Hearing Official Missed the Boat

Both VA employees who conduct hearings at the VA’s regional offices and the Board of Veterans’ Appeals (Board) are bound by regulation to perform certain nondiscretionary duties.

For example, 38 C.F.R. § 3.103(c)(2) provides, in pertinent part: “It is the responsibility of the employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimants position.”

Recently, in Procopio v. Shinseki, the Court of Appeals for Veterans Claims (the Court) held the Board failed to follow 38 C.F.R. § 3.103(c)(2). See Procopio v. Shinseki, 26 Vet. App. 76 (2012).

The veteran in Procopio provided a statement that he handled herbicides or Agent Orange and drank water that was pulled from the Gulf of Tonkin and purified. He also provided a treatment note from his physician Dr. Grado, which stated the veteran’s conditions (diabetes mellitus and prostate cancer) were associated with Agent Orange exposure on the flight deck of the USS Intrepid and water evaporators on that ship. The veteran subsequently provided a treatment note from May 2010 and an October 2010 letter from Dr. Grado – evidence the VA called “conditional.” He had also provided a study done by the Australian Department of Veterans’ Affairs, which VA called “too general in nature.”

In reaching its holding, the Court cited to Bryant v. Shinseki, in which the Court had held § 3.103(c)(2) imposes two specific duties: 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.” Bryant v. Shinseki, 23 Vet. App. 492, 496 (2010).

The Court concluded the VA failed to meet its obligations set forth in § 3.103(c)(2) at the Board video conference hearing. It was known by VA that the veteran’s claims were denied because of lack of evidence of in-service exposure to herbicides and a nexus between any such exposure and his disabilities.

Under § 3.103(c)(2), the Board member at the video conference hearing was obligated to explain those issues and suggest the submission of evidence the veteran might have overlooked; however, the Board member only administered an oath and told the veteran he had 60 days to submit additional evidence, which did not fulfill the obligation under § 3.103(c)(2).