Veteranclaims’s Blog

December 22, 2014

Panel Application, 38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet.App. 488 (2010); Procopio v. Shinseki, 26 Vet.App. 76 (2012)

Excerpt from decision below:

“As discussed below, the Court reiterates the holdings in Bryant and Procopio, and holds that,
where the appropriate disability rating is at issue in a case, the duty to fully explain outstanding,
material issues pursuant to 38 C.F.R. § 3.103(c)(2) generally requires a Board member to explain
(1) that a disability rating is assigned based on the symptoms and severity of the disability, as well as its effects on employment, and (2) why the VA regional office (RO) did not assign a higher (or
the highest) schedular disability rating. Moreover, the duty to explain encompasses components of
the disability rating determination, such as extraschedular consideration, when such a component
is at issue in the case.

=====================

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-1883
THOMAS C. LEAVEY, JR., APPELLANT,
V.
ROBERT A. MCDONALD,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans’ Appeals
(Argued April 8, 2014
Decided November 14, 2014)
John R. Gibson, with whom Matthew S. Yungwirth was on the brief, both of
Atlanta,
Georgia, for the appellant.
Clifton A. Prince, with whom Will A. Gunn, General Counsel; David L. Quinn,
Acting
Assistant General Counsel; and Joan E. Moriarty, Deputy Assistant General
Counsel, were on the
brief, all of Washington, D.C., for the appellee.1
BeforeKASOLD,Chief Judge,andHAGEL,MOORMAN,LANCE,DAVIS, SCHOELEN,
PIETSCH, and GREENBERG, Judges.2

KASOLD, Chief Judge, filed the opinion of the Court. HAGEL, Judge, filed
an opinion
concurring in part and dissenting in part. GREENBERG, Judge, filed a
dissenting opinion in which
HAGEL, Judge, joined in part.
KASOLD, Chief Judge: World War II veteran Thomas C. Leavey, Jr., appeals
through
counsel a May11, 2012, BoardofVeterans’Appeals (Board)decision that denied
entitlement to (1) a
compensable disability rating for bilateral hearing loss prior to June 9,
2009, and (2) a disability
rating in excess of 10% for bilateral hearing loss from June 9, 2009. Mr.
Leavey argues that, during
a March 2011 hearing before the Board, the Board member conducting the
hearing failed to
discharge his dual duties to fully explain the issues in Mr. Leavey’s case
and suggest that he submit
1
As of issuance, Mr. Gunn is no longer General Counsel; Tammy L. Kennedy is
Acting General Counsel.
Judge Bartley recused herself from this matter.
2

overlooked evidence, in violation of 38 C.F.R. § 3.103(c)(2) and this Court’s holdings in Bryant v. Shinseki, 23 Vet.App. 488 (2010), and Procopio v. Shinseki, 26 Vet.App. 76 (2012). Following oral
argument before a panel of the Court, the case was submitted for en banc
consideration to address
the scope of a Board member’s duties at a hearing, including whether a
Board member must explain
what is needed to warrant referral for an extraschedular rating when the
veteran challenges the
disability rating assigned to his service-connected disorder. See U.S. VET.
APP. INT. OP. PROC.
VII(b)(2)(A).
As discussed below, the Court reiterates the holdings in Bryant and Procopio, and holds that,
where the appropriate disability rating is at issue in a case, the duty to fully explain outstanding,
material issues pursuant to 38 C.F.R. § 3.103(c)(2) generally requires a Board member to explain
(1) that a disability rating is assigned based on the symptoms and severity of the disability, as well as its effects on employment, and (2) why the VA regional office (RO) did not assign a higher (or
the highest) schedular disability rating. Moreover, the duty to explain encompasses components of
the disability rating determination, such as extraschedular consideration, when such a component
is at issue in the case. Although we find in this case that the Board member at Mr. Leavey’s March
2011 Board hearing did not fully comply with the requirements imposed by § 3.103(c)(2), we also
find that the Board member’s errors were rendered not prejudicial by subsequent development of Mr. Leavey’s case. Accordingly, the May 11, 2012, Board decision on appeal will be affirmed.
I. FACTS
Mr. Leavey served honorably on active duty from May 1943 to November 1945
in the U.S.
Marine Corps, including service in the Pacific Theater of World War II. He
also served on active
duty in the U.S. Army from September 1951 to September 1957.
In May 1998, Mr. Leavey filed a claim for VA disability benefits for right-
ear hearing loss.3
Following initial denials of his claim and a 2003 Board remand for an
audiological examination, a
VAexaminerin November2006 recorded hearing loss andfurtheropinedthatMr.
Leavey’s right-ear
Although Judge Greenberg, joined by Judge Hagel, implies that Mr. Leavey
has waited 70 years for the
benefits to which he is entitled, see post at 28, Mr. Leavey did not seek
benefits for right-ear hearing loss until 1998, or
for his left-ear hearing loss until 2007, and he has not requested that
his appeal be expedited at the Court.
3
2

hearing loss was at least as likely as not caused by his service in World
War II. In January 2007, the
RO awarded service connection for Mr. Leavey’s right-ear hearing loss,
effective May 18, 1998, the
date of his claim, but assigned a noncompensable disability rating based
on his audiological tests,
see 38 C.F.R. § 4.85 (2006). In its rating decision, the RO addressed
possible entitlement to
extraschedularconsideration, but foundthattheevidencedid
notreflectanunusualcaseinadequately
contemplated by schedular standards.
In April 2007, Mr. Leaveyrequested an “increase for my service connected
‘bilateral hearing
loss,'” which the RO treated as (1) a request for a higher disability
rating for his right-ear hearing
loss,4
and (2) a claim for benefits for left-ear hearing loss. R. at 613. As part
of his application, Mr.
Leavey submitted a March 2007 audiological examination conducted by an
audiologist who was a
VA employee, but actingin his privatecapacityin givingtheexamination. This
audiologist recorded
Mr. Leavey’s bilateral hearing ability, based on puretone testing and the
Maryland CNC speech
discrimination test, and opined that Mr. Leavey’s bilateral hearing loss
as likely as not began during
his service in World War II.
ASeptember2007VAexaminer,however,opinedthatMr.Leavey’s left-earhearingloss
was
not “caused by or a result of military service” because he had “normal
hearing of the left-ear during
and shortly after military service.” R. at 586. A June 2009 VA examiner
also opined that Mr.
Leavey’s left-ear hearing loss was not caused by service because he had
normal hearing shortly after
separation. That examiner noted Mr. Leavey’s complaint that he “can’t hear
the [television], wife’s
voice, and certain alphabet sounds,” but the examiner opined that Mr.
Leavey’s hearing loss had no
significant occupational effects and no effects on his usual daily
activities. R. at 545. Both
examination reports also recorded Mr. Leavey’s current bilateral hearing
ability.
The RO denied service connection for left-ear hearing loss, and continued
Mr. Leavey’s
noncompensable disability rating for right-ear hearing loss.
4
Mr. Leavey filed a Notice of
Although Mr. Leavey’s April 2007 submission was referred to in record
documents as a claim for an increased
disability rating, it was accompanied by the March 2007 audiological
report and filed within the appeal period of the
January 2007 rating decision, such that it continued his original claim
for benefits. See Mayhue v. Shinseki, 24 Vet.App.
273, 280 (2011) (“‘New and material evidence received prior to the
expiration of the appeal period . . . will be considered
as having been filed in connection with the claim which was pending at the
beginning of the appeal period.'” (quoting
38 C.F.R. § 3.156(b))). Despite these references to a claim for an
increased disability rating, the Board’s statement
reflects its understanding that the period of consideration for right-ear
hearing loss dated back to Mr. Leavey’s original
1998 claim, see Record (R.) at 4, such that any references to a claim for
an increased rating were not prejudicial.
3

