Bryant: The Board's Duty to fully explain the issues and suggest evidence

Bryant: The BVA’s Duty?

The case of Walter A. Bryant v. Eric K. Shinkseki, Opinion Number 08-4080, decided July 1, 2010, affirmed and reversed in part a denial of service-connection for various conditions.

The Court’s decision principally used the opportunity to further discuss the Board member’s duty to fully explain the issues as well as the duty to suggest the submission of evidence possibly overlooked. Here, the Board member began the hearing by noting four issues for appeal and identifying them. However, the Court found “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 substantiate the claim, which in this instance were current disability and medical nexus.” Id. at *10. The Court continued, “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, at no point did the Board member explain that these issues were material to substantiate 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”. Id. at *10.

The duty to suggest the submission of evidence possibly overlooked was more complicated. The Court looked at the allegations of frostbite, hearing loss and tinnitus first and found that a VA medical examination stated the appellant did not have a diagnosis for these conditions. The Court then found, “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.” Id. at *11. However, regarding the claim for service connection for squamous cell carcinoma, the Court noted a diagnosis for a skin cancer that is a form of a squamous cell carcinoma and noted the lack of medical evidence addressing the nexus between the skin cancer 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”. Id. at *11.

However, what the Court gives it can also take away in the form of its notice requirement. Remember the Court found a breach of the Board member’s duty to fully explain the issues and a duty to suggest the submission of evidence possibly overlooked with regard to the squamous cell carcinoma. First, the Court considered prejudice to the appellant. The Secretary had argued that section 5103(a) notice letters eliminated any possibility for prejudice but the Court refused this argument on the basis that these were two different notice requirements with different intents. However, when specifically considering frostbite, hearing loss, and tinnitus, the Court found that “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 the 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.” Id. at *12-*13. Regarding the squamous cell carcinoma, the Court found prejudice because the failure to lay out the material issues combined with a failure to suggest medical evidecnce as to service-connection, “evidence that was lacking at the time of the hearing, and that remained lacking through final Board decision.” Id. at *13.

A separate opinion by Judge Lance make two suggestions to increase the effectiveness of the majority opinion. First, the Board should be required to look at the most recent Regional Office decision (i.e., the most recent Supplemental Statement of the Case) and clearly explain what elements of the claim were found deficient and what type of evidence would help the appellant prevail. Second, and perhaps most important, the dissent expressed concern the prejudice requirement essentially gutted the duty to fully explain the issues in many cases. The dissent believes the prejudice standard enacted by the Court (whether the error affected the clarity and completeness of the hearing record) destroys the opportunity for the appellant to have an opportunity to submit favorable evidence by failing to ensure the veteran understands what issues require the submission of favorable evidence.

The Case is important for clarifying the Board member’s duties and while it does not create any additionally duty, it certainly provides appellant’s before the Court of Appeals with another strong line of argument. However, a determination of a breach of these duties and possible requires a case by case that will likely result in more issues being argued before the Court.

Decision by Judge Kasold and Davis with a separate opinion by Judge Lance.