Deciphering A CAVC Decision (cont.) Part 2

(This is Part 2 of 3 parts. To access Part 1, go to the CAVC forum listing all cases and click on Part 1)

b. Secretary’s Limited View of Duty To Suggest the Submission of Evidence

Similarly, nothing in the regulation limits the Secretary’s duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing. Given the duty to fully explain the issues, there is no dispute that a hearing officer necessarily must review the record. Having done so, however, he cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available. To do so would ignore the regulatory mandate to advise the claimant to submit evidence that might have been overlooked. See Martin at 150-51 (“In situations in which the meaning of [regulatory] language is not free from doubt, the reviewing court should give effect to the agency’s interpretation so long as it is reasonable, that is, so long as the interpretation sensibly conforms to the purpose and wording of the regulations” (internal quotations and citations omitted)). Moreover, applicable caselaw shows that such inaction is not permissible.

                                             2. Applicable Caselaw

In considering the issue at hand, we look to several decisions of the Court and to a decision of the U.S. Court of Appeals for the Federal Circuit. In Douglas v. Derwinski, 2 Vet.App. 103, 105 (1992), the appellant applied for service connection for skin cancer and testified extensively about treatment he received to remove growths from his skin. Nonetheless, the record did “not contain any medical records pertinent to these assertions.” Id. The Court denied the Secretary’s motion for summary affirmance of the Board decision and concluded that the veteran’s testimony raised the issue of direct service connection for his cancer and that the Board member should have suggested

the submission of evidence “necessary to establish that claim.” Id. at 110. The Secretary filed a motion for reconsideration arguing that the Court’s panel decision was incorrect because the regulation did not apply to the Board. Douglas v. Derwinski,2 Vet.App. 435, 437 (1992) (en banc).

The Court rejected the Secretary’s argument and stated that the Board “was obliged to have fully explained to the veteran that his exposure to the sun during service, his later development of basal-cell carcinoma, and his physician’s statement about his sun-damaged skin raised the issue of direct service connection for his illness,” as well as obligated “to have suggested to him the submission of additional evidence he may have overlooked that would have helped his case.” Id. at 442.

In Proscelle v. Derwinski, 2 Vet.App. 629 (1992), the appellant applied for an increased rating for his maxillary condition.Id. at 631. During the course of his hearing, the appellant asserted that his disability had gotten worse since his last examination. The Court held that the hearing

officer should have suggested the submission of “medical evidence of the then-current level of his service-connected disability.” Id. at 633. The Court also determined that the Board’s statement of reasons or bases was inadequate because it failed to address the appellant’s assertions during his hearing that his maxillary condition had caused his “nervous condition,” and, further, determined that the Board member should have suggested at the hearing that the appellant “submit medical evidence

supporting his claim.” Id.

In Cuevas v. Principi, 3 Vet.App. 542 (1992), a veteran whose service medical records had been destroyed by fire testified at a hearing in 1990 that he had undergone a hearing test in 1985 or 1986 that confirmed his hearing loss. Noting that § 3.103(c)(2) requires the Secretary to fully explain the issues and suggest the submission of overlooked evidence, the Court held that

VA’s statutory duty to assist includes, in cases such as this, having the Hearing Officer tell the veteran that, at a minimum, he should submit a doctor’s report or statement confirming the existence of current hearing loss, especially since the veteran had testified that a hearing test in 1985 or 1986 had confirmed a hearing loss. Id. at 548.

Although VA had sent Mr. Cuevas a notice letter informing him of the need to submit such evidence, the Court held that the hearing officer was nonetheless required to reiterate this concept.

In Costantino v. West, 12 Vet.App. 517 (1999), a veteran’s widow sought to obtain disability and indemnity compensation. The widow argued that the veteran’s service-connected mental condition caused him to refuse medication for illnesses, and that this refusal resulted in his death.

At a hearing, the widow’s representative contended that the veteran’s service-connected mental condition hastened his death. The Board noted that the record did not contain clinical documentation of the veteran’s final hospitalization or a medical opinion demonstrating a nexus to service. TheCourt stated:

[The Board erred] in failing to find error in the hearing officer’s failure to suggest to the appellant that she submit medical evidence regarding any relationship between the veteran’s service-connected condition and his refusal of treatment and any relationship between such refusal and his death, as well as any additional records concerning the veteran’s death. Id. at 520.