Disagreement (NOD), which was followed by issuance of a Statement of the
Case (SOC) and Mr.
Leavey’s filing of a Substantive Appeal (SA).
InMarch2011,Mr.andMrs.Leaveyappearedwith his registered,
nonattorneyrepresentative
at a Board hearing. Mr. Leavey’s representative noted the issues on appeal
and initiated questioning
of Mr. Leavey. The Board member interrupted the questioning to clarify
that the issues on appeal
were service connection for left-ear hearing loss and an increased rating
for right-ear hearing loss.
Mr. Leavey’s representative agreed and then solicited information from Mr.
and Mrs. Leavey
regarding their understanding of the onset and degree of his hearing loss,
to include, inter alia,
testimony that Mr. Leavey (1) believed his hearing loss in both ears began
in service, (2) continued
working after service, (3) had worsening hearing since his 2009
audiological examination, and
(4) had difficulty hearing his wife. The Board member asked a few
clarifying questions throughout
the hearing.
In May 2011, the Board granted service connection for left-ear hearing
loss and remanded
the matter to obtain recent treatment records and to provide another
audiological examination to
ascertain the current level of Mr. Leavey’s bilateral hearing loss. The
Board directed the examiner
to “fullydescribethefunctionaleffectscausedby[Mr. Leavey’s]
bilateralhearingloss disability”and
stated that Mr. Leavey had the right to submit additional evidence and
argument on the remanded
issues. R. at 241-42. In August 2011, Mr. Leavey underwent the requested
VA audiological
examination, which recorded Mr. Leavey’s current bilateral hearing ability
and described the
functional effects of Mr. Leavey’s disability. After the RO assigned a
noncompensable disability
rating for bilateral hearing loss in September 2011, the Board again
remanded the claim in January
2012 to obtain potentially relevant treatment records not in the claims
file.
Following a February 2012 SOC, the Board issued the decision on appeal in
May 2012. The
Board assigned a 10% disability rating for bilateral hearing loss,
effective June 9, 2009, but denied
entitlement to a higher disability rating for any other period. The Board
found that the June 2009
VA examination report showed that Mr. Leaveywas entitled to a 10%
disabilityratingand that, even
though the August 2011 VA examination failed to yield results that met
regulatory thresholds for a
compensabledisabilityrating,theresultsoftheAugust 2011examination were”
substantiallysimilar
to the results of the June 2009 VA examination,” and the doubt was
resolved in Mr. Leavey’s favor.
4

R. at 15. The Board also discussed the impact of Mr. Leavey’s hearing
loss on his daily life, but
found that the schedular rating criteria reasonablydescribed Mr. Leavey’s
disability and that referral
of his claim for extraschedular consideration was not warranted. R. at 17.
This appeal followed.
II. PARTIES’ ARGUMENTS
On appeal, Mr. Leavey notes the Court’s caselaw that a Board member at a
hearing must
“fully explain the issues still outstanding that are relevant and material
to substantiating the claim,”
and 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.” Bryant, 23 Vet.App.
at 496 (citations omitted).
Mr. Leavey argues that the Board member at his March 2011 Board hearing
failed to (1) fully
explain the issues in his appeal, including why his claim had been denied
by the RO, and (2) suggest
that he submit additional evidence. He also contends that he was not told
that he could submit
additional lay or medical evidence regarding the functional effects of his
hearing loss and its impact
on his daily activities, which could lead to a referral for an
extraschedular rating, since these
functional effects, he alleges, are not contemplated by the mechanical
rating criteria of 38 C.F.R.
§ 4.85 (providing disability ratings for hearing loss based on results of
audiological tests). Finally,
in his reply brief and at oral argument, Mr. Leavey argued that the Court
should remand his case
pursuant to the U.S. Court of Appeals for the Federal Circuit’s (Federal
Circuit’s) decision in Nat’l
Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 710 F.3d
1328 (Fed. Cir. 2013)
(NOVA), regarding an invalid rule VA promulgated in August 2011 related to
Board hearings.
In his written briefing, the Secretary disputed Mr. Leavey’s arguments.
The Secretary noted
that (1) the Board member clarified the issues on appeal for those at the
hearing, and (2) Mr.
Leavey’s representative elicited information regardingthe onset, progress,
and current severityof his
hearing loss. The Secretary further noted that service connection for left-
ear hearing loss was
granted following the hearing and, based on testimony at the Board hearing
that Mr. Leavey’s
condition had worsened since 2009, an additional audiological examination
was provided.
Accordingly, the Secretary argued that any alleged failure of the Board
member to discharge his
duties was not prejudicial.
5

At oral argument, the Secretary conceded error in general (without
specifying the error), but
again contended that no prejudice resulted, because the Board granted
service connection for Mr.
Leavey’s left-ear hearing loss and remanded his claim in May 2011 and
January 2012 to obtain all
evidence necessary to fully adjudicate the claim. The Secretary
essentially argued that there simply
was no more evidence to be submitted and, as a result, any error was
nonprejudicial.
III. ANALYSIS
A. Scope of the Board Member’s Duties at a Hearing
The purpose of a Board hearing is to “permit the claimant to introduce
into the record, in
person, anyavailable evidence which he or she considers material and
anyarguments or contentions
with respect to the facts and applicable law which he or she may consider
pertinent.” 38 C.F.R.
§ 3.103(c)(2) (2014).5
In furtherance of that purpose, “[i]t is the responsibility of the [VA]
employee . . . 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.” Id.
Otherwise stated, the Board member’s role at the hearing is to assure that
a claimant
understands the essential issues in a given claim and what generally is
required to prevail in a claim,
so that the claimant can present appropriate evidence and argument during
and subsequent to the
Board hearing. See Previous HitProcopioNext Hit, 26 Vet.App. at 79 n.3 (“The purpose of those
duties is to ‘assure [the]
clarity and completeness of the hearing record,’ a critical . . .
component of a claimant’s right to a fair
and full adjudication before VA.” (quoting 38 C.F.R. § 3.103(c)(2)));
Bryant, 23 Vet.App. at 501
(Lance, J., concurring in part and dissenting in part) (“[T]he purpose of
a hearing is to provide the
claimant with an opportunity to submit favorable evidence. The duty to
fully explain the issues
exists to make that opportunity meaningful by ensuring that the appellant
understands what issues
most likely require the submission of favorable evidence . . . .” (
emphasis omitted)).
As stated in Bryant and Previous HitProcopioNext Hit, the dutyto fullyexplain issues requires
more than a listing
of the issues on appeal or a “generic statement of the scope of the claims
.” Previous HitProcopioNext Hit, 26 Vet.App.
5
In Bryant, we held that § 3.103(c)(2) applies to Board members presiding
over Board hearings. 23 Vet.App.
at 496.
6

at 81. Although a Board member is not required to “preadjudicate or
otherwise weigh conflicting
evidence prior to or at the hearing,” Bryant, 23 Vet.App. at 493, the
Board member nevertheless “has
a duty to fully explain the issues still outstanding that are relevant and
material to substantiating the
claim,” id. at 496, which requires a discussion regarding why the claim
was denied by the RO, i.e.,
“the missing elements in [the] claims.” Previous HitProcopioNext Hit, 26 Vet.App. at 81.
As to claims for benefits where service connection is at issue, the Board
member generally
is required to explain (1) the elements for establishing service
connection, see Bryant, 23 Vet.App.
at 493 (finding that it does not take preadjudication for a Board member
at a hearing to note “that–for
adisabilitycompensation claim–theissues arestatus as a veteran,
injuryordiseaseinservice,current
disability, and nexus between the current disability and the injury or
disease in service.”), and
(2) which elements remain unfulfilledaccordingto the RO, see Bryant, 23
Vet.App. at 496 (“[W]hen
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’s
explanation and discussion should
be centered on these issues.”).
As to claims for benefits where the appropriate disabilityratingis at
issue, the Board member
generally is required to explain (1) that a disability rating is assigned
based on the symptoms and
severity of the disability, as well as its effects on employment, and (2)
why the RO did not assign
a higher (or the highest) schedular disability rating, see Previous HitProcopioNext Hit, 26
Vet.App. at 81 (Board member
must explain “the missing elements in [the] claims”); AB v. Brown, 6 Vet.
App. 35, 38 (1993)
(claimant is presumed to be seeking the maximum benefit allowed by law and
regulation).
Moreover, if the diagnostic code employed by the RO is premised on a
specific measurement or test
result rather than a review of the symptoms and severity of the disability,
the Board member
generally should explain that requirement for the higher disability rating.
6
Cf. Ingram v. Nicholson,
21 Vet.App. 232, 256-57 (2007) (“It is the pro se claimant who knows what
symptoms he is
In Vazquez-Flores v. Peake, 22 Vet.App. 37, 43 (2008), rev’d on other
grounds sub nom. Vazquez-Flores
v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009), we held that notice of the
kind stated in the text accompanying this footnote
was required to be provided to a claimant upon the filing of an increased
rating claim pursuant to 38 U.S.C. § 5103(a),
but the Federal Circuit overturned that holding because it determined that
section 5103(a) did not require such specific
notice. See 580 F.3d at 1277. Board hearings, however, are governed by the
requirements of § 3.103(c)(2), and–in
contrast to notice required by section 5103(a), which is designed to be
rendered before a claim has been developed and
therefore is generic in nature–a Board hearing is an individualized, ”
personal” hearing, Arneson v. Shinseki, 24 Vet.App.
379, 382 (2011), that occurs after the claim has been developed and an RO
decision has been rendered.
6
7

