Wednesday, November 28, 2012

Board Hearing Officer: Must Explain Issues, Suggest Evidence

In Procopio v. Shinseki, docket no. 11-1253 (Oct. 16, 2012, Vet.App.), the U.S. Court of Appeals for Veterans Claims (CAVC) held that a Board member conducting a hearing has a duty to explain the issues and suggest the submission of evidence relevant to those issues, just as a hearing officer would be required to do at a regional office hearing.

The veteran in this case asserted that his prostate cancer and diabetes were related to Agent Orange exposure, even though the ship on which he was stationed was not on VA’s list of ships whose crew members are presumed to have been exposed to Agent Orange. To support his claim, he submitted medical treatise evidence and a statement from his private physician. The regional office denied the claim because there was no evidence of direct exposure to Agent Orange. The veteran testified at a video conference before a member of the Board of Veterans’ Appeals, who affirmed the RO’s decision and denied the claim.

The Court found that the Board failed to ensure that the hearing officer suggested evidence to submit to substantiate the veteran’s claim. The Court noted that, at the Board hearing, the veteran had requested that the record be held open an additional 60 days to allow him to submit another medical opinion. The Court stated that the Board member should have explained to the veteran that a nexus opinion alone would not substantiate the claim – because that would still not establish that he was directly exposed to Agent Orange in service. The Court held that the Board member did not comply with his duty to inform the veteran of “the elements of his claim that still needed to be proven and to suggest the submission of evidence . . . that he might have overlooked.” Procopio at *11.

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