Arneson: Do all Board panel members have to attend a personal hearing

Arneson: Do all Board panel members have to attend a personal hearing

Robert H.Arneson v. Eric K. Shinseki, Opinion Number 09-953, decided April 20, 2011 concerns a Board panel decision where the veteran had a personal hearing at separate times before 2 of the 3 panel members but never had the opportunity for a hearing before the 3^rd panel member.

The veteran had a hearing before one board member who remanded the claim for a medical opinion and then the RO granted partial service connection. A second personal hearing was held before a second board member. Several months later the Board assigned a panel to decide the appeal and two months later the panel denied for the additional service connected disabilities. The Board found the veteran and his sister credible but noted a 30 year lapse between service and the first treatment for the disability and gave greater weight to the medical opinions denying service connection.

The veteran argued he did not have the opportunity of a personal hearing before all Board members who decided the appeal.

The Court agreed with the veteran and found “If the claimant’s appeal is assigned to a Board panel in a piecemeal fashion, that claimant must still be afforded the opportunity for a hearing before every member of the panel that will ultimately decide his case. This is not to say that the claimant must be afforded a hearing before every panel member at the same time; only that he be afforded the opportunity to be heard—be it in-person, telephonically, or via video conference—be every panel member whil will decide his case.” Id. at *10.

The decision is important because it ensures a veteran has the opportunity to be heard before every Board decision maker and has application to any number of cases that were decided before this opinion.

Decided by Chief Judge Kasold and Judges Lance and Schoelen.