experiencing and that are causing him disability, . . . . [and] it is the
Secretary who knows the
provisions of title 38 and can evaluate whether there is a potential under
the law to compensate an
averred disability based on a sympathetic reading of the material in a pro
se submission.” (citations
omitted)).
Similarly, if referral for extraschedular consideration is at issue in the
case, the Board
membershould discuss 38C.F.R.§3.321(b)(1);i.e.,explain
thatreferralforanextraschedularrating
is warranted when the record reflects an “exceptional or unusual
disability picture with such related
factors as marked interference with employment or frequent periods of
hospitalization as to render
impractical the application of the regular schedular standards.”7
Cf. Anderson v. Shinseki,
22 Vet.App. 423, 429 (2009) (extraschedular rating consideration is a
component of the
determination regarding the appropriate disability rating). And, of course,
if other issues come up
during the course of the hearing that appear outstanding and material to
the increased rating claim,
§ 3.103(c)(2) requires the Board member to explain them as well. See, e.g
., Rice v. Shinseki,
22 Vet.App. 447, 449 (2009) (“TDIU [total disability based on individual
unemployability] is best
understood as part of an initial claim . . . [or] claim for increased
compensation.”); Bradley v. Peake,
22 Vet.App. 280, 294 (2008) (special monthly compensation is “to be
accorded when a veteran
becomes eligible without need for a separate claim”).
Although Judge Greenberg submits that extraschedular consideration should
be discussed at every Board
hearing, such a suggestion ignores the fact that such consideration is for
exceptional cases where the rating schedule is
inadequate, see 38 C.F.R. § 3.321(b) (2014) (permitting referral for
extraschedular consideration in “[e]xceptional
cases”), and therefore not warranted or even appropriate for discussion at
a Board hearing unless extraschedular
consideration is at issue in the case. See Bryant, 23 Vet.App. at 496 (“[W]
hen an element of the claim is not an issue
in an appellant’s case, there is no need for the hearing officer to
discuss it.”).
Additionally, although Judge Hagel believes that extraschedular
consideration is always at issue in hearing loss
claims because such claims are rated on a mechanical application of the
rating criteria, Lendenmann v. Principi,
3 Vet.App. 345, 349 (1992), a referral for extraschedular consideration
requires both a showing of (1) an exceptional
disability picture not contemplated by the rating schedule and (2) the
presence of governing norms, such as marked
interferencewithemploymentor frequenthospitalization, Thun v. Peake,22 Vet.
App. 111, 115-16 (2008). Accordingly,
extraschedular consideration is not raised in a given case unless the
matter is raised by the claimant or there is evidence
of both these requirements, and there is no basis for presuming that every
hearing loss case involves an exceptional
disability picture with governing norms such as marked interference with
employment or frequent hospitalization.
7
8

In terms of practice, the relevant administrative-appeal and decisional
documents generally
will provide the framework for most of the discussion.8
In particular, the Board should look to the
most recent decisional document—which may be the most recent SOC or
Supplemental SOC
considering additional evidence—and explain to the claimant what element
or elements of the claim
were found deficient by that decision and what types of evidence would
help assist the appellant in
prevailing as to those issues. See Bryant, 23 Vet.App. at 496 n.3 (“The
RO’s rating decision and
Statement of the Case . . . will likelyassist the hearing officer in
identifying the outstandingissues.”);
see also 38 U.S.C. § 7105(d)(1) (SOC shall include, inter alia, “[a]
citation to pertinent laws and
regulations and a discussion of how such laws and regulations affect the
agency’s decision”).
To be sure, as we held in Bryant, and emphasize today, although Board
hearing officers have
to be familiar with the claims file, a Board member is not required to
preadjudicate a claim, or assess
the credibility and probative value of the record evidence to determine
the missing elements in that
claim. See Bryant, 23 Vet.App. at 493 (“Nothing in § 3.103(c)(2) supports
the appellant’s contention
thattheregulation requires ahearingofficerto
preadjudicateorotherwiseweighconflictingevidence
prior to or at the hearing.”). Nor is the Board member required to mine
the record for all latent
issues, or discuss what regulations arepotentiallyapplicableto all such
issues, or explain all possible
routes to benefits. Id. at 496 (“[W]hen an element of the claim is not an
issue in an appellant’s case,
there is no need for the hearing officer to discuss it.”).
Moreover, although the Board member must be engaged at the hearing, see id
., there is no
inherent violation of § 3.103(c)(2) when a Board member asks minimal
questions or turns the
hearing over to a representative.9
The aforementioned requirements ultimatelyarethe responsibility
of the Board member, but, in short, it does not matter who does the
talking, as long as the hearing
transcript reflectsthat(1)theissuesonappeal werefullyexplained, (2)the
submissionofoverlooked
evidence was suggested, and (3) the claimant understood the outstanding
issues material to
The “relevant administrative-appeal and decisional documents” generally
include the RO decision, NOD,
SOC, SA, and any Supplemental SOC.
Although the Court was critical of the Board member in Previous HitProcopioNext Hit who ”
turned the hearing over to Mr.
Procopio’s [nonattorney] representative and did not ask any questions,” 26
Vet.App. at 81 (emphasis in original), the
primary basis for the reproach was the Board member’s inaction in the face
of (1) Mr. Procopio’s testimony “clearly
reflect[ing] that he was unaware of what type of evidence was necessary to
prove” his claim, and (2) Mr. Procopio’s
representative proceeding under a false assumption that a nexus opinion
would substantiate the claim, id. at 82.
9
8
9

substantiating his claim. See Thomas v. Nicholson, 423 F.3d 1279, 1285 (
Fed. Cir. 2005) (Board
members at a hearing are not required to question on any particular theory
of benefits unless it is
needed “to assure clarity and completeness of the hearing record”). This
will “‘assure [the] clarity
and completeness of the hearing record.'” Bryant, 23 Vet.App. at 492 (
quoting 38 C.F.R.
§ 3.103(c)(2)).
There are times, of course, when a Board member fails to fulfill his duty
to explain the issues
and suggest overlooked evidence. When that occurs, as in any case when
error occurs, the statute
requires us to take due account of the rule of prejudicial error. 38 U.S.C.
§ 7261(b)(2). In the
context of Board hearing errors, instead of reflexively remanding, our
assessment of prejudice “is
case specific, demonstrated by the appellant and based on the record.”
Bryant, 23 Vet.App. at 498;
see also Shinseki v. Sanders, 556 U.S. 396, 409-10 (2009) (noting that ”
the burden of showing that
an error is harmful normally falls upon the party attacking the agency’s
determination” and rejecting
a special rule otherwise in veterans benefits cases).10
The purpose for the Board hearing is to explain the outstanding issues in
a case, allow a
claimant to present testimony, and suggest overlooked evidence. However,
if the purpose is
ultimately fulfilled after the fact by the conveying of additional
information, evidentiary
development, or the submission of additional evidence, then the claim has
not been negatively
affected, i.e., there is no prejudice. See Overton v. Nicholson, 20 Vet.
App. 427, 435 (2006) (“[I]f
the error does not affect the ‘essential fairness’ of the adjudication[,]
then it is not prejudicial.”
(quoting McDonough Power Equip. v. Greenwood, 464 U.S. 548, 553 (1984))).
Judge Hagel notes that the U.S. Supreme Court’s decision in Sanders does
not prohibit this Court from
making, based on our “informed judgment,” “empirically based
generalizations about what kinds of errors are likely, as
a factual matter, to prove harmful.” 556 U.S. at 411-12. But there is no
empirical evidence supporting a generalized
determination that Board hearing errors are naturally prejudicial,
particularly where, as here, the Board remands the
matter for additional development following the hearing. Further, the
Supreme Court also noted (1) its previous
admonitions “against courts’ determining whether an error is harmless
through the use of mandatory presumptions and
rigid rules rather than case-specific application of judgment, based upon
examination of the record,” and (2) its
understanding that Congress “sought to discourage” presumptions that “may
lead courts to find an error harmful, when,
in fact, in the particular case before the court, it is not.” Id. at 407-
08. Accordingly, we decline Judge Hagel’s suggestion
to implement a rule that Board hearing errors in cases where the claimed
disability is hearing loss are presumptively
prejudicial.
10
10

