95-23 643
95-23 643
Board of Vet. App.Mar 31, 2017Background
- Veteran served on active duty 1972–1976 and seeks 38 U.S.C. § 1151 compensation for right shoulder disability alleged to result from VA treatment in April 1993.
- Initial RO denial (Feb 1995) led to multiple Board remands and hearings (1997, 2000); panel adjudications and subsequent Court remands followed.
- The Court vacated and remanded a prior Board denial as to the right shoulder because of prior remand noncompliance; the cervical spine denial was previously affirmed.
- Multiple remands ensued to afford proper hearings and development; two VLJs who held prior hearings later left the Board, altering panel requirements.
- Veteran requested a third hearing; scheduling issues and a missed June 2015 videoconference (for which good cause was later found) resulted in further remands to schedule a hearing before a VLJ who will decide the appeal.
- Board remanded to: (1) clarify claimant’s representative (possible concurrent appointments of attorney and American Legion), and (2) schedule the requested VLJ hearing; claimant may submit additional evidence and the claim must be expedited.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Entitlement to § 1151 compensation for right shoulder injury allegedly from VA treatment | Right shoulder disability is causally related to April 1993 VA treatment and merits § 1151 compensation | VA/RO previously denied causation and compensation; procedural compliance and development required | Not finally decided; remanded for additional development and a VLJ hearing before decision-makers |
| Right to in-person/videoconference hearing before all Board members who will decide the case | Veteran sought hearing before the full panel that would decide his appeal (including a third VLJ) | VA contends hearings are scheduled by RO; panel composition changed because prior VLJs left the Board; claimant still entitled to a hearing before the deciding VLJ(s) | Remanded to schedule the requested VLJ hearing; VA must notify veteran and counsel of date/time/location |
| Representation clarity (conflicting representatives) | Veteran has consistently been represented by attorney Cameron since 1977; counsel submitted filings | Evidence shows appointment of American Legion in May 2015 without limitation, creating ambiguity | Remanded to obtain clarified representation via VA Forms 21-22 and 21-22a before further adjudication |
| Procedural compliance with prior remand orders (and Court directives) | Veteran relies on prior remands and Court orders to obtain full development and hearing | VA/Board must follow remand orders and Arneson directive regarding hearings before deciding panel | Board remanded to ensure compliance with remand and to afford due process; no merits determination made |
Key Cases Cited
- Arneson v. Shinseki, 24 Vet. App. 379 (2011) (Board must afford claimant an opportunity for a hearing before every member of the panel that will decide the appeal)
- Kutscherousky v. West, 12 Vet. App. 369 (1999) (claimant may submit additional evidence and argument during remand; remand requires further development)