In Sizemore v. Principi, 18 Vet.App. 264 (2004), a veteran seeking service connection for post-traumatic stress disorder described at a hearing his experiences in Vietnam. Id. at 274. TheCourt stated that the appellant was not advised adequately by VA as to the types of information that may help to verify his claimed in-service stressors. In particular, at the May 1996 hearing, VA failed to advise the appellant that he could submit corroboration in the form of “buddy statements” as to some of the occurrences that he alleged were in-service stressors.

Id. Although the potential evidence was not yet in existence or obtained in Sizemore, the claimant’s testimony suggested that it might be obtained to corroborate the incident described.

In Prickett v. Nicholson, 20 Vet.App. 370 (2006), a widow of a veteran sought service connection for the cause of her husband’s death. The widow sought to establish that the cause of his death – heart disease – was due to his service-connected psychosis. At the hearing, the decision review officer “repeatedly informed Mrs. Prickett that medical evidence, in particular, a medical opinion demonstrating a nexus between the veteran’s service and the cause of death, was critical to the disposition of her claim and asked her to submit such evidence.” Id. at 373. Mrs. Prickett stated that there was no medical evidence to submit at that time. The Court found that the hearing officer did not violate his duties under § 3.103(c)(2) to fully explain the issues and suggest the submission of overlooked evidence because he informed the widow that (1) the most probative information with regard to determining her claim was “statements from medical types”; (2) she needed to have medical evidence related to nexus; and (3) she should submit any evidence she possessed, particularly medical evidence in support of her claim. Id. at 382.

In addition to the Court’s caselaw, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) also has issued an opinion addressing 38 C.F.R. § 3.103(c)(2). In Thomas v. Nicholson, 423 F.3d 1279 (Fed. Cir. 2005), the veteran was injured after he failed to respond to three orders from a sergeant who instructed him to leave a barracks. The veteran filed a claim for service connection for the injuries and testified at a hearing regarding the claim. His claim was denied, as the Board determined that his injuries were due to alcohol consumption. The Board reconsidered and found his injuries were due to his disobedience of a lawful order. The veteran argued that the hearing officer was required to ask him about the amount of time he had to respond to the sergeant’s orders, which could have shown that his actions were not willful. The Federal Circuit agreed with this Court that Mr. Thomas failed to demonstrate that the hearing officer was required to question the appellant on any particular theory in support of his claim. Specifically, the Federal Circuit held that the question was not necessary because it was not needed “to assure clarity and completeness of the hearing record” as required under § 3.103(c)(2). “Instead, we find the hearing officer fulfilled his duty in evaluating the record and that the evidence in the record adequately established the nature of Thomas’s conduct.” Id. at 1285.

    3. Scope of Duties To Explain Issues Fully and Suggest Submission of    Overlooked Evidence.

As previously stated, the relevant caselaw provides no support for finding a duty that the hearing officer preadjudicate the claim or that the hearing officer’s duty to explain the issues and suggest the submission of evidence is as limited as the Secretary suggests. Rather, the caselaw amply supports a finding that the hearing officer has a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim.3 See, e.g., PrickettCuevas, and Proscelle, all supra. Thus, when 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. For example, when veteran status or current disability is established, there is no reason for a hearing officer to discuss those issues. On the other hand, when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer’s explanation and discussion should be centered on these issues.

The caselaw also amply supports a finding that the hearing officer 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. See, e.g., ProcelleCuevas, and Sizemore, all supra. Because there is no requirement to preadjudicate an issue or weigh the evidence, the hearing officer’s review of the record in preparation for the hearing is one that should focus on the issues that remain outstanding, and whether evidence has been gathered as to those issues. If a claim has been denied for lack of evidence of a current disability, and no medical examination has been provided by the Secretary or medical evidence submitted by the appellant, then this lack of evidence gives rise to the duty of the Board hearing officer to suggest submission of this evidence. The hearing officer therefore must not

only be familiar with the claims file but also be engaged in the hearing process. The hearing officer also must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record. Moreover, VA’s issuance of a notice letter that complies with 38 U.S.C. § 5103(a) has no bearing on the duty to suggest the submission of evidence that may have been overlooked. See Cuevas, supra; see also Section C, infra.

