This is Part 3 of a 3 part analysis of a Court decision. To read the whole decision, please access the CAVC Forum and click on Part 1 followed by Part 2.
The Court must next consider whether the appellant was prejudiced by the Board’s errors. See 38 U.S.C. § 7261(b)(2);Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009). In his brief, the Secretary argues that the notice letters provided to the appellant under section 5103(a) eliminate any potential prejudice that might have been caused by the Board member’s failure to explain the issues because they sufficiently explained the need for the appellant to submit medical evidence. Secretary’sBr. at 13-14. However, section 5103(a) serves a different purpose in the statutory scheme than § 3.103(c)(2). See Wilson, supra. Further, the Court already has held that a hearing officer has the duty to suggest the submission of evidence even when the claimant has been provided a letter notifying him of the need to submit such evidence. See Cuevas, supra. Not only is this precedential opinion binding, see Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) (panel decisions constitute “binding precedent” unless overturned by en banc opinion of this Court or decision of the Federal Circuit or U.S. Supreme Court), to hold that the failure of a hearing officer to suggest the submission of evidence that might have been overlooked is rendered nonprejudicial simply because the claimant had been provided preadjudicatory notice of what was needed to substantiate the claim essentially would eviscerate the duty imposed by the Secretary in § 3.103(c)(2). There is no basis for rendering such a holding. Rather, the assessment of prejudice generally is case specific, demonstrated by the appellant and based on the record. See Shinseki, supra (appellant generally bears burden of demonstrating prejudicial error on appeal); Marciniak v. Brown, 10 Vet.App. 198, 201 (1997) (remand unnecessary “[i]n the absence of demonstrated prejudice”); see also Mlechick v. Mansfield, 503 F.3d 1340, 1346 (Fed. Cir. 2007) (Court must review the record to take due account of the rule of prejudicial error).
1. Frostbite, Hearing Loss, and Tinnitus
With regard to the appellant’s claim for benefits for frostbite, hearing loss, and tinnitus, although the Board hearing officer did not explicitly lay out the material issues of medical nexus and current disability, the record reflects that they were developed by the Secretary – to include medical examination reports on each of these disabilities and any nexus to service – and there was no indication that the represented appellant had any additional information to submit. 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. See Thomas and Marcinak, both supra; see also Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996) (service connection generally requires, inter alia, medical nexus).
Our dissenting colleague’s reliance on Moore v. Shinseki, 555 F.3d 1369, 1374-75 (Fed. Cir. 2009) for finding prejudice is misplaced. Moore confirmed and clarified the statutory duty of the Secretary to secure potentially relevant evidence when reasonably identified by a claimant, see 38 U.S.C. § 5103A, and is inapposite to the regulatory duties imposed on a hearing officer under § 3.103(c)(2); there is no suggestion that Mr. Bryant identified relevant evidence that was not obtained by the Secretary. Our colleague’s focus on the fact that a purpose of the hearing is to permit a claimant to submit evidence also is misplaced; there is no suggestion that Mr. Bryant was denied an opportunity to submit evidence. Rather, the prejudice identified by our dissenting colleague arises from a duty not imposed by regulation or statute; i.e., a duty to weigh conflicting evidence or otherwise preadjudicate the claim and advise the claimant of those areas where the evidence weighs against his claim. Congress or the Secretary might create such a duty, but as noted in our discussion above, they have not yet done so.Cf. Locklear, supra.
2. Squamous Cell Carcinoma
In contrast to the above, the failure to explicitly lay out the material issues with regard to squamous cell carcinoma was combined with a failure to suggest to the appellant that he should secure and submit medical evidence on the key issue of nexus to service – evidence that was lacking at the time of the hearing, and that remained lacking through final Board decision. Had the appellant been notified that evidence may have been overlooked on this issue, he could have requested such
an examination from the Secretary or secured one on his own. Although it is not known whether the appellant can secure a favorable medical report, his prejudice arises from the failure of the hearing officer to assure the “clarity and completeness of the hearing record,” Thomas, 423 F.3d at1285 , and the lost additional opportunity to try and submit such evidence before his claim finally was adjudicated, which is one of the prima facie purposes of the regulatory requirement that the Board hearing officer suggest the submission of material evidence that the appellant may have overlooked. 38 C.F.R. § 3.103(c)(2);see also Parker v. Brown, 9 Vet.App. 476, 481 (1996) (stating that “‘[p]rejudice … means injury to an interest that the statute, regulation, or rule in question was designed to protect'” (quoting Intercargo Ins. Co. v. United States, 83 F.3d 391, 396 (Fed. Cir. 1996))); cf. Shinseki, 129 S. Ct. at 1708 (indicating as a factor for determining notice-error prejudice, the identification of evidence that might have been obtained or sought if proper notification had been given); Wagner v. United States, 365 F.3d 1358, 1365 (Fed. Cir. 2004) (holding that “[w]here 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”).
So, the Court finds all the things wrong with the BVA decision and excoriates the Judge for his ineptness. As Judges never write in DickandJanespeak, this two or three paragraph screed has been turned into a Guttenberg Bible and several old growth trees had to be sacrificed for their long winded diatribe.
On consideration of the foregoing, that part of the Board’s October 6, 2008, decision denying benefits for frostbite, hearing loss, and tinnitus is AFFIRMED, and that part denying benefits for squamous cell carcinoma is VACATED and the matter REMANDED for further adjudication consistent with this opinion.
The opinion of the Court is per curiam. LANCE, Judge, filed an opinion concurring in part and dissenting in part.
Finally, the men say Taa-Daa! They did at the beginning, but it took so long to get here they have to remind you what the outcome was again.
