Procopio: Duties of a Hearing Officer

Alfred Procopio Jr. v. Eric K. Shinseki, Opinion Number 11-1253, decided October 16, 2012 examines the duties of a board member during the Board hearing, specifically concerning the duty to explain the chief factual issues and suggest what was needed to substantiate a claim.

The veteran sought benefits for prostate cancer and diabetes mellitus type II secondary to herbicide exposure.  At the video board hearing, the veteran submitted a treatment note from a physician stating linked his medical issues to herbicide exposure.  The board member did not ask any questions or make any statements to the veterans regarding what was needed for his claim.  Specifically, the issue was whether the veteran was exposed to herbicides while aboard the USS Intrepid off the coast of Vietnam.

The Court noted that 38 CFR Section 3.103(c)(2) imposes two duties on a hearing officer: “(1) a duty to fully explain the issues still outstanding that are relevant and material to substantiating the claim, and (2) a duty to 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.”  Id. at *5.

The Court determined the Board member was obligated to explain the lack of competent evidence and suggest the submission of evidence relevant to those issues, and that the Board member simply failed to fulfill his duty.

The VA tried to argue the Board member’s failure was harmless because the veteran had actual knowledge of the evidence necessary to support his claim.  Instead, the Court found the veteran thought the nexus statement from his physician was enough and that he had overlooked the need for evidence of herbicide exposure.  The VA also argued a pre-hearing statement of the case cures a Board member’s failures.  The Court found this argument unavailing.

This case brings a light to an important tool for veterans.  Anytime a veteran is in a hearing, they should ask what specifically is need to substantiate their claim.  Then, when the veteran provides that evidence it will be difficult for the VA to deny and attempt to move the goalpost.  Importantly this duty is owed both by a Board member and by RO hearing officers.

Decided by C.J. Kasold and Judges Hagel and Schoelen.