] in a[n]
apprenticeship program,” but that “[those] letters are not of record nor
have they been mentioned in
VA counselor reports.” R. at 11. The Board then acknowledged Mr. Shabazz’s ”
legal history of
convictions for fraud, misrepresentation, and unsatisfied judgments” and
noted that “the applicable
state law does permit denial of employment if the felony convictions are
substantially related to the
job” and that “[a] national paralegal association and the Wisconsin State
Bar both support the denial
of licensure as a paralegal to those convicted of crimes of moral
turpitude.” R. at 15-16. In light of
those barriers, the Board concluded that it was not reasonably feasible
for Mr. Shabazz to secure
employment as a paralegal.
II. ANALYSIS
A. Duty To Assist
Mr.Shabazz firstargues thattheBoard’s determination thatVAsatisfiedits
dutyto assist was
clearlyerroneousbecauseVAgenerally,andtheBoardmemberspecifically,
wererequiredto inform
him that the attorney letters that he referenced at the April 2009 Board
hearing were not in the
record. The Court disagrees.
3

1. Duties of a VA Hearing Officer
“Upon request, a claimant is entitled to a hearing at anytime on anyissue
involved in a claim
within the purview of part 3 of [title 38 of the Code of Federal
Regulations.]” 38 C.F.R.
§ 3.103(c)(1) (2011). “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 [
on appeal].” 38 C.F.R.
§ 3.103(c)(2). This provision “imposes . . . two distinct duties on the
hearing officer . . . : The duty
to explain fully the issues and the duty to suggest the submission of
evidence that may have been
overlooked.” Bryant v. Shinseki, 23 Vet.App. 488, 492 (2010) (per curiam).
These requirements are
designed “‘[t]o assure clarity and completeness of the hearing record.'”
Thomas v. Nicholson,
423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2) (
2005)); see also Bryant,
23 Vet.App. at 499.
The Court notes that, on August 23, 2011, VA published a final rule ”
amending its hearing
regulations to clarify that the provisions regarding hearings before the
Agency of Original
Jurisdiction do not apply to hearings before the Board of Veterans’
Appeals,” effective on that date.
76 Fed. Reg. 52572–75 (Aug. 23, 2011). This amendment was intended to
make “clarifying
changes” to reflect VA’s intent to differentiate between the duties owed
to claimants by hearing
officers at the agency of original jurisdiction and Board members. See id.
In this case, the Court need not reach the question of whether VA’s recent
amendment to
§ 3.103(c)(2) applies retroactively because, even assuming that it did
not, Mr. Shabazz’s arguments
would lack merit. Specifically, Mr. Shabazz does not argue that the Board
member failed to fully
explain anyissues related to his claim, but rather asserts that the Board
member failed to suggest that
he submit evidence–i.e., the letters from attorneys stating that
theywould hire him upon completion
of his paralegal training–that was not in the record. However, the fatal
flaw with this argument is
that a hearing officer is onlyrequired to suggest that a claimant submit
evidence that “mayhave been
overlooked,” not evidence that is simplymissing from the record. 38 C.F.R.
§ 3.103(c)(2) (emphasis
added). Indeed, Mr. Shabazz concedes that § 3.103(c)(2) would not applyin
his case because “[t]his
situation does not involve [him] overlooking the evidence” because he was
aware of the existence
of the attorney letters and their importance to his claim. Appellant’s Br.
at 9; see R. at 153 (Mr.
4

Shabazz’s testimony indicating that a vocational rehabilitation counselor
previously told him to
obtain such letters to substantiate his claim). Rather, Mr. Shabazz argues
only that “the spir[i]t of
38 C.F.R. § 3.103(c)(2), as well as fundamental due process
considerations, would requirethe Board
member to suggest to him that he resubmit [the attorney letters].” Id. at
10.
However, Mr. Shabazz does not cite any precedent for his argument that the
Court should
expand the duties of a hearing officer beyond those specificallyenumerated
in § 3.103(c)(2), and the
Court is unpersuaded by his vague and unsupported due process and fairness
arguments. See
Locklear v. Nicholson, 20 Vet.App. 410, 416 (2006) (holding that the Court
will not entertain
underdevelopedarguments);Brewerv.West,11Vet.App.228,236(1998)(
explainingthattheCourt
need not consider “mere assertions of constitutional impropriety for which [
the appellant] has not
provided any legal support”).
The Court therefore concludes that, even assuming that the
amendment to § 3.103(c)(2) is not retroactive, Mr. Shabazz has failed to
carry his burden of
demonstrating that the Board member violated any duty imposed by that
regulation. See Hilkert v.
West, 12 Vet.App. 145, 151 (1999) (en banc) (holding that the appellant
has the burden of
demonstrating error), aff’d per curiam, 232 F.3d 908 (Fed. Cir. 2000) (
table).
2. VA’s General Duty To Obtain Records
“The Secretary shall make reasonable efforts to assist a claimant in
obtaining evidence
necessary to substantiate the claimant’s claim for a benefit under a law
administered by the
Secretary.” 38 U.S.C. § 5103A(a)(1). This duty includes making ”
reasonable efforts to obtain
relevant records (including private records) that the claimant adequately
identifies to the Secretary
and authorizes the Secretary to obtain.” 38 U.S.C. § 5103A(b)(1). If the
Secretary is unable to
obtain all of the records sought, the Secretary must provide notice to the
claimant that “identif[ies]
the records that the Secretary was unable to obtain,” “briefly explain[s]
the efforts that the Secretary
made to obtain those records,” and “describe[s] any further action to be
taken by the Secretary with
respect to the claim.” 38 U.S.C. § 5103A(b)(2). These requirements also
apply to private
documents.
The Court reviews the Board’s determination that VA satisfied its duty to
assist under the
“clearly erroneous” standard of review. Nolen v. Gober, 14 Vet.App. 183,
184 (2000). “A factual
finding ‘is “clearly erroneous” when although there is evidence to support
it, the reviewing court on
5