LANCE, Judge, concurring in part and dissenting in part: I believe that the majority does an excellent job in many respects in clarifying our previously disjointed caselaw on 38 C.F.R. § 3.103(c)(2) (2009). However, I think the opinion suffers from two serious problems.
First, I believe that the majority fails to sufficiently explain the distinction between its holding that the regulation does not require a preadjuication of the claim or weighing of the evidence and its requirement that the hearing officer must review the entire record to fully explain the issues on appeal. Reviewing the record to determine what issues it raises necessarily requires some evaluation of the evidence and some judgment about which issues are reasonably in dispute.
Determining that there is no favorable evidence in the record will often require making a decision about the nature or meaning of ambiguous documents or reports in the claims file. Hence, it is not
clear to me how these two conclusions coexist. More importantly, it is not clear how the Court provide a full explanation of the issues.
In my view, a better standard would be one that is similar to the one used in Kent v. Nicholson, 20 Vet.App. 1 (2006), to avoid requiring the preadjudication of claims. In Kent, the Court concluded that proper 38 U.S.C. § 5103(a) notice as to an attempt to reopen a previously denied claim requires the Secretary to look at the basis of the prior denial and tailor the notice to any findings of fact that would affect the type of evidence that the claimant must submit. 20 Vet.App.at 10. By analogy, 38 C.F.R. § 3.103(c)(2) should require the Board to look at the most recent RO decision—which may be the most recent Supplemental Statement of the Case considering additional evidence—and clearly explain to the appellant what element or elements of the claim were found deficient by that decision and what types of evidence would help the appellant prevail as to those issues. If the RO addressed multiple theories as to a claim, the Board would have to explain the issues related to each theory.
I believe that such a standard would be vastly easier for the Board to apply and for the Court to review. While there are certainly cases where the Board may ultimately spot an issue that was completely overlooked by the RO, the Court has recently held that the Secretary’s regulations prevent the Board from considering new legal theories in the first instance.Hickson v. Shinseki, 23 Vet.App. 394, 400-03 (2010). Thus, even if the Board later determines that the RO decision overlooked an issue, the claimant must receive notice of the issue and the opportunity to have it remanded to the RO. Id.Accordingly, even if a bright-line, Kent-style rule does not perfectly capture every issue,claimants are still protected from being blindsided by a Board decision that raises a new issue.
My second—and more serious—concern is that the majority’s prejudicial error analysis effectively guts the requirement to fully explain the issues in many cases. In this case, the opinion concludes that the 38 C.F.R. § 3.103(c)(2) error was harmless because the negative medical evidence of record proves that the appellant was not prejudiced. To do so, the opinion mistakenly frames the prejudicial error question as whether the error affected “the ‘clarity and completeness of the hearing
record.'” Ante at 12 (quoting 38 C.F.R. § 3.103(c)(2)). However, I believe that is the standard that should be used for the second prong of the regulation: the duty to suggest the submission of overlooked evidence. As to the first prong, the duty to fully explain the issues, the first sentence of 38 C.F.R. § 3.103(c)(2) explicitly states that the 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 before there is a reasonable possibility of prevailing on the claim. Where there is substantial negative evidence in the record on an issue, it is even more
important that the Board member explain the need for favorable evidence in order for the claimant to have a realistic opportunity to prevail on the claim. See Moore v. Shinseki, 555 F.3d 1369, 1374-75 (Fed. Cir. 2009) (concluding that failure to obtain potentially favorable, circumstantial evidence was prejudicial even though the record contained copious direct evidence against the claim).
In this regard, the majority opinion expresses confusion about my positions and presents a flawed rebuttal by unnecessarily mixing my two concerns together. First, I do not believe that I can be any clearer that preadjudication of claims by the Board is not required. Instead, I believe that the scope of the duty to fully inform should be defined by the findings of the actual adjudication done at the RO level prior to the Board hearing. Second, the opportunity to submit evidence is more than just a window of time in which new evidence will be received. When the issue in dispute requires expert evidence because it is beyond the common knowledge of lay persons, there is little reason to believe that such favorable evidence will actually be submitted unless the appellant understands the types of evidence needed to have a chance of prevailing. Indeed, my essential point is that the majority fails to acknowledge the possibility that the reason Mr. Bryant never identified any additional medical evidence in support of his claim was because he did not understand that he needed to do so. The fact that he did not submit such evidence earlier tends to suggest that is the case. In my view, there does not appear to be any explanation for creating the duty “to explain fully the issues” except to neutralize the inference that the failure to submit evidence was the product of ignorance. Under the totality of the circumstances in this case, it appears that Mr. Bryant’s failure to submit favorable medical evidence may be the product of ignorance and, therefore, he was potentially prejudiced by the violation of the duty directly targeted at avoiding such a situation.
I suppose there is some threshold where the negative evidence of record is so overwhelming or incontrovertible that denying a claimant the opportunity to rebut it would be harmless. However, in summary, I believe that the regulation exists to help claimants rebut negative evidence and, therefore, the existence of some negative evidence reinforces, rather than cures, the prejudice of not explaining the issue. Accordingly, I would remand all of the appellant’s claims based upon the Court’s conclusion that the Board erred so that the appellant would have a meaningful opportunity to present rebuttal evidence on the key issues in his claims.
So, in a more perfect world, we would have received this from on High. With all due respect to his Honor, this is basically a case of “Could of, would of, and should of.” It does nothing to change the decision. It supplants the decision of the panel with a discourse on how he would have decided it based on what he perceives as the truth. The decision would stand without this rejoinder, but then some law clerk on our nickel was paid to type it to make his Honor look more illustrious. Kind of like the Emperor’s new clothes. In the end its Lions 5, Christians 0. Mr. Bryant loses on all counts and gets a do over on the squamous cell carcinoma. I wonder how his do over will turn out? Any bets?