To the extent the above scope of the duties to fully explain the issues and suggest the submission of evidence may not have been stated or held explicitly in prior cases, we so state and hold today.

3 The RO’s rating decision and Statement of the Case, which a hearing officer sho uld have encountered in his review of the record, will likely assist the hearing officer in identifying the outstanding issues.

Here, in the analysis section, the Court analyzes all the contentions put forth by the appellant and counterarguments from the VASEC. It analyzes past rulings and decisions to ascertain how laws in the past were promulgated and what precedence, if any, was forthcoming.

B. Application of Law to the Present Case

                                1. Duty To Fully Explain the Issues


In this case, the Board member began the hearing by stating: “The issues I have for appeal today are four. They are (1) entitlement to service connection for bilateral hearing loss, (2) entitlement to service connection for tinnitus, (3) entitlement to service connection for squamous cell carcinoma, and (4) entitlement to service connection for frostbite of both feet.” R. at 22. Although this statement explained the issues in terms of the scope of the claim for benefits, it did not “explain fully” the outstanding issues material to substantiating the claim, which in this instance were current disability and medical nexus. Even though the hearing officer made inquiries during the hearing regarding whether any doctor had ever related the appellant’s claimed disabilities to service and the basis for asserting a disability (R. at 25-31), at no point did the Board member explain that these issues were material to substantiating the claim – i.e., that they were the reasons the appellant’s claims were denied by the RO. Accordingly, the Board member erred as to the first duty – to fully explain the issues – under § 3.103(c)(2).

                      2. Duty To Suggest the Submission of Evidence Possibly Overlooked


As to the duty to suggest evidence that may have been overlooked, responses were elicited from the appellant as to frostbite, hearing loss, and tinnitus, as well as his basis for believing these claimed disabilities were related to service. At the time of the hearing, the record already contained VA medical examination reports stating that the appellant currently did not have frostbite, and that, although he had hearing loss and tinnitus, these disabilities were not caused by his service. Moreover, the hearing discussion did not reveal any evidence that might be available that had not been submitted. Under these circumstances, nothing gave rise to the possibility that evidence had been overlooked with regard to the appellant’s claim for benefits for frostbite, hearing loss, and tinnitus.

With regard to squamous cell carcinoma, the appellant’s representative at the hearing elicited information from the appellant about this claimed disability, and the appellant did not reveal any unsubmitted evidence that might be available. In contrast to the above circumstances, however, at the time of the hearing, there was no VA or other examination report addressing nexus, although the record on appeal contained VA treatment records for skin cancer and Bowen’s Disease, a type of squamous cell carcinoma.3 Under these circumstances, the lack of medical evidence in the record addressing a nexus between the appellant’s diagnosed squamous cell carcinoma and an in-service event or injury gave rise to the possibility that evidence had been overlooked, and the Board hearing officer should have suggested that the appellant secure and submit this evidence if he could; the hearing officer’s failure to do so was error.4See SizemoreCostantino, and Cuevas, all supra.

4  The Board stated that there was no evidence of a current diagnosisfor squamous cell carcinoma. R. at 12. However, a careful review of the appellant’s VA medical records indicates that on October 16, 2003, the appellant underwent a biopsy of an “8mm erythematous papule mid upper back/neck area.” R. at 302-03. A November 25, 2003, medical record states: “[P]athology came back as [B]owen’s with incomplete margins.” R. at 296; see also R. at 287. Bowen’s Disease is a type of squamous cell carcinoma. See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 536 (31sted. 2007).

5 Our dissenting colleague’s view that reviewing the record to identify the issues on appeal and assess whether evidence may have been overlooked equates to an evaluation of the evidence, post at 1, fails to recognize that the issues on appeal are readily identifiable in the RO’s decision and the statement of the case, and further fails to recognize that neither the identification of the issues nor the observation that there is no evidence on one of those issues (thus indicating that its submission may have been overlooked) requires any weighing or evaluation of the evidence.

End of Part 2. Proceed to Part three for final conclusion and synopsis

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