Robert H. Arneson v. Eric K. Shinseki

24 Vet. App. 379, 2011 U.S. Vet. App. LEXIS 833, 2011 WL 1486552
CourtUnited States Court of Appeals for Veterans Claims
DecidedApril 20, 2011
Docket09-0953
StatusPublished
Cited by55 cases

This text of 24 Vet. App. 379 (Robert H. Arneson v. Eric K. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robert H. Arneson v. Eric K. Shinseki, 24 Vet. App. 379, 2011 U.S. Vet. App. LEXIS 833, 2011 WL 1486552 (Cal. 2011).

Opinions

SCHOELEN, Judge:

Veteran Robert H. Arneson appeals through counsel a November 20, 2008, Board of Veterans’ Appeals (Board) decision that denied service connection for bilateral plantar fasciitis and a bilateral knee disorder, both on a direct basis and as secondary to service-connected bilateral pes planus. Record of Proceedings (R.) at 3-19. Because the Court finds that the Board erred by failing to afford Mr. Arne-son the opportunity for a personal hearing before all members of the Board panel that ultimately decided his case, the Court will vacate the Board’s decision and remand the vacated matter for further proceedings consistent with this opinion.

I. BACKGROUND

Mr. Arneson served on active duty in the U.S. Navy from March 1970 to October 1971. R. at 471-72. He initially applied for benefits for foot and knee conditions in February 2005. R. at 248. His claims relating to bilateral pes planus, bilateral plantar fasciitis, and a bilateral knee disorder were denied in a September 2005 regional office (RO) rating decision (R. at 247-52), a February 2006 Statement of the Case (SOC) (R. at 207-23), and a June 2006 Supplemental SOC (R. at 178-82). Mr. Arneson appealed to the Board and requested a hearing. R. at 205-06. In September 2006, Board member Sabulsky conducted an in-person hearing, at which Mr. Arneson and his sister testified. R. at 136-46. In an October 2007 decision, Board member Sabulsky remanded Mr. Arneson’s claims to obtain a medical opinion on the etiology of his conditions. R. at 98-102.

In January 2008, the RO granted service connection for bilateral pes planus, evalu[381]*381ated as 10% disabling, but denied service connection for bilateral plantar fasciitis and a bilateral knee disorder. R. at 47-52. On June 17, 2008, Mr. Arneson testified at another Board hearing, this time appearing via video before Board member Herman. R. at 30-40. The record on appeal — and, according to the parties, the record before the agency — does not indicate whether this hearing was requested by Mr. Arneson or why Board member Sabulsky was not present.

In October 2008, without notice to Mr. Arneson, the Chairman of the Board assigned a panel to decide his appeal. On November 20, 2008, the panel, consisting of Board members Sabulsky, Herman, and Sullivan, denied the appellant’s claims for entitlement to service connection for bilateral plantar fasciitis and a bilateral knee disorder, both under direct service connection and as secondary to his service-connected pes planus. R. at 3-19. Although the Board found Mr. Arneson’s and his sister’s hearing testimony “credible,” the Board noted a 30-year lapse in time between service and the first treatment for Mr. Arneson’s conditions, and ultimately gave greater weight to the medical opinions that found no nexus between his present disabilities and service or his service-connected pes planus. R. at 16-18.

II. THE PARTIES’ ARGUMENTS

The novel question before the Court is whether a claimant is entitled to the opportunity for a personal hearing in front of all Board members that ultimately decide his appeal. Mr. Arneson asserts that the Board violated statute, regulation, and his right to fair process by not affording him the opportunity for a personal hearing in front of all three Board members that would ultimately decide his appeal. First, he argues that he has a statutory right to a hearing before a Board member or all members of a Board panel, depending on whether his appeal is assigned to a single Board member or a panel. Appellant’s Brief (Br.) at 9-13. Second, he contends that VA regulations compel the entire Board panel that is assigned to an appeal to conduct the hearing. Id.; Reply at 1-2. Third, he argues that fair process entitles him to a hearing in front of all the deci-sionmakers on his appeal. Id. He asserts prejudice because a personal hearing before Board member Sullivan could have swayed the Board’s determination regarding the credibility of his continuity-of-symptoms argument. Appellant’s Br. at 10-12.

At oral argument, the Secretary argued that no statute, regulation, or notion of fair process requires all members of a Board panel to conduct a Board hearing. He first noted that 38 U.S.C. § 7107(c) grants the Board Chairman the discretion to assign Board members to conduct a hearing. Second, he argued that an appellant would only be entitled to a hearing before every member of a Board panel if a panel was assigned to adjudicate his appeal before a hearing was held. Since his appeal was initially assigned to only Board member Sabulsky, the Secretary stated that it was proper for only Board member Sabulsky to hold the hearing. The Secretary explained that the Chairman assigned a three-member panel to decide Mr. Arneson’s appeal because two Board members had conducted two separate hearings; both Board members were required by statute to participate in the final determination; and two-person panels are prohibited by law. Third, referencing Del Rosario v. Peake, 22 Vet.App. 399, 406 (2009), he argued that fair process is not implicated because there is no inherent advantage in live testimony in front of a Board member. Finally, the Secretary argued that Mr. Arneson suffered no prejudice, because (1) Board members Sabulsky and Herman already [382]*382held hearings on Mr. Arneson’s claim and only a majority is required for a binding decision, and (2) the Board already found Mr. Arneson’s testimony concerning his continuity of symptoms “credible.”

Mr. Arneson also argues that the Board erred in (1) finding the duty to assist satisfied despite the absence of entrance and discharge medical reports from his service medical records; (2) finding that a June 2008 private medical opinion lacked probative value; (3) providing an inadequate statement of reasons or bases for denying his claim; and (4) failing to address the reasonably raised issue of service connection for Mr. Arneson’s hallux valgus disability. Appellant’s Br. at 13-21; Reply at 3-6. The Secretary refutes the first three arguments, but concedes that remand is warranted to enable the Board to consider the appellant’s reasonably raised issue of entitlement to service connection for hallux valgus. Secretary’s Br. at 4-16.

III. DISCUSSION

A. Purpose and Importance of the Board Hearing

Before the Board renders a decision in the veterans claims adjudication process, the claimant must be afforded an opportunity for a Board hearing. 38 U.S.C. § 7107(b) (“The Board shall decide any appeal only after affording the appellant an opportunity for a hearing.”). The purpose of VA hearings is “to permit the claimant to introduce into the record, in person,” pertinent evidence and arguments with respect to his claim, and testimony from the claimant or witnesses under oath or affirmation. 38 C.F.R. § 3.103(c)(2) (2010) (emphasis in original); 38 C.F.R. § 20.700(a) (2010) (“A [Board] hearing on appeal will be granted if an appellant ... expresses a desire to appear in person.”).

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Bluebook (online)
24 Vet. App. 379, 2011 U.S. Vet. App. LEXIS 833, 2011 WL 1486552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robert-h-arneson-v-eric-k-shinseki-cavc-2011.