the entire evidence is left with the definite and firm conviction that a
mistake has been committed.'”
Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.
S. Gypsum Co., 333 U.S.
364, 395 (1948)).
Here, Mr.Shabazz testified that he had a letterfrom attorneyAlbertson that
he forgot to bring
with him to the hearing, and the Board member directed that the record be
held open for 30 days to
allow him to submit it. Nevertheless, Mr. Shabazz did not do so. On appeal,
Mr. Shabazz argues
that his failure to submit the letter from attorney Albertson compelled VA
to obtain it on his behalf.
To accept this argument would be to impose on VA a quiescent duty to
obtain records known to the
claimant and within the claimant’s exclusive possession that springs to
life upon the claimant’s
inaction. However, “[t]he duty to assist is not always a one-way street”
and a claimant seeking
assistance “cannot passively wait for it in those circumstances where he
may or should have
information that is essential in obtaining the putative evidence.” Wood v.
Derwinski, 1 Vet.App.
190, 193 (1991). The duty to assist is just that: a requirement that VA
assist the claimant in
obtaining evidence to substantiate a claim, not a requirement that VA
produce that evidence while
the claimant rests on his laurels. Accordingly, the Court concludes that
the Board’s determination
that VA satisfied its duty to assist Mr. Shabazz in obtaining the letter
from attorney Albertson was
not clearly erroneous. See Nolen, 14 Vet.App. at 184.
Mr. Shabazz also testified that he had previously submitted a similar
letter from attorney
Eisenberg to his VA vocational rehabilitation counselor. Unlike the letter
from attorney Albertson
that Mr. Shabazz did not submit to VA and therefore had no reason to
believe was in the record
before the agency, Mr. Shabazz’s testimony establishes that he believed
that the letter from attorney
Eisenberg was alreadyin the record and would therefore be considered bythe
Board. Consequently,
Mr. Shabazz argues that VA had a duty to assist him in obtaining that
letter once the Board
determined that it was not in the record.
The Court notes that, aside from cursory references to 38 U.S.C. § 5103A(
a) and (b), Mr.
Shabazz does not cite any legal precedent in support of his argument.
Rather, Mr. Shabazz merely
asserts that “VA could easily have informed [him]” that the letter from
attorney Eisenberg was not
in the record before the agencyand that “[i]t is hardly an undue burden on
VA to expect it to provide
this minimal assistance.” Appellant’s Br. at 10; Appellant’s Reply Br. at
4. Even assuming, as Mr.
6

Shabazz contends, that it would be “easy” for VA to review the record to
determine whether it
contains evidence that a claimant believes is in the record and inform the
claimant of that missing
evidence, Mr. Shabazz has failed to identify any statute, regulation, or
legal precedent that requires
VA to do so. The Court reminds Mr. Shabazz that “[t]he duty to assist is
not boundless in its scope.”
Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010). Absent any
citation to legal authority
supporting the requested extension of the duty to assist, the Court
concludes that Mr. Shabazz has
failed to carry his burden of demonstrating that the Board’s determination
that VA satisfied its duty
to assist him in obtaining the letter from attorney Eisenberg was clearly
erroneous. See Nolen,
14 Vet.App. at 184; Hilkert, 12 Vet.App. at 151. The Court has made it
clear that, especially in a
case where the appellant is represented by an attorney, the Court is not
required to address an
underdeveloped argument. See Locklear v. Nicholson, 20 Vet.App. 410, 416 (
2006); cf. Redondo-
Borges v. U.S. Dept. of Hous. & Urban Dev., 421 F.3d 1, 6 (1st Cir. 2005) (”
Even during appellate
review of a [dismissal for failure to state a claim], which takes place
under a set of plaintiff-friendly
guidelines, the reviewing court cannot be expected to ‘do counsel’s work,
create the ossature for the
argument, and put flesh on its bones.'” (quoting U.S. v. Zannino, 895 F.2d
1, 17 (1st Cir. 1990))).
The failures mentioned above place this case in that category.
B. Reasons or Bases
Mr. Shabazz next argues that the Board’s statement of reasons or bases for
its decision was
inadequatebecausetheBoardfailedto considerevidencepotentiallyfavorableto
his claimandfailed
to explain why a barrier to employability rendered his vocational goal not
reasonably feasible. The
Court agrees.
In rendering its decision, the Board is required to provide a written
statement of the reasons
or bases for its “findings and conclusions[] on all material issues of
fact and law presented on the
record.” 38 U.S.C. § 7104(d)(1). The statement must be adequate to
enablea claimant to understand
the precise basis for the Board’s decision, as well as to facilitate
review in this Court. Gilbert v.
Derwinski, 1 Vet.App. 49, 57 (1990). To comply with this requirement, the
Board must analyze the
credibilityand probative value of the evidence, account for the evidence
that it finds to be 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.
7