B. Application
As noted above, Mr. Leavey was accompanied by Mrs. Leavey and represented
by his
registered, nonattorney representative at the March 2011 Board hearing.
The issues were, as the
Boardmembernoted,serviceconnection forleft-earhearingloss
andtheappropriatedisabilityrating
for right-ear hearing loss. But, because Mr. Leaveywas contesting his
assigned disability rating and
the RO explicitly denied referral for an extraschedular rating, this too
was an issue on appeal, and
the Board member should have advised Mr. Leavey that it was an issue
before the Board.
1. Service Connection for Left-Ear Hearing Loss
As to service connection for left-ear hearing loss, the hearing transcript
reflects the
representative’s questions on whether Mr. Leavey incurred or suffered from
hearing loss in service,
whether any medical opinions linked his hearing loss to service, and his
postservice occupation, as
well as the Board member’s questions on when Mr. Leavey’s left-ear hearing
loss began and the state
of his hearing over the years. Although the Board member did not explain
whythe claim was denied
by the RO (see R. at 385-86 (SOC denying benefits based on lack of nexus)),
the representative
specifically asked about nexus, and Mr. Leavey testified about the
connection between his hearing
loss and service, as well as the March 2007 audiological report opining of
such a connection.
Overall, the hearing transcript reflects an understanding by Mr. Leavey
and his representative
regarding the outstanding issue material to establishing service
connection for his left-ear hearing
loss, such that the “clarity and completeness of the hearing record” was
assured. 38 C.F.R.
§ 3.103(c)(2).
Moreover, the record does not reflect anyfailure of the Board member to
suggest overlooked
evidence. This duty relates to situations “when the record is missing any
evidence on [an] issue
[material to substantiating the claim] or when the testimony at the
hearing raises an issue for which
there is no evidence in the record,” Bryant, 23 Vet.App. at 496 (emphasis
added), and–by the time
of the Board hearing–Mr. Leavey had already submitted an audiological
opinion on the nexus issue.
Succinctly stated, Mr. Leavey fails to demonstrate any violation of § 3.
103(c)(2) as it pertains to his
11

left-ear hearing-loss claim.11
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. Increased Rating for Right-Ear Hearing Loss
As to an increased rating for right-ear hearing loss, the hearing
transcript reflects the
representative’s questions on Mr. Leavey’s current hearing condition, his
employment postservice,
and whether his condition has gotten worse since 2009. But neither the
Board member nor Mr.
Leavey’s representative discussed why the RO did not assign a higher (or
the highest) schedular
disability rating, or what was needed to have his claim referred for
extraschedular
consideration—despite the RO explicitly considering and denying referral
for extraschedular
consideration. See R. at 650. Moreover, reviewing the hearing transcript
as a whole, it is not clear
that Mr. Leavey understood what evidence was needed to obtain a higher
schedular disability rating
or referral for extraschedular consideration. To that extent, the Board
member did not fulfill the
dictate of § 3.103(c)(2) to fully explain the outstanding issues material
to substantiating the claim
and ensure the “clarity and completeness of the hearing record” in this
case.
On the other hand, the record does not reflect any failure of the Board
member to suggest
overlooked evidence. By the time of the Board hearing, the record already
contained numerous
audiological evaluations documenting the current severity of Mr. Leavey’s
hearing loss, including
one private audiological examination submitted by Mr. Leavey. There was a
June 2009 VA
examination report in the record that addressed the occupational effects
of Mr. Leavey’s hearing loss
and the effects on his usual daily activities. See Martinak v. Nicholson,
21 Vet.App. 447, 455-56
(2007) (Secretary is required to ensure that VA medical examiners obtain
evidence about the
functional effects of hearing loss specifically). Other record evidence
also addressed the functional
effects of Mr. Leavey’s hearing loss. See R. at 678 (November 2006 VA
examination revealing
difficulties with “soft speech” and talking on the telephone), 619 (March
2007 private audiological
examination revealing “traditional challenges hearing and understanding in
the presence of
11
Even assuming some deficiency at the Board hearing with regard to the left-
ear hearing-loss claim, we note
that Mr. Leavey was granted service connection for this disability two
months after the Board hearing, such that any
possible deficiency was not prejudicial to the claim. See Bryant, 23 Vet.
App. at 498 (reviewing Board member’s error
for prejudice).
12

background noise and when in group situations”), 545 (June 2009 VA
examination revealing
difficulties hearing the television, his wife’s voice, and “certain
alphabet sounds”), 167 (July 2009
VA audiology consult revealing difficulties hearing the television and
hearing his wife in
conversation both at home and “at home in noise”). Further, Mr. Leavey and
his wife both testified
at the hearing regarding the functional effects of Mr. Leavey’s hearing
loss. On this record, the
hearing discussion did not reveal any additional evidence that might be
available that had not been
submitted. Succinctly stated, Mr. Leavey fails to demonstrate error in
this regard. See Hilkert,
supra.
Moreover, Mr. Leavey fails to demonstrate prejudice from the failure of
the Board member
to fully explain the outstanding material issues. See Sanders, 556 U.S. at
409-10. Specifically,
although Mr. Leavey argues that, but for the Board member’s failure to
apprise him that evidence of
his disability’s functional effects could lead to an extraschedular rating,
he may have obtained
additional audiology tests or other evidence detailing the impact of his
hearing loss, the Secretary
correctly notes that, following the March 2011 hearing, the Board issued a
decision remanding Mr.
Leavey’s claim “for a VA examination in order to assess the current
severity of [his] service-
connected right ear hearing loss,” based on assertions during the hearing
that “his hearing ha[d]
gotten worse since the June 2009 examination.” R. at 240. The remand
emphasized that, in addition
to conducting the appropriate audiological testing, “[t]he examiner should
also fully describe the
functional effects caused bythe [appellant]’s bilateral hearing loss
disability.” R. at 241. The record
reflects that an August 2011 audiological examination included the
necessary tests and that the
examiner described the functional-effects evidence. After the Board
hearing, Mr. Leavey also
submitted additional statements describing the functional effects of his
disability, which were
specifically addressed by the Board.
Although a claimant can always speculate that obtaining one more
audiological examination
or providing one more lay statement would have made the difference in his
case, we find here that
the evidence necessary to fully and properly adjudicate the claim was
obtained and that there is no
indication that Mr. Leavey had any additional, material information to
submit. Accordingly, we
further find that “the purpose of § 3.103(c)(2) was fulfilled.” Bryant,
23 Vet.App. at 499; see also
Sanders, 556 U.S. at 409-10.
13

Stated otherwise, because the Board remanded this matter specifically to
obtain, and in fact
did obtain, the evidence that Mr. Leavey suggests he would have submitted
but for the failure of the
Board member conducting the hearing, the Court can discern no prejudice.12
C. Alternative Argument
In his reply brief and at oral argument, Mr. Leavey argued that the Court
should remand his
case pursuant to the Federal Circuit’s NOVA decision and subsequent orders.
See Nat’l Org. of
Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 517 F. App’x 940 (
Fed. Cir. 2013) (NOVA II);
Nat’l Org. of Veterans Advocates, Inc. v. Sec’y of Veterans Affairs, 725 F.
3d 1312 (Fed. Cir. 2013)
(NOVA III). In summary, those orders required the Secretary to identify
and remedy cases in which
Board decisions were based on an invalid August 2011 rule purporting to
exempt employees
conducting Board hearings from the duties to fully explain the issues on
appeal and suggest the
submission of any overlooked evidence. See Smith v. Shinseki, 26 Vet.App.
406, 407-08 (2014).
The Secretaryconceded that the rule was invalid based on his failure to
follow the mandatorynotice
and comment requirements of the Administrative Procedure Act. Id. at 407.
In NOVA III, the
Federal Circuit approved a plan whereby the Secretary would conduct a
search for veterans affected
during the period the invalid rule was in effect and notify them that the
Secretary would be willing
to vacate the Board decisions and grant them another hearing. 725 F.3d at
1314.
Succinctly stated, Mr. Leavey fails to demonstrate that the NOVA orders
apply to this case.
Mr. Leavey’s Board hearing took place in March 2011, but the Secretary’s
invalid rule was not issued
Judge Greenberg comments that it is impossible to know what Mr. Leavey
might have submitted had he
understood how to substantiate his claim, see post at 26, but our
colleague fails to consider the fact that the very issues
that the Board member failed to explain at the hearing were either
substantiated (i.e., service connection) or further
developed (i.e., functional effects of disability). Mr. Leavey
subsequently was provided an audiological examination
that addressed the functional effects of hisdisability. He also made
additional statements regarding the functional effects
of his disability that reflect actual knowledge on his part of the need
for such evidence. Our statutory obligation to take
due account of the rule of prejudicial error mandates consideration of
these facts. See 38 U.S.C. § 7261(b)(2).
Moreover, although Judge Greenberg asserts that the majority is deciding
this case with a view to “protecting
the public fisc” at the expense of “all veterans who continue to suffer
harmful delays as a result of VA error,” post at 28,
it appears to us that reflexively remanding all cases in which a Bryant
error occurred and a veteran asserts, without proof
or specifics, that he would have submitted additional evidence, would
force the Secretary to review and readjudicate
claims where an error is harmless, in contravention of Sanders, and would
further slow the already heavily burdened VA
adjudicatory system to the detriment of most veterans, without benefit to
the individual veteran. See 556 U.S. at 409
(holding that courts should avoid rules that “increase the likelihood of
reversal in cases where, in fact, the error is
harmless. . . . [T]hat likelihood encourages abuse of the judicial process
and diminishes the public’s confidence in the
fair and effective operation of the judicial system.”).
12
14

until August 2011, suggesting that the Board member’s error was not based
on applying the wrong
rule, but was instead based on his falling short of the existing “right”
rule. See 76 Fed. Reg.
52,572-01 (Aug. 23, 2011). Moreover, in the decision on appeal, the Board
did not state that Bryant
had been replaced by a new rule, or that Board members at a hearing were
not required to fully
explain the issues on appeal or suggest the submission of any overlooked
evidence, or otherwise
indicate any reliance on the invalid rule.
IV. CONCLUSION
Because the Board member’s error at the hearing did not prejudice Mr.
Leavey, and because
Mr. Leavey makes no other persuasive arguments for remand, the May 11,
2012, Board decision on
appeal is AFFIRMED.
HAGEL, Judge, concurring in part and dissenting in part: I concur in the
result reached by
the majority and would affirm the Board decision on appeal. Otherwise, I
am pleased to join Judge
Greenberg’s dissenting opinion, except to the extent that (1) he would
find the failure to discuss the
possibility of referral for extraschedular consideration error in all
cases, (2) he would find that all
hearing officer errors are presumptively prejudicial, and (3) he dissents
from the result. I write
separately to expand on the importance of the hearing in the VA claims
adjudication process,
particularly as it relates to unrepresented claimants, and to explain the
ways in which I would go
further than the majority in assessing hearing officer errors in claims
for benefits for hearing loss.
The Court has been slow to examine what I believe is one of the most
important–if not the
most important–procedural rights accorded to veterans in the claims
adjudication process: the right
to a hearing before a member of the Board of Veterans’ Appeals (Board).
The Court began its
sojourn on this issue by affirming that 38 C.F.R. § 3.103(c)(2) (1991)
applied to Board hearing
officers in Douglas v. Derwinski, 2 Vet.App. 103 (1992), and has continued
to expand the breadth
of the right to a hearing and the duties of the hearing officer. Our most
recent case on the subject
is Previous HitProcopioNext Hit v. Shinseki, 26 Vet.App. 76 (2012).
15

In considering the critical nature of this phase of the adjudication
process, it is important to
keep in mind that VA is in the business of assisting veterans to obtain
the benefits to which they are
entitled. See generally 38 U.S.C. § 5103A (outlining VA’s duty to assist
claimants in developing
evidence to substantiate their claims). To be sure, this responsibility
entails weeding out claims that
have no basis, but even then the Agency’s purpose is to help, not impede,
the veteran in the
development of evidence to support the claim and in understandingthe
issues involved in the claim’s
substantiation. VAitselfhasrecognized–indeed,advocated–thisroleto
courtsandto Congress. See,
e.g.,Walters v.Nat’l Ass’n of RadiationSurvivors,473U.S. 305 (1985);
Judicial Review of Veterans’
Affairs: Hearing Before the H. Comm. on Veterans’ Affairs, 100th Cong. 78-
79, 446-58 (1988)
(testimony of VA General Counsel Donald L. Ivers) [hereinafter Hearing
Testimony].
In Walters, veterans challenged the constitutionality of 38 U.S.C. § 3404(
c) (1985), which
made it a crime for anyone assisting a veteran in an attempt to obtain his
or her veterans benefits to
charge or accept more than $10 in compensation. VA defended the statute.
Interestingly, VA’s
primary justifications for defending the $10 fee limitation were that (1)
free representation was
availabletoveteransthroughemployeesofthevariousveteransserviceorganization
and,thus, there
was no need to permit a lawyer to share in the benefits due the veteran;
and (2) VA acted in a
paternal fashion to assist the veteran in every way possible to obtain
benefits. In short, VA took the
position that its “paternalistic interest in protecting the veteran from
his own improvidence would
unquestionably justify a rule that simply prevented lawyers from
overcharging their clients.”
Walters, 473 U.S. at 365 (Stevens, J., dissenting).
The 1985 testimony of the VA General Counsel before the House Committee on
Veterans’
Affairs expressed the Agency’s opposition to the enactment of the Veterans
Judicial Review Act,
which would grant veterans the right to independent judicial review of
Agencydecisions. In defense
of VA’s position against passage of that legislation, the General Counsel
testified that
VA affords claimants de novo factual review by collegial bodies at both
the initial
and appellatestages,employingadjudicators with specialized knowledge of
veterans
law and medical expertise. Informal, nonadversarial hearings are provided
upon
request, and reasonable doubt in matters of evidence is resolved in the
claimants’
favor. Moreover, the Agency has instituted stringent quality control
procedures to
ensure the accuracy of its decisions.
Hearing Testimony at 452-53.
16

Thus, when opposing pieces of legislation, both of which Congress later
enacted, VA argued
that the hallmarks of its veteran-friendly system of adjudication were its
informal, nonadversarial
hearings and the de novo review by collegial bodies. Indeed, VA reasoned
that the application of
those procedures was so veteran-friendly that there was simply no need for
lawyer representation in
the administrative process or for judicial review of the outcome of that
process. The Veterans’
Judicial Review Act, which eliminated the $10 fee limitation and
instituted judicial review, did
nothing to change these elements of the VA claims process. It is therefore
difficult for me to
understand why VA should be so opposed to requiring its hearing officers
to fully explain the issues
before them and to inform the claimant of evidence that could be provided
to VA to help
demonstrate that the claimant is entitled to the benefit sought. It is
even stranger that the majority
indulges VA’s resistance to this view by limiting VA’s stated obligation
in this regard.
The VA adjudication process is comprised of various stages, each designed
to inform the
veteran of (1) his or her rights, (2)VA’s decisions made during the course
of the claim’s adjudication,
and (3) the reasons for those decisions. First, at the time the claim is
filed, VA provides the veteran
with a letter that describes what is required to substantiate the claim,
details what is the veteran’s
responsibility, and explains what responsibility is assigned to VA. See 38
U.S.C. § 5103(a). This
places the veteran in the position to find evidence, perhaps known only to
the veteran, that might
support the claim. Second, VA informs the veteran of its decision on the
claim. See 38 U.S.C.
§ 5104. On most occasions, the actual rating decision is enclosed with
the letter of notification.
While the contents of the letter are very general, the rating decision
sets forth the issue before VA,
the evidence considered, the decision on the claim, and the reasons and
bases for the decision.
38 U.S.C. § 5104(b). The letter and decision also explain how the veteran
can obtain review of the
decision. 38 U.S.C. § 5104(a). If the decision is adverse to the veteran
and the veteran disagrees
with the decision, the veteran may file a Notice of Disagreement. See 38 U.
S.C. § 7105(a). VA then
sends the veteran a Statement of the Case. 38 U.S.C. § 7105(d)(1). That
document is intended to
be a more detailed explanation of VA’s decision, along with the text of
all the regulations that are
potentially applicable to a decision on the claim. See id. If the veteran
still disagrees with the denial,
he may submit his claim to the Secretary for a final review by filing a
Substantive Appeal to the
Board. See 38 U.S.C. § 7105(d)(3).
17

Although the procedure described above is well known to those who
regularly tread the oft
hazardous ground of the law of veterans benefits, I believe it important
to recount it. This recitation,
I trust, illustrates the fact that the final chance for a veteran to make
his or her voice heard is at the
Board. Thus, when the right to a hearing is invoked, the veteran can
actually speak to and be spoken
to by the very person who will decide the veteran’s case. See 38 U.S.C. §
7107(c). As it was with
Dorothy and her sidekicks the Tin Man, the Cowardly Lion, and the
Scarecrow, it is the veteran’s
opportunity to peek behind the curtain that heretofore has masked the
institution and then to engage
with the person who really pulls the levers. See Arneson v. Shinseki, 24
Vet.App. 379, 383 (2011).
This being the case, I believe that the term “hearing” is an unfortunate
choice. As Judge
Greenberg points out, the word “hearing” gives off the aura of a sterile,
judicial setting in which one
adversary squares off against another, each armed with its own evidence
and plying the technical
rules of procedure and evidence to “win” the case. From my reading of VA’s
own regulations, and
from the history cited above, this setting is far from what VA intends
that this engagement between
the usually unrepresented veteran and the Agency decisionmaker to be. Were
I to name this event,
I would instead call it a “meeting,” as that term better represents the
interaction that VA has so often
described should occur between a veteran and the Agency. In its simplest
terms, it provides the
opportunity for the veteran to ask the very questions a young child asks
his parents when denied a
toy that he believes has been promised to him: “Why can’t I have it?” and ”
How can I get it?” I
believe the veteran is entitled to an answer more satisfying than the one
that I often gave my own
children: “Because I said so.”
With this understanding, I conclude that it is time for the Court to
revisit the duty of the
Board member regarding preadjudication. We have already held that the
duties under 38 C.F.R.
§ 3.103(c) are dual: to explain the issues and to suggest the submission
of overlooked evidence that
could substantiate the claim. Bryant v. Shinseki, 23 Vet.App. 488, 492 (
2010). We also stated in
Bryant that the Board member has a duty to review the record prior to the
hearing. Id. at 493. VA’s
own statute requires that the person who conducts the hearing must be the
same person who actually
makes the decision. 38 U.S.C. § 7107(c). VA regularly holds the record
open after the hearing to
permit the claimant to submit additional evidence prior to a final
decision. Why, then, is there not
an obligation to, during the course of the already mandated review prior
to the hearing, make at least
18

initial judgments on the credibility and weight of the evidence already
of record and inform the
veteran of what additional evidence is needed to succeed?
It appears to me that preadjudication should be the rule and, indeed,
would make the hearing
more meaningful to the veteran and more true to VA’s stated desire (and
statutory duty) to assist the
veteran. Remember, VA is not in the business of finding ways to deny
benefits to veterans; VA is
in the business of assisting veterans in obtaining all of the benefits to
which they are entitled. I fail
to see that preadjudication places any additional burden on the Board
member, because all that is
required is for the member to do before the hearing what he currently must
do after it. Moreover,
preadjudication would speed up a process that has traditionally been
criticized, rightly or wrongly,
for its tortoise-like speed.
Additionally, I take issue with this portion of the majority’s decision:
Moreover, although the Board member must be engaged at the hearing, there
is no
inherent violation of § 3.103(c)(2) when a Board member asks minimal
questions
or turns the hearing over to a representative. The aforementioned
requirements
ultimately are the responsibility of the Board member, but, in short, it
does not
matter who does the talking, as long as the hearing transcript reflects
that (1) the
issues on appeal were fully explained, (2) the submission of overlooked
evidence
was suggested, and (3) the claimant understood the outstanding issues
material to
substantiating his claim. This will “‘assure [the] clarity and
completeness of the
hearing record.'”
Ante at 9-10 (citations and footnote omitted). The majority state that
there is no error on the part
of the hearing officer in these circumstances, but Icannot agree. The
duties to explain the issues and
suggest the submission of overlooked evidence are, by regulation, assigned
to the hearing officer,
and the failure to execute them is an “inherent violation” of § 3.103(c)(
2) regardless of what the
hearing transcript shows. The burden of ensuring that the claimant
understands the issues and
evidence necessary to substantiate his or her claim cannot be foisted onto
the claimant, particularly
one who is either self-represented or represented by a nonattorney. It
seems to me that what the
majority are really saying is that the error on the part of the hearing
officer is nonprejudicial if the
hearing transcript shows, essentially, actual knowledge on the part of the
claimant of the issues and
the evidence necessary to substantiate the claim. I agree, as discussed
further below.
19

With this as background, I turn to the merits of this case and why I
believe that the majority
decision should go much further.
It is statutorily established that, before the Board renders a decision on
a claim, the claimant
must be afforded an opportunity for a Board hearing. 38 U.S.C. § 7107(b) (”
The Board shall decide
any appeal only after affording the appellant an opportunity for a hearing
.”). The purpose of VA
hearings is “to permit the claimant to introduce into the record, in
person,” pertinent evidence and
arguments with respect to his claim, including personal testimony from the
claimant or witnesses
under oath or affirmation. 38 C.F.R. § 3.103(c)(2) (emphasis added); see
38 C.F.R. § 20.700(a)
(2014) (“A [Board] hearing on appeal will be granted if an appellant . . .
expresses a desire to appear
in person.”). As the Court has previously acknowledged,
[u]nlike a traditional judicial appeal where review is of the record, the
opportunity
for a personal hearing before the Board is significant because it is the
veteran’s one
opportunity to personally address those who will find facts, make
credibility
determinations, and ultimately render the final Agency decision on his
claim.
Arneson, 24 Vet.App. at 382 (emphasis added). The Court has also
previously acknowledged the
unique nature and importance of the hearing officer’s duties under § 3.
103(c)(2), holding that errors
by hearing officers are unlike notice errors in other contexts, such that
preadjudicatory notice of the
elements necessary to establish entitlement to benefits is not sufficient
to render a hearing officer’s
error harmless. See Bryant, 23 Vet.App. at 498.
The United States Supreme Court has held that “courts may sometimes make
empirically
based generalizations about what kinds of errors are likely, as a factual
matter, to prove harmful.”
Sanders v. Shinseki, 556 U.S. 396, 411 (2009) (citing Kotteakos v. United
States, 328 U.S. 750, 760-
61 (1946)). The Supreme Court also stated that this Court is the proper
authority “to exercise an
informed judgment as to how often veterans are harmed bywhich kinds of
notice errors.” Id. at 412.
In my informed judgment, the failure to explain the possibility of
referral for consideration of an
extraschedular disability rating and to suggest evidence that would
support the assignment of that
rating in claims for benefits for hearing loss are per se errors and are
presumptively prejudicial.
Schedular disability ratings for hearing loss are assigned based solely on
the mechanical
application of the results of specified hearing examinations to a chart
published as part of 38 C.F.R.
§ 4.85. See Lendenmann v. Principi, 3 Vet.App. 345, 349 (1992); see also
38 C.F.R. §§ 4.85 (2014),
20

4.86 (2014), 4.87 (2014). Because of this, the Court has held that VA
audiology examiners are
required to discuss the functional effects of a claimant’s hearing loss.
See Martinak v. Shinseki,
21 Vet.App. 447, 455 (2007). Such a discussion is necessary specifically
to permit the adjudicator
to consider whether referral for consideration of an extraschedular
disability rating is warranted. Id.
(“Unlike the rating schedule for hearing loss, [38 C.F.R.] § 3.321(b)
does not rely exclusively on
objective test results to determine whether a referral for an
extraschedular rating is warranted.”). It
follows, then, and I would hold today, that in all cases where the claimed
disability is hearing loss,
and regardless of whether the claim has already been granted, (1) the
hearing officer must advise a
claimant that there is a possibility of referral for consideration of an
extraschedular disability rating,
which takes into account factors other than objective audiological test
results; and (2) the hearing
officer must suggest the submission of evidence related to the functional
effects of hearing loss, if
such evidence is not already in the record.
In light of the importance of the hearing in the VA claims adjudication
process, as well as
the necessityof developing evidence describing the functional effects of
hearing loss, and consistent
with the guidance of Sanders, I would additionally hold–again, in claims
for benefits for hearing
loss–that the failure of a hearing officer to explain the possibility of
referral for consideration of an
extraschedular disability rating or to suggest the submission of
overlooked evidence related to the
functional effects of hearing loss is presumptively prejudicial, subject
to rebuttal by the Secretary.
In other words, I conclude that such errors have, in the run of cases
concerning claims for benefits
for hearing loss, the “natural effect” of causing harm to the claimant.
Sanders, 556 U.S. at 412.
Although it is true that the Court in the past has only considered the
concept of the natural
effect of prejudice in preadjudication notice cases, the definition in
those cases is clear and equally
applicable here.
When notice [under 38 U.S.C. § 5103(a) of] how to substantiate a claim is
wholly
defective as to a key element needed to substantiate the claim, such that
the absence
of evidence on the key element will result in denial of the claim, the
natural effect is
that the claimant is deprived of a meaningful opportunity to participate
in the
processing of his claim.
Vazquez-Flores v. Shinseki, 24 Vet.App. 94, 105 (2010). Here, and in
virtually all claims for
benefits for hearing loss, entitlement to monetarydisability compensation
greater than that provided
21

by the mechanical application of hearing examination results to the
charts in § 4.85 can only be
established through the assignment of an extraschedular disability rating.
In cases of claims for
benefits for hearing loss, referral for consideration of an extraschedular
disability rating depends
entirely on the record evidence of the functional effects of a claimant’s
hearing loss. As a result, if
a claimant is not aware that such a possibilityexists, or he is not told
what kind of evidence is needed
to establish entitlement to that benefit–that is, when notice is “wholly
defective”–he is naturally
deprived of the opportunity to submit testimony and other evidence that is
likely uniquelywithin his
knowledge and that the adjudicator cannot divine by mechanically comparing
the objective scores
obtained from hearing tests to the values contained in the charts used to
assign schedular disability
ratings.
It is well settled that VA must adjudicate all issues expressly raised by
the claimant or
reasonably raised by the record. See Robinson v. Shinseki, 557 F.3d 1355,
1361-62 (Fed. Cir. 2009)
(holding that the Board is obligated to consider arguments or issues
raised by the record, even if not
raised by the claimant, and suggesting that the Board errs if it fails to
do so). Here, as in the majority
of cases before VA, Mr. Leavey was unrepresented by counsel at the time of
his Board hearing and
could not reasonably be expected to be aware of, let alone expressly raise,
the tangential issue of the
possibility of an extraschedular disability rating. The fact that
claimants before VA are, generally
speaking, legally unsophisticated and unrepresented by counsel weighs
heavily in favor of a finding
that–at least with respect to hearing loss, which is unique among the
conditions considered in the
disability rating schedule–the question of entitlement to referral for
extraschedular consideration is
always reasonably raised by the record and, therefore, the principle
underlying Robinson should
require the hearing officer to discuss it.
In Mr. Leavey’s case, VA considered the possibility of referral for
consideration of an
extraschedular disability rating exactly once prior to the Board hearing,
and then only cursorily, in
the January 2007 regional office decision that concerned only Mr. Leavey’s
claim for benefits for
right ear hearing loss. R. at 650 (“Consideration was given to possible
entitlement to an extra-
schedular evaluation for this condition. This is not warranted as there is
no evidence that the current
issue presents such an unusual disability case as to render impractical
the application of the regular
standards.”). A July 2009 Statement of the Case contains the text of 38 C.
F.R. § 3.321(b) in its
22

nearly 30-page recitation of the potentially applicable laws (R. at 368-
69), but (1) that issue is not
discussed in the regional office’s analysis (R. at 383-86); and (2) the
Federal Circuit has alreadyheld
that postdecisional documents are not sufficient to put claimants on
notice of the elements necessary
to establish entitlement to benefits, see Mayfield v. Nicholson, 444 F.3d
1328, 1334-35 (Fed. Cir.
2006), a principle that should apply equally in this context, given the
importance of the hearing in
the VA adjudication process.
Having said all this, in Mr. Leavey’s case I would find that (1) the
hearing officer erred by
failing to explain the issues present in the case, namely the possibility
of referral for consideration
of an extraschedular rating, but that the Secretary has carried his burden
of demonstrating that the
error is nonprejudicial; and (2) there was no error on the part of the
hearing officer in failing to
suggest the submission of overlooked evidence.
With respect to the error in explaining the issues, I note first that VA
undertook additional
development,includingprovidinganewaudiologicalexamination
andobtainingadditionaltreatment
records, after the Board hearing took place. The audiologist who examined
Mr. Leavey in August
2011 described the functional limitations that his hearing loss will
likely cause. The record also
contains numerous statements made by Mr. Leavey and his wife describing
the functional effects of
his disorder. Second, Mr. Leavey’s claims were granted: He was awarded
service connection for left
ear hearing loss and he was ultimately assigned a 10% disability rating
for bilateral hearing loss. In
other words, the record ultimately contained the evidence–whether it
existed at the time of the
hearing or whether it was developed during the post-hearing
remand–necessary to support Mr.
Leavey’s claims. “Accordingly, the ‘clarity and completeness of the
hearing record’ was intact with
respect to these disabilities and the purpose of § 3.103(c)(2) was
fulfilled.” Bryant, 23 Vet.App. at
499 (quoting 38 C.F.R. § 3.103(c)(2)). I would therefore conclude that
the Secretary has rebutted
the presumption of prejudice resulting from the hearing officer’s error.
As to the assertion that the hearing officer failed to suggest the
submission of evidence, the
Court has been clear that the duty to suggest evidence under § 3.103(c)(2)
is only violated “when the
record is missing any evidence on [an] issue [material to substantiating
the claim] or when the
testimony at the hearing raises an issue for which there is no evidence in
the record.” Bryant,
23 Vet.App. at 496. In this case, at the time of the March 2011 Board
hearing, evidence material to
23

substantiating Mr. Leavey’s claims included (1) evidence regarding the
severity of his right ear
hearing loss, (2) evidence that his left ear hearing loss was caused by
service, and (3) evidence of
the functional effects of his hearing loss to permit the adjudicator to
determine whether referral for
consideration of an extraschedular disability rating was warranted.
There is no dispute that, at the time of the March 2011 Board hearing, the
record already
contained numerous audiological evaluations demonstrating the current
severity of Mr. Leavey’s
right ear hearing loss, including one private examination that he
submitted himself. R. at 678-81
(November 2006 VA examination), 619-23 (March 2007 private examination),
582-86 (September
2007 VA examination), 544-48 (June 2009 VA examination). There was also
evidence that he was
exposed to acoustic trauma in service, R. at 1034-35 (March 1999 Notice of
Disagreement), 709
(March 2006 joint motion for remand), 678 (November 2006 VA examination),
619 (March 2007
private audiological examination), 617 (April 2007 statement in support of
claim), 545 (June 2009
VA examination), and that his left ear hearing loss was related to service,
R. at 619-23 (March 2007
private examination), 166-67 (July2009 VA audiology consult). Finally,
there was also evidence in
the record regarding the functional effects of Mr. Leavey’s hearing loss.
R. at 678 (November 2006
VA examination revealing difficulties with “soft speech” and talking on
the telephone), 619 (March
2007 private audiological examination revealing “traditional challenges
hearing and understanding
in thepresenceofbackgroundnoiseandwhenin group situations”), 545 (June
2009VAexamination
revealing difficulties hearing the television, his wife’s voice, and ”
certain alphabet sounds”), 167
(July 2009 VA audiology consult revealing difficulties hearing the
television and hearing his wife
in conversation both at home and “at home in noise”). Mr. Leavey and his
wife both also testified
at the hearing regarding the functional effects of Mr. Leavey’s hearing
loss. R. at 253-55. The
hearing discussion did not reveal any additional evidence that might be
available that had not been
submitted. “Under these circumstances, nothing gave rise to the
possibility that evidence had been
overlooked.” Bryant, 23 Vet.App. at 497. Accordingly, I would conclude
that the hearing officer
did not violate this portion of his duty under § 3.103(c)(2).
As a final matter, I note that–whatever the ultimate duty of the hearing
officer is found to be
by the Court–it is crucial that the duty not be reduced to a rote,
formulaic recitation of boilerplate
language. The purpose of the hearing is too important,
and–particularlybythe time the case reaches
24

the Board–the issues too specifically defined for a one-size-fits-all
statement that simply ticks the
boxes on an imaginary (or actual) checklist. The Board member conducting
the hearing should be
sufficiently versed in the record such that the outstanding issues are
clear and the missing evidence
is, well, evident, as it were, and he or she should therefore be more than
capable of discharging the
duties under § 3.103(c) in an individualized fashion.
GREENBERG, Judge, with whom HAGEL, Judge, joins in part, dissenting: I
dissent. At
issue is a veteran-friendlyregulation, consistent with the
Congressionalintent asold as the Republic.
See Hayburn’s Case, 2 U.S. (2 Dall.) 409, 410 n., 1 L. Ed. 436 (1792) (“[T]
he objects of this act are
exceedingly benevolent, and do real honor to the humanity and justice of [
C]ongress.”); see 1 Stat.
243 (“An Act to provide for the settlement of the Claims of Widows and
Orphans barred by the
limitations heretofore established, and to regulate the Claims to Invalid
Pensions.”). The regulation
here, 38 C.F.R. § 3.103(c)(2), is unnecessarilylimited bythe Court’s
opinion. That opinion wrongly
diminishes the importance of Board hearings to the veteran. First, the
hearing is an essential aspect
of a veteran’s claim and should be subject to exacting scrutiny to ensure
its fairness and compliance
with the law. Second, VA must consider referrals for extraschedular rating
in all compensation
claims, and that issue must be discussed at the hearing.
Third, hearing errors should be
presumptively prejudicial and should not be overlooked based upon the
Secretary’s or this Court’s
intuition that all evidence that could have been submitted was submitted.
When a veteran seeks a hearing before the Board, “[i]t is the
responsibility of the VA
employee . . . 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.” 38 C.F.R. § 3.103(c)(2). The hearing officer must ”
fullyexplain the issues still
outstanding that are relevant and material to substantiating the claim,”
and 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.” Bryant v. Shinseki, 23 Vet.App. 488, 496 (2010) (
per curiam) (citations
omitted). A “generic statement of the scope of the claims” will not
suffice; the Board must explain
25

why the claim was denied, i.e., “the missing elements in his claims.”
Previous HitProcopioNext Document v. Shinseki,
26 Vet.App. 76, 81 (2012). In fact, it was Congress that guaranteed
veterans, by statute, the
opportunityfor a hearing before the Board. 38 U.S.C. § 7107(b) (“The
Board shall decide anyappeal
only after affording the appellant an opportunity for a hearing.”).
The Secretary’s regulation provides that a Board member “may also be
known as a Veterans
Law Judge,” 38 C.F.R. § 19.2, but members of the Board are appointed by
the Secretary and thus are
VA employees. Members of the Board arenot independent from, but in fact
must ensurecompliance
with, the Congressional mandate that VA “make reasonable efforts to assist
a claimant in obtaining
evidence necessary to substantiate . . . the claim.” 38 U.S.C. § 5103A(a).
VA must consider extraschedular referral for every veteran’s compensation
claim. See
38 C.F.R. § 3.321(b)(1) (2014); see also Thun v. Peake, 22 Vet.App. 111,
115-116 (2008).
Accordingly,extraschedularconsideration is
anissuethatmustbefullyexplainedataBoardhearing.
See Bryant, 23 Vet.App. at 496.
When a Board member fails to explain the issues on appeal or suggest the
submission of
additional evidence, it is impossible to know what the veteran could have
said or submitted in
support of the claim. When the Court cannot say with confidence whether
the veteran could have
submitted additional evidence or argument to support the claim in the
absence of the Board hearing
officer’s error, “prejudice arises from the failure of the hearing officer
to assure the clarity and
completeness of the hearing record . . . and the lost additional
opportunity to try and submit such
evidence before his claim finally was adjudicated.” Bryant, 23 Vet.App. at
499 (internal quotation
marks and citations omitted) (citing Wagner v. United States, 365 F.3d
1358, 1365 (Fed. Cir. 2004)
(“Where the effect of an error on the outcome of a proceeding is
unquantifiable . . . , we will not
speculate as to what the outcome might have been had the error not
occurred”).
Here, the presiding VA employee provided no statement concerning the issue
of referral for
extraschedular consideration, which was an issue on appeal; no explanation
of why the regional
office denied the veteran’s claims below; no suggestion, in light of the
mention of the veteran’s prior
employment as a hospital administrator, that the veteran provide evidence
of the impact of his
disability on that employment; and no discussion of the severity of the
veteran’s right ear hearing
loss, also at issue. See R. at 246-57. The Board member failed to make any
statement suggesting
26

that the veteran obtain evidence related to an issue apparent from the
record or mentioned at the
hearing, much less perform his specific duties.
The Board member’s errors prevented the veteran from effectively
participating in his own
case. The veteran cannot demonstrate with rigorous specificity the harm he
suffered–the evidence
he certainly would have submitted or the arguments he absolutely would
have raised–to show
prejudice, because the Board member’s failures kept him from knowing how
to appropriatelypursue
his claim. The VA claims adjudication process is nonadversarial. The
veteran is not expected to
arrive at VA prepared to take on the agency. Instead, VA is supposed to
reasonablyassist the veteran
in making the best claim he or she can, including explaining the law. See
38 U.S.C. §§ 5103,
5103A; Robinson v. Peake, 21 Vet.App. 545, 559 (2008) (Schoelen, J.,
dissenting) (“VA’s duty to
assist the claimant is the cornerstone of the nonadversarial claims
adjudication system the Agency
is meant to operate”). Applying strict prejudicial error rules adopted for
the adversarial trial system,
where parties are expected to fend for themselves, harms a veteran when
the assistance aspect of the
VA nonadversarial adjudication system breaks down, as it did here, and
exposes him or her to
potentially devastating consequences for merely trusting VA to perform its
duties. See Shinseki v.
Sanders, 556 U.S. 396, 412 (2009).
The veteran who elects to personally appear before a Board member at a
hearing, often
without legal representation, deserves the opportunity to fully present
his or her best case and
personally persuade the authority that will decide the claim that the
benefits sought are warranted.
Although the hearings arenon-adversarial,theyeffectivelyrepresentthe
veteran’s dayin court,when
the veteran may personally vindicate his or her position before the Board
member. The hearing is
a critical juncture in the VA claims process, but when the Board member
fails to engage with the
veteran and explain the case, as happened here, it becomes a hollow
charade. The Court should not
have overlooked such an error when the veteran plausibly suggested that
relevant evidence could
have been submitted in the absence of the error. Here, the error was clear,
but the effect of whatever
evidence the veteran could marshal is anything but clear.
This veteran served in the Pacific during World War II as a member of the
Marine Corps.
He was on board the carrier U.S.S. Wasp under unremitting enemy kamikaze
attack. He never left
his post. He never stopped engaging the enemy by firing his anti-aircraft
weapon. He is 89 years
27

old. During the entire pendency of this appeal, he has requested that his
claim be expedited,
“because of my age and frailty.” R. at 25.
In the immortal words of the great American war poet: Once to every man
and nation comes
the moment to decide. The veteran decided to serve his nation in combat,
bravely and in a manner
that brought a valor commendation. Nearly 70 years have passed. The
Secretary has violated the
law and his own regulation. Because we are acting as an Article III Court
in reviewing the Secretary,
see Henderson v. Shinseki, 131 S. Ct. 1197, 1201 n. 2 (2011), we possess
all the power to correct that
violation of the law by the application of equity. See U.S. Const. art.
III, § 2, cl. 1. However, this
Court lacks the evidence necessary to effect such a decision, which is why
affirmance by this Court
is premature. Although the majority is concerned with protecting the
public fisc, it does so at the
expense of this veteran and future veterans waiting their turns to speak
with the Board. We must not
lose sight of this 89-year-old’s reality, and of all veterans who continue
to suffer harmful delays as
a result of VA error.
28

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: