Oftimes a Vet will set out to defend himself before the abortion we refer to as the Veteran friendly VA adjudicatory system. He/she soon discovers the “do as I say and not as I do” nature of the system with codicils inserted that relieve the VA of certain legal requirements while imposing them on the Vet. It certainly isn’t perfect, but it’s what we’re saddled with. Rather than complain, our suggestion is to make lemonade with the lemons. Afterwards, go out and find the guy who is making Vodka out of potatoes. Towards that end, we present a short “how to” course here to help the novitiate navigate the corridors of Appellate Justice at the CAVC level. You will find a similar road map for BVA decisions in that forum. 

     One thing that is paramount is that you, the Veteran, file your Notice of Appeal (NOA) within 120 days of a denial by the BVA. You do have the option of asking for a reconsideration of the BVA decision prior to filing the NOA, but this scenario is not going to be dealt with here. This will deal only with the CAVC to avoid confusion between the two legal bodies. 

     Once you file your notice of intent to contest the adverse ruling, you will file a brief with the Court (they are absolutely anal and love it when you capitalize the word Court) laying out the terms of your disagreement based on VA law. You obviously can’t say they “dissed” you and didn’t “give you no respect”. Those aren’t legal concepts that qualify as law. No, what you will need is actual violations of VA law such as a failure to address evidence that was favorable to you or a failure to explain their denial in the “Reasons and Bases” portion of their decision. BVA judges are required to examine all the evidence both pro and con in you case and weigh that at the end. In the event of a “tie” or equipoise, the tie goes to the runner. However, sometimes the VARO “forgets” to include important documents pertaining to your appeal or denies you a medical C&P exam when one is clearly warranted. If the BVA pulls a stunt like this and you don’t ask for reconsideration, your last recourse is to petition the CAVC judge(s) to right the wrong. As they are very exalted Grand Poobah types, and the sun rises over their shoulders, they feel that BVA judges are generally uncouth and love to find fault with their legal reasoning. Hell, that’s what they do for a living. Fortunately for you, the Vet, this works in your favor.

     There are three forms of appeal at the CAVC level. Your case will normally be assigned to a single judge for a ruling. This sets no precedence, but affords you a favorable platform for your appeal. Should the judge deny your claim and affirm the BVA decision, you may petition for a panel decision based on some facet of VA law that needs clarifying and a precedent setting decision. Or, in the alternative, if the decision is so sensitive that it will change VA law or be appealed to the Federal Circuit Court, your request for an en banc (full Court of 7) ruling may be entertained. Full court rulings are few and far between and panel decisions are generally reserved for case law that is destined to change existing law and needs to be decided in a precedent setting environment.  The Court has several different options before it based on the evidence presented. They may choose to leave the adverse BVA decision in place (affirmation),  set the decision aside and remand it with instructions on why it is defective and have the BVA or RO readjudicate it again (remand), or reverse the finding in favor of the Vet requiring the RO to sharpen it’s collective pencil and figure out how much %/$ they now owe you after holding up justice for 10 years. Additionally, you will find that some decisions are an amalgam of the above- i.e. Item A is affirmed, Item B is remanded and Item C is reversed and returned for a decision based on the Court’s findings. 

     You as the Vet, regardless of whether you represent yourself pro se or have a lawyer representing you, must lay out what you object to specifically, not generally. Each and every contention you make contesting your appeal must be laid out in advance. After you get to Court, you can’t change your legal arguments in mid stream based on what the VA Secretary and his minions pull out of their hat. You have to be prescient and prepared for these types of legal maneuvers. I suggest a broad brush or a 12 ga. that hits everything and then let the VASEC squirm as he tries to wiggle out of a tight spot addressing each of your contentions. It’s often better to raise specious arguments that have no rational legal basis than not raise them at all. Best of all, the Court affords great deference to those of us who choose to go it alone pro se. 

     We will pick a random panel decision now and disect it into its component parts with interjections in bold type so as not to confuse the reader into thinking our musings are part of the ruling. After searching, we found a recent decision from this year’s calendar that includes two of the three motions discussed above.  Ladies and Gentlemen, allow me to introduce Mr. Walter E. Bryant, a Veteran of the war to end all wars. As he is quite far along in years, the Court has advanced his claim on the calendar to give him a ruling before he ends up on the wrong side of the grass.

 

 

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

 

       NO. 08-4080

WALTER A. BRYANT, APPELLANT,

v

.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans’ Appeals

 

 

 

(Argued March 10, 2010                                        Decided July 1, 2010)

Kenneth M. Carpenter, of Topeka, Kansas, with whom Peter J. Meadows, of Ft. Lauderdale, Florida, was on the brief for the appellant.

These (above) are the attorneys for Mr. Bryant (the appellant)

Penny C. Kahn, with whom Will A. Gunn, General Counsel; R. Randall Campbell, Assistant General Counsel; Edward V. Cassidy, Jr., Deputy Assistant General Counsel, were on the brief, all of Washington, D.C., for the appellee.

These are the hired law dogs for VASEC (Eric Shinseki, our exalted leader)

Before KASOLD, LANCE, and DAVIS, Judges.

(3 judges= a panel decision = precedence setting. However, there is nothing earthshaking about this decision.)

The opinion of the Court is per curiam.

per curiam (adjective) is Latin for “by the court,” defining a decision of an appeals court as a whole in which no judge is identified as the specific author.

LANCE, Judge, filed an opinion concurring in part and dissenting in part.

Any judge has a right to put in his two cents worth and wave his own flag as does Judge Lance at the end of this decision. Why, I have no idea. It won’t change the outcome. It’s just a convenient way to use up paper.

PER CURIAM: The appellant, Walter A. Bryant, through counsel, appeals an October 6, 2008, Board of Veterans’ Appeals (Board) decision denying his claims for service connection for bilateral hearing loss, tinnitus, squamous cell carcinoma, and frostbite residuals of both feet. Record R.) at 3-14. On December 9, 2009, the Court granted the appellant’s motion for expedited consideration of this appeal. This Court has jurisdiction to review the Board’s decision pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons discussed below, the Board’s October 6, 2008, decision will be affirmed in part, and vacated in part and the matters remanded for further proceedings consistent with this decision.

This is the synopsis in a nutshell. Like the BVA decisions, the Court likes to tell you up front what is going to transpire. I bet their friends hate them if they ask a judge whether he’s seen a particular movie (“Yeah and you’re not going to believe the ending. The guy shoots his girlfriend and then…. etc.)

 

                                       I. FACTUAL BACKGROUND

 

 

The appellant served in the U.S. Army from May 1943 to April 1946, and from September 1950 to October 1951. R. at 387, 394.

In February 2005, he filed a formal application for compensation benefits. R. at 357-68. During the development of his claim, the Secretary sent the appellant multiple letters explaining what evidence might be required to prove his claims. R. at 146, 250, 334-47. In June 2005, the Waco, Texas, regional office (RO) issued a rating decision denying the appellant’s claims to entitlement for bilateral hearing loss, for tinnitus, for squamous cell carcinoma, and for frostbite residuals in both feet. R. at 243-49. As to the appellant’s claims for bilateral hearing loss, for tinnitus, and for frostbite, the RO concluded that the record failed to show medical diagnoses for these conditions. R. at 246-47. As for the claim for service connection for squamous cell carcinoma, the RO explained the medical evidence showed “several areas of treatment” for this condition, but did not show this condition occurred in or was caused by service. R. at 244.

The appellant appealed this decision and a hearing was held before a Board member on August 28, 2008. R. at 21-33. In the October 6, 2008, decision on appeal, the Board, relying on VA medical opinions, issued a decision denying the appellant’s claim for benefits for frostbite because the appellant did not currently have this disability, and denying his claim for benefits for hearing loss and tinnitus because these disabilities were not related to service. The Board also denied benefits for squamous cell carcinoma because there was no evidence the appellant had this disability, although there was no VA (or other) medical opinion to this effect. R. at 4.

The central question to be resolved in this case is the extent of the Board hearing officer’s duty under 38 C.F.R. § 3.103(c)(2)(2009), see also 38 C.F.R. § 20.1304 (2009) (procedures to obtain a hearing at the Board), to explain fully the issues and suggest the submission of evidence that the claimant may have overlooked. 1 The hearing officer’s duties are established in 38 C.F.R. 1 § 3.103(c)(2) and a hearing may be requested duringthe initial adjudication of the claim or while the claim is on administrative appeal. See also 38 C.F.R. § 20.1304 (2009)(procedures for obtaining a hearing at the Board). Although the duties at either hearing are established by § 3.103(c)(2), this opinion generally addresses them in the context of a Board hearing.

     As you can see, this area sums up what has transpired to date, the appeals history and how it arrived at the CAVC’s corral. 

                                                   The Parties’ Arguments

 

The appellant’s main argument is that the Board hearing officer failed to explain to him that additional medical evidence was needed to support his claims. He asserts that the hearing officer did not fulfill the responsibilities ascribed to him under 38 C.F.R. § 3.103(c)(2) (2009). The appellant argues that it was error for the Board hearing officer to fail to suggest that he submit medical evidence, to include diagnoses for his claimed disorders as well as the etiology of such conditions. At argument, appellant’s counsel elaborated that he was arguing that the duty to fully discuss the issues and suggest the submission of overlooked evidence was “broad and totally encompassing” (Oral Argument at 11:35-43), so as to require the Board hearing officer to review the entire claims file prior to a hearing and make a preliminary decision so that the Board hearing officer can then explain at the hearing any deficiencies in the evidence that the appellant would need to overcome to receive a favorable decision (Oral Argument at 12:18-43).

The Secretary argues in his brief to the Court that the regulation applies to overlooked evidence, and “in light of the notification letters sent to Appellant . . . there simply was no overlooked evidence.” Secretary’s Brief (Br.) at 16 (emphasis in original). At oral argument, the Secretary detailed his argument, stating that “the Court has found that the hearing officer’s section 3.103(c)(2) obligation arises in a narrow set of circumstances in which the hearing officer, having been placed on notice of the existence of evidence that would help prove a claim, failed to suggest the submission of such evidence.” Oral Argument at 28:14-31.

The Secretary also argued that even if the hearing officer had a duty to inform the appellant that medical evidence was needed to substantiate his claim, failure to meet this duty resulted in no prejudice because the appellant had been so informed through the preadjudciatory notice he was provided pursuant to 38 U.S.C. § 5103(a).

As you can see, here Mr. Bryant and Mr. Shinseki cross swords and lay out the meat of their arguments. As usual, Mr. VASEC will say “yeah, We stepped on our necktie but it didn’t hurt Mr. Bryant. But if Mr. Bryant were to step on HIS necktie and do a face plant, Mr. Shinseki would be all over his ass like white on rice.

                                                      II. ANALYSIS

 

A. Hearing Officer’s Duties Under 38 C.F.R. §3.103(c)(2)(2009)

As the Court has observed, “a functioning system of laws must give primacy to the plain language of authorities.” Tropf v. Nicholson, 20 Vet.App. 317, 322 n.1 (2006). The language of the regulation is the necessary starting point because “[w]ithout standard word meanings and rules of construction, neither Congress nor the Secretary can know how to write authorities in a way that conveys their intent and no practitioner or—more importantly—veteran can rely on a statute or regulation to mean what it appears to say.” Id.; see also Hickson v. Shinseki, 23 Vet.App. 394, 401 (2010) (concluding that Secretary’s interpretation of the regulation at issue was in conflict with the plain language used).

Section 3.103(c)(2) imposes, inter alia, two distinct duties on the hearing officer at issue in this case: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. The regulation at issue reads:

The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may haveoverlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.

38 C.F.R. § 3.103(c)(2) (emphasis added).

Although the hearing officer’s duties to “explain fully the issues and suggest the submission of evidence which the claimant may have overlooked” are not further detailed in the regulation,2 the appellant’s argument that these duties necessarily involve the preadjudication of his claim is not supported by the language of the regulation, or its prior interpretation and application. Similarly, the Secretary’s view that his duties are limited to suggesting the submission of only that evidence that is already in existence, and only when the possible existence of such evidence is triggered at the hearing, has no basis in the plain language of the regulation, or its prior interpretation and application.

2 Although 38 U.S.C. § 7107(d) provides the right to a hearing, 2 it does not prescribe the duties imposed on the hearing officer discussed herein, which are imposed solely by regulation. No argument has been made that the duties imposed by the Secretary exceed his authority or are otherwise inconsistent with statute, and we perceive no such  conflict.  See Auer v. Robbins, 519 U.S. 452, 461 (1997) (“[The Secretary] is free to write the regulations as broadly as he wishes, subject only to the limits imposed by the statute.”).

                                                     1. Plain Language

 

a. Appellant’s Call for Preadjudication

Nothing in § 3.103(c)(2) supports the appellant’s contention that the regulation requires a hearing officer to preadjudicate or otherwise weigh conflicting evidence prior to or at the hearing. See Tropf, supra. Moreover, such preadjudication is not required to explain to the claimant that – for a disability compensation claim – the issues are status as a veteran, injury or disease in service, current disability, and nexus between the current disability and the injury or disease in service. See Caluza v. Brown, 7 Vet.App. 498, 506 (1995) aff’d per curiam, 78 F.3d 604 (Fed. Cir.1996) (table) (proving service connection requires (1) medical evidence of a current disability, (2) medical evidence or, in certain circumstances, lay testimony of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and th in-service disease or injury).

Preadjudication or the weighing of conflicting evidence also is not required for a hearing officer to determine that evidence is not in the record with regard to a particular, material element of a claim. And, preadjudication or weighing evidence is not required in order to advise a claimant of the need to submit evidence on a material issue for which there is no evidence in the record. Moreover, the evidence does not have to be weighed or the claim adjudicated “to assure clarity and completeness of the hearing record,” which is one of the implicit duties imposed by § 3.103(c)(2). See Thomas v. Nicholson,423 F.3d 1279 (Fed. Cir. 2005) (discussed further, infra at 9); see also 38 U.S.C. §.7107(a) and (f)(1)-(2) (permitting “the screening of cases for purposes of determining the adequacy of the record for decisional purposes; or the development, or attempted development, of a record found to be inadequate for decisional purposes” even when a claim is not up for

consideration in the regular docket order). Accordingly, we find no basis for writing into the Secretary’s regulation a requirement that a hearing officer weigh the evidence in the record or otherwise preadjudicate the claim prior to or at the hearing. See Martin v. Occupational Safety and Health Review Comm’n, 499 U.S. 144, 150 (1991) (“it is well established that an agency’s interpretation of its own regulation is entitled to substantial deference”).

(Part one of three parts)