Robert H. Arneson v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 833
| Vet. App. | 2011Background
- Arneson served in the U.S. Navy from March 1970 to October 1971.
- He filed initial VA foot/knee disability claims in February 2005 alleging bilateral pes planus, plantar fasciitis, and knee disorder.
- Initial RO denials occurred in Sept. 2005, Feb. 2006, and June 2006; he appealed and requested a hearing.
- A September 2006 in-person hearing was conducted by Board member Sabulsky with the veteran and his sister testifying.
- In Oct. 2007, the Board remanded to obtain an etiological medical opinion; a Jan. 2008 RO grant of pes planus but denial of plantar fasciitis and knee disorder followed.
- In June 2008, Arneson testified via video before a different Board member (Herman); later, in Oct. 2008, the Chairman assigned a three-member panel without notice to him, which ultimately denied the claims on Nov. 20, 2008.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Right to a hearing before all decisionmakers | Arneson argues he was denied a hearing before all panel members. | Secretary contends hearings are conducted by the designated member(s) and timing-based assignment governs. | Remand for a hearing before all panel members who will decide the appeal is required. |
| Interpretation of post-1994 hearing-assignment statutes | Statutes require a claimant to have a hearing before all members who will decide the appeal. | VA regulation/interpretation allows assignment-based hearing scope; time of assignment governs. | The Board violated statutory and regulatory provisions by not ensuring a hearing before all adjudicators. |
| Remand for reasonably raised issues (hallux valgus) | Hallux valgus was reasonably raised and should be considered. | Duty to assist/credibility issues implicated; remand appropriate to address raised issue. | Remand to adjudicate hallux valgus along with plantar fasciitis and knee claims. |
| Prejudice analysis of hearing error | Failure to hear before all decisionmakers prejudiced credibility determinations. | Record shows credibility findings; no prejudice shown. | Finding of prejudice supports remand. |
Key Cases Cited
- Arnesen v. Brown, 8 Vet.App. 432 (1995) (pre-1994 framework; hearsings by designated member(s))
- Thurber v. Brown, 5 Vet.App. 119 (1993) (notice and opportunity to be heard in VA process)
- Ashley v. Brown, 6 Vet.App. 52 (1993) (credibility and sworn testimony considered by Board)
- Caluza v. Brown, 7 Vet.App. 498 (1995) (credibility and nexus considerations in lay testimony)
- Sanders (Shinseki v. Sanders), 556 U.S. 396 (2009) (prejudice must be shown for errors in VA process)
- Overton v. Nicholson, 20 Vet.App. 427 (2006) (prejudice evaluation in VA claim processing)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand appropriate for legal error in proceedings)
- McDowell v. Shinseki, 23 Vet.App. 207 (2009) (Board as final factfinder; credibility and weight of evidence)
- Jones v. Derwinski, 1 Vet.App. 210 (1991) (credibility determinations are factual findings for the Board)
- Leatherbury v. Dep’t of Army, 524 F.3d 1293 (2008) (deference to credibility determinations in administrative factfinding)
- Haebe v. Dep’t of Justice, 288 F.3d 1288 (2002) (court deference to agency factual determinations)
- Tyler v. Cain, 533 U.S. 656 (2001) (statutory interpretation in context of overall scheme)
- FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120 (2000) (statutory interpretation; subsequent amendments matter)
- United States v. Fausto, 484 U.S. 439 (1988) (interpretive framework for later statutes)
- United States v. X-Citement Video, Inc., 513 U.S. 64 (1994) (interpretive principles for statutory ambiguity)