1996) (table). The Board may commit error requiring remand when it fails
to provide an adequate
statement of its reasons or bases. See Gilbert, 1 Vet.App. at 57.
Although Mr. Shabazz makes numerous arguments regarding the adequacy of
the Board’s
statement of reasons or bases, the Court is persuaded by his argument that
the Board failed to
consider evidence that he was performing volunteer legal work for a civil
rights organization under
the supervision of licensed attorneys. Specifically, Mr. Shabazz notes
that there is evidence in the
record indicating that he conducts legal research and drafts
correspondence to clients. These tasks
are similar to those routinely performed by paralegals and it appears that
Mr. Shabazz’s criminal
history was not a barrier to his securing such employment, albeit on a
volunteer basis. The Board’s
decision rests primarily, if not solely, on the determination that Mr.
Shabazz’s particular vocational
goal–i.e., qualification as a paralegal–is not reasonably achievable
when considering the
circumstance of his previous criminal record. This finding makes the
evidence that he would be
hired by two lawyers and that he currently works as a paralegal on a
volunteer basis particularly
probative regarding the issue of whether his criminal record is a barrier
to the reasonable feasibility
of employment. Accordingly, this evidence is potentially favorable to Mr.
Shabazz’s claim and the
Board, therefore, was required to consider and discuss it in determining
whether his vocational goal
of becoming a certified paralegal was reasonably feasible. See Caluza, 7
Vet.App. at 506. The
Board’s failure to do so renders its statement of reasons or bases
inadequate and, therefore, the Court
concludes that vacatur and remand is warranted.2
See Tucker v. West, 11 Vet.App. 369, 374 (1998);
Gilbert, 1 Vet.App. at 57.
Further, although the Secretary is correct that the Court reviews the
Board’s determination
that a vocational goal is not reasonably feasible under the “arbitrary,
capricious, an abuse of
discretion, or otherwise not in accordance with law” standard of review,
Kandik v. Brown,
9 Vet.App. 434, 438 (1996) (citing 38 U.S.C. § 7261(a)(3)(A)), that
highlydeferential standard does
not relieve the Board of its duty to provide an adequate statement of
reasons or bases for its
2
As noted above, Mr. Shabazz has raised other arguments relating to the
Board’s statement of reasons or bases
for its decision. However, because the Court is remanding Mr. Shabazz’s
claim and the Board will necessarily render
a new decision on remand, the Court need not address those arguments at
this time. See Best v. Principi, 15 Vet.App.
18, 20 (2001) (per curiam order) (“A narrow decision preserves for the
appellant an opportunity to argue those claimed
errors before the Board at the readjudication, and, of course, before this
Court in an appeal, should the Board rule against
him.”).
8

application of the detailed VA regulations governing the award of
vocational rehabilitation benefits.
See Freeman v. Shinseki, 24 Vet.App. 404, 417 (2011) (holding that an appellant would “be entitled to a full explanation . . . of the reasons or bases for the Board’s decision” regarding the Secretary’s discretionary appointment of a particular fiduciary).
Lastly, the Board placed great importance on the opinion of VA’s regional counsel that Mr. Shabazz’s vocational goal of becoming a certified paralegal would not be reasonably feasible in light
of his criminal record. However, this opinion is only referenced in the
January 2010 VA vocational
counselor’s report and is not contained in the record before the agency or
the record of proceedings
in this appeal. Therefore, the Court concludes that the Board erred in
relyingon that opinion because
it did not notify Mr. Shabazz that it would consider that extrinsic
evidence and did not provide him
with an opportunity to submit contrary evidence or argument. See Thurber v.
Brown, 5 Vet.App.
119, 126 (1993); 38 C.F.R. § 20.903 (2011).
On remand, Mr. Shabazz is free to submit additional evidence and argument
in accordance
with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam
order), and, in particular,
is encouraged to submit the letters from attorneys Albertson and Eisenberg
if they are still in his
possession. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). “A remand is
meant to entail a
critical examination of the justification for the decision” by the Board.
Fletcher v. Derwinski,
1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed
expeditiously, in accordance with
38 U.S.C. § 7112 (expedited treatment of remanded claims).

III. CONCLUSION
Upon consideration of the foregoing, the October 12, 2010, Board decision is VACATED and the matter is REMANDED for readjudication consistent with this decision.
DATED: March 27, 2012
Copies to:
Daniel G. Krasnegor, Esq.
VA General Counsel (027)
9

Advertisements

Leave a Comment »

No comments yet.

RSS feed for comments on this post. TrackBack URI

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

Blog at WordPress.com.

%d bloggers like this: