1. Cheryl Mason Chief Veterans Law Judge June 2014
Key Concepts in Veterans Law and An Overview of the Board of Veterans’ Appeals (Board)
Cheryl Mason
Chief Veterans Law Judge
June 2014

2. Agenda Part I - Key Concepts in Veterans Law Service Connection
Other Matters: Competency, Credibility, and Lay Evidence
Remands
TDIU
Part II - The Board of Veterans’ Appeals: An Overview
Part III - Board Hearing Process Overview

3. The Road to Service Connection: Key Themes
There are basic eligibility requirements for VA disability benefits
There are multiple elements that are required to establish entitlement to service connection
There are multiple ways (i.e., theories of entitlement) to establish entitlement to service connection SC
Established!

4. Service Connection Qualifying service (basic eligibility)
Current disability (element)
In-service injury or disease or aggravation of such (element)
Nexus between the current disability and the in- service disease or injury (element)

5. What is Qualifying Service?
Claimant must be a “veteran” (or a dependent of a “veteran”)
A “veteran” is a person with “active military service” and who was discharged “under conditions other than dishonorable.”
“Active military service” includes:
Active Duty
Active Duty for Training (ACDUTRA)
Inactive Duty for Training (INACDUTRA)
Source to establish “active military service” = service department records
VA is bound by service department findings
“Veteran” = 38 U.S.C.A. § 101(2), 38 C.F.R. § 3.1(d).
“Active military service” = 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6
ACDUTRA + INACDUTRA = reservists + National Guard
Character of Discharge = 38 U.S.C.A. § 105, 38 C.F.R. §§ 3.1, 3.12
Willful Misconduct = 38 C.F.R. § 3.1, 3.301

6. Current Disability Competent evidence of a current disability
ex: medical diagnosis by a variety of professionals, to include MDs, nurses, chiropractors, social workers, psychologists and others with specialized knowledge, education, experience or training to render them qualified to provide a diagnosis
VA or private medical records
Letters or statements by physicians
Disabilities capable of lay observation ~ if a disability is the type that can be observed by a lay person (ex: varicose veins, tinnitus), then a separate medical diagnosis may not be required
A disability that resolves during the appeal period may still be service connected
McClain v. Nicholson, 21 Vet. App. 319 (2007).

7. Not a Current Disability
Pain without a diagnosed or identifiable underlying malady or condition does not constitute a disability, but it may be adequate to trigger the need for a VA examination.
Congenital diseases, but not defects, are considered disabilities. A medical opinion may be required to determine whether a condition is properly classified as a congenital disease or defect.

8. Current Disability (contd.)
VA’s duty to assist a Veteran by affording an opportunity for a VA examination
Low threshold to trigger this duty to assist
McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006)
(1) competent evidence of a current disability or persistent or recurrent symptoms of a disability
(2) evidence establishing that an event, injury, or disease occurred in service
(3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service

9. Issue: What Current Disability is the Veteran Claiming?
Some claimants may not possess the necessary knowledge to accurately describe to VA what disease or injury is being claimed
ex: “I have a leg disorder”
Does this mean arthritis? sciatica? rash?
VA may thus have to determine the disability being claimed
Clemons v. Shinseki, 23 Vet. App. 1 (2009)
VA should not limit review only to the diagnosis alleged by the claimant
Instead, VA consideration should include all diagnoses which may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that the Secretary obtains in support of the claim
VA’s duty to fully and sympathetically develop a claim to its optimum and to determine all potential claims raised by the evidence
Duty to sympathetically develop a claim = Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004).

10. In-service Incurrence of a Disease or Injury
Medical or lay evidence of an in-service event/injury/disease
Documented event or treatment in service records
Veteran’s description of symptoms
Buddy statements/statements from family members
Letters written during service describing the event/injury/disease
Newspaper articles
Missing service records (1973 Fire at National Personnel Records Center in St. Louis)
VA’s heightened duty to assist ~ VA must obtain unit records and research unit histories

11. In-service Injury or Disease
May be reflected in a veteran’s service treatment records.
Even if there is no medical evidence of a particular injury or disease in service, a veteran is competent to report such disease or injury and a determination needs to be made as to whether any such report is credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, (Fed. Cir. 2006).

12. In-service Injury or Disease
If a veteran engaged in combat, lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of an in-service disease or injury if such evidence is consistent with the circumstances, conditions, or hardships, of the veteran’s service.
38 U.S.C.A. § 1154(b).

13. Nexus (“the link”)
Connection between current disability and in-service incident
Competing Medical Opinions
VA must consider probative weight of opinions
Knowledge/expertise
Whether claims file was reviewed
Thoroughness of opinion/rationale

14. Nexus
The nexus element is also satisfied if there is medical evidence or credible lay evidence of a continuity of symptomatology. Continuity of symptomatology is established if:
(1) there is evidence that a condition was noted in service (need only be evidence of a symptom in service and does not require an actual diagnosis);
(2) there is evidence of post-service continuity of the same symptomatology; and
(3) there is medical or, in certain circumstances, lay evidence that the post-service symptomatology is related to the present disability.
Be aware of the recent case Walker v. Shinseki, 708 F.3d (Fed. Cir. 2013) which limited continuity of symptomatology to diseases listed in 38 C.F.R. § 3.309(a).

15. Other “Roads” or Theories of Entitlement
Aggravation of a Pre-Service (i.e., pre-existing) Disorder
“Aggravation” means a permanent worsening beyond natural progression
Must be more than a temporary flare-up

16. Aggravation (contd.) KEY: “Noted” on service entry vs. NOT “Noted”
If the condition was “noted” on service entry examination, then presumption of aggravation attaches:
if condition increased in severity during active service, then VA will consider it to have been aggravated by service (unless specific finding that the increase in disability was due to natural progress of disease)
Service Entry Examination
*Defective hearing on examination

17. Aggravation (contd.)
If the condition was NOT “noted” on service entry examination, then Veteran presumed to have been in sound condition upon entry
If presumed sound on entry, then direct service connection may be established
Only way to rebut soundness presumption - VA must show by clear and unmistakable (i.e., undebatable) evidence BOTH that (1)the injury/disease existed before entry and (2) that it was not aggravated by service (HIGH Standard). See Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004).
Service Entry Examination
*Normal hearing on examination

18. Aggravation
A pre-existing injury or disease is considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease.
Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.

19. Other “Roads” or Theories of Entitlement
Presumptions
Disability not diagnosed during active service, but it is presumed to be related to active service because it arose within a specified time period after discharge
Liberalizing rule ~ Congress has directed that certain diseases shall be presumed to be service connected (unless there is affirmative evidence that it is not related to service)
Theory behind presumptions ~ idea that the designated disease that first manifested post-service probably had its beginnings during service because of the nature of that identified disease

20. Presumptions (contd).
Presumptive Diseases (full list: 38 C.F.R. § 3.309)
Chronic diseases = permanent diseases that may wax and wane but never go away
ex: hypertension, diabetes mellitus, tuberculosis
Tropical diseases
ex: cholera, malaria, yellow fever
Diseases of Former POWs
ex: beriberi, cirrhosis, IBS, chronic dysentery
Radiogenic diseases ~ must have participated in a “radiation-risk activity”
ex: leukemia, various cancers
Diseases associated with Agent Orange Exposure
ex: chloracne, various cancers
Lou Gehrig’s Disease (see 38 C.F.R. § 3.118)

21. Presumptions (cont.)
Diseases associated with exposure to mustard gas or Lewisite (38 C.F.R. § 3.316).
Undiagnosed illness/infectious diseases in “Persian Gulf veterans,” as that term is defined by regulation (38 C.F.R. § 3.317).
Amyotrophic Lateral Sclerosis (38 C.F.R. § 3.318).
Tuberculosis disease (38 C.F.R. § 3.371).

22. Presumptions (contd.) Presumptive Periods
Typically must manifest within 1-year of discharge (i.e., some chronic and tropical diseases)
Some may manifest at any time after discharge (i.e., former POWs)
NOTE : If a Veteran cannot establish service connection on a presumptive basis, s/he may still establish service connection under another theory!

23. Other “Roads” or Theories of Entitlement
Secondary Service Connection
A disability that is proximately due to or the result of an already service connected disability
ex: peripheral neuropathy secondary to service connected diabetes mellitus
or a disability that is aggravated (made worse) by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. §

24. Secondary Service Connection (contd.)
Elements:
An already service connected disability
A second disorder
Medical evidence of a nexus between the service connected disability and the creation of or aggravation of the second disorder

25. Secondary Service Connection (contd.)
For claims filed after October 10, 2006, aggravation by a service-connected disability is not conceded unless a baseline for the claimed disability can be established prior to any aggravation.
38 C.F.R. § 3.310(b).

26. Other Matters Competency
Medical evidence - requires proper knowledge, skills or specialized training
Lay evidence
must have personal knowledge of matter derived from his/her own senses
competent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge

27. Lay Evidence
What is lay evidence? – Any written or verbal evidence from someone who does not have expertise in a relevant profession, such as medical or legal training, or other specialized training or expertise.
If the lay evidence relates to a matter that would require medical expertise, you need to assess whether the lay provider has any specialized training or expertise (such as being a doctor, nurse, etc.)
Symptoms vs. Diagnoses - Veterans can generally report information as to symptoms experienced, but not diagnoses (unless he or she is a trained medical professional).
If lay evidence relates to symptomatology, it almost always will be competent evidence, as a lay person can report symptoms that he or she personally experiences, such as pain, limitation of motion, etc.
For service connection cases, lay evidence may raise a potential continuity of symptomatology issue to address both in terms of deciding whether an examination or opinion must be provided or obtained, and in deciding the claim on the merits. .
Reasons or Bases: VA has a duty to consider all information of record including both lay and medical evidence. See 38 U.S.C. § 1154(a), 5107(b), 7104(a); 38 C.F.R. § 3.303(a), 3.304(b)(2), 3.307(b). VA also has a duty to address the weight to be given to the evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
Competent lay evidence is defined as any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.
38 C.F.R. § 3.159(a)(2).

28. Lay Evidence - not competent to report:
Lay Evidence -competent to report:
Cancers
Cause of Death
Bronchial Asthma
Meniere’s Disease
Rheumatic Fever
Chondromalacia
Disk Herniation
Diagnosis of any other medical condition that requires specialized training to diagnose
Asthma Symptoms
Tinnitus
Headaches, dizziness, etc.
Pain in feet; Flat Feet (Pes Planus)
Knee Symptoms
Dislocated Shoulder & Broken Leg
Hip Disorder with Rotated Foot
Varicose Veins
Psychiatric Symptoms (Paranoid Schizophrenia)
Fall Injury/Trauma
Some Skin Disorders (such as a rash)
Frostbite Residuals
Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (carcinomas); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (cause of death); Layno v. Brown, 6 Vet. App. 465, (1994) (bronchial asthma); Horowitz v. Brown, 5 Vet. App. 217, (1993); Connolly v. Derwinski, 1 Vet. App. 566, 567 (1991) (Meniere’s disease); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (rheumatic fever).
Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991)(asthma symptoms); Layno v. Brown, 6 Vet. App. 465, (1994) (asthma symptoms); Charles v. Principi, 16 Vet. App 370, 374 (2002) (tinnitus); Horowitz v. Brown, 5 Vet. App. 217, (1993) (Meniere’s symptoms: dizziness, loss of balance, hearing trouble, stumbling and falling, tinnitus, nausea); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (painful feet/flat feet/pes planus); Clyburn v. West, 12 Vet. App. 296, 301 (1999) (knee symptoms); Jandreau v. Nicholson, 492 F.3d. 1372, 1377 (Fed. Cir. 2007) (Dislocated shoulder & broken leg); Washington v. Nicholson, 19 Vet. App. 362, 369 (2005) (Hip disorder with rotated foot); Barr v. Nicholson, 21 Vet. App. 303, (2007) (varicose veins); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (psychiatric symptoms (paranoid schizophrenia); Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Fall injury/trauma); McCartt v. West, 12 Vet. App. 164, 167 (1999); Some skin disorders (such as rash); Goss v. Brown, 9 Vet. App. 109, 113 (1996) (Frostbite residuals).
Reminder: Please be cautious because, even though lay evidence may not be competent to diagnose a specific disease, it still may be competent to report symptoms of that disease. See Layno v. Brown, 6 Vet. App. 465, (1994) (bronchial asthma was not competent; however, testimony of symptoms of difficulty breathing is competent).
“The beliefs of lay witnesses (including claimants) on issues of diagnosis and medical causation are not competent evidence in situations where those issues require medical expertise to resolve.” Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J., concurring). “The question of whether a particular medical issue is beyond the competence of a layperson—including both claimants and [VA adjudicators] must be determined on a case-by-case basis. Simply put, any given medical issue is either simple enough to be within the realm of common knowledge for lay claimants and adjudicators or complex enough to require an expert opinion.” Id. (citations omitted).

29. Other Matters (contd.) Credibility
VA considers all statements made in the context of entire record
Some credibility factors:
Internal consistency or lack thereof
Facial plausibility
Consistency with other evidence submitted on behalf of the claimant
Demeanor of witness (if hearing held)
Bias
Character

30. Other Matters (contd.)
VA must consider the competency and credibility of lay evidence as it relates to all necessary elements and evidentiary hurdles in establishing a claim for benefits, to include:
Current diagnosis
Nexus
Continuity of symptoms
Occurrence of an event in service
Combat or other circumstances of service

31. Remands

32. Why May the Board Remand?
Change in Law or Regulation
Inadequate or Incomplete Development
Due Process issues

33. Where Board Remands Go AMC – Appeals Management Center
RO – Regional Offices
VAMC (VHA) – VA Medical Centers
NCA – National Cemetery Administration
The AMC handles the majority of our remands- most common The ROs take cases where the representative is a private attorney- 2nd most common
The VAMCs takes our VHA letters and offer an opinion from a physician
Medical Schools take our IME letters and offer an opinion
Pittsburgh, PA RO- handles claims from abroad
NCA- Handles burial benefits claims, very rare to see

34. Common Categories of Remands
Due Process/Procedure
Stegall violation, Manlincon, hearing request, inextricably intertwined issues
VCAA Notice
Secondary service connection, new & material (Kent), death notice (Hupp)
Proper Development
Private treatment records, VA treatment records, Social Security records, medical examinations or opinions, inadequate examinations

35. Stegall
A previous remand confers on the claimant, as a matter of law, the right to compliance with the remand orders
Stegall v. West, 11 Vet. App. 268 (1998)
There must be substantial compliance with the previous remand orders
D’Aries v. Peake, 22 Vet. App. 97 (2008)
The AMC or RO should have substantially complied with the previous remand directives.

36. Manlincon
The general practice is to remand for a Statement of the Case where the Veteran filed a timely Notice of Disagreement, but no Statement of the Case has been issued
Manlincon v. West, 12 Vet. App. 238,  (1999)
38 C.F.R. § 19.9
The key to Manlincon is that the issue is not going to be listed on the VA Form 8 as a certified issue from the RO and it will not be on the brief face.

37. New Evidence Received but Not Considered by AOJ
Pertinent, non-duplicative, evidence received at the Board or at the RO after the last SOC (or SSOC) must be first considered by the RO unless there is a waiver of RO consideration
38 C.F.R. §§ 19.37(a), (c)
*Change in law* – Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012
38 U.S.C. § 7105(e)(1) (effective 180 days after 8/6/12)
Where new evidence has been submitted, the Board may consider it in the first instance unless there is a request for RO review
Applicable only where VA-9 filed on or after effective date (2/2/13)

38. Inextricably Intertwined Issues
Arise when the Veteran has at least two issues pending and one cannot be decided without another being decided as well
Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)
Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009)

39. Common Remands for Errors in VCAA Notice
Theories of entitlement that Veteran has raised (i.e., secondary service connection)
The elements of a SC PTSD claim based on personal assault require a specialized notice letter
38 C.F.R. § 3.304(f)(5)
This informs the Veteran that there are different ways to substantiate his or her claim as many times assaults are not reported or recorded in treatment records
Particular requirements for Cause of Death claims
Hupp v. Nicholson, 21 Vet. App. 342, (2007), rev’d on other grounds, Hupp v. Shinseki, 329 Fed. Appx. 277 (Fed. Cir. May 19, 2009)
Particular requirements for new and material claims
Kent v. Nicholson, 20 Vet. App. 1, (2006)
The last page of the VCAA notice will tell you what documents were attached (the attachments generally are not included), for example- SC notice, IR notice, etc.
New and material notice tells the Veteran when their claim was denied, why it was denied, and what constitutes new and material evidence. This is in the body of the VCAA letter.

40. Remands for Additional Development
Notification of Inability to Obtain Records
Federal Records
Reasonable Efforts to Obtain Private Records
Examinations
This is one of the areas that YOU – VSOs can help!

41. VA Notification of Inability to Obtain Records
RO must notify the Veteran that it was unable to obtain federal or private treatment records
38 C.F.R. § 3.159(e)

42. Obtaining Federal Records
VA efforts to obtain federal records must continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.
38 U.S.C. § 5103A(b)(3)
Constructive receipt of VA records - VA is in constructive possession of all VA generated records.
Bell v. Derwinski, 2 Vet. App. 611, (1992).
Service treatment records may be relevant even in increased rating claims
Moore v. Shinseki, 555 F.3d 1369, (Fed. Cir. 2009)
There is a duty to obtain records in new and material evidence cases where the Veteran is attempting to reopen their claim
38 C.F.R. § 3.159(c)
As many requests as necessary really means until there is a determination that it is reasonably certain the records do not exist or further efforts to obtain them would be futile. 38 C.F.R. § 3.159(c)(2) .
An initial determination is needed concerning whether the records are “relevant.” If the records that a Veteran has identified clearly have nothing to do with the pending claim, then they are probably not relevant. See Golz v. Shinseki, 590 F.3d 1317, 1321 (Fed. Cir. 2010) ("Relevant records for the purpose of § 5103A are those that relate to the injury for which the claimant is seeking benefits and have a reasonable possibility of helping to substantiate the Veteran's claim.“).
Bell v. Derwinski, 2 Vet. App. 611, (1992): VA is held to be in “constructive possession” of all VA generated records (i.e., VA medical records, VA psychiatric counseling records, VA vocational-rehabilitation records, VA administrative records, etc.) and must secure and associate all such relevant records with the claims file.
Reminder: Although Vet Center records are controlled by VA, a separate authorization form may be required in order to obtain them.

43. SSA Records
Relevant records from the Social Security Administration (SSA) need to be obtained and associated with the claims file
Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010)

44. Missing Service Treatment Records
When STRs are missing or destroyed, VA has a heightened duty to:
(1) assist a Veteran in developing a claim
(2) consider the applicability of the benefit of the doubt rule, and
(3) explain its findings and conclusions.
In 1973 there was a fire at the National Personnel Records Center in St. Louis and million Veterans’ service records were burned.

45. Obtaining Private Records
What to look for:
References to treatment by providers other than at a VA Medical Center (VAMC)
The Veteran’s identification of private treatment providers at a hearing
Notation of private treatment in a VA examination report
Signed authorization to release private records to VA
“Reasonable efforts” to obtain private records

46. VA’s Duty to Obtain Medical Examinations/Opinions
VA's duty to assist requires that a VA medical examination and/or opinion must be provided when there is insufficient medical evidence on file for VA to make a decision on a claim, and there is:
competent evidence of a current disability, or persistent or recurrent symptoms of disability;
evidence that an event, injury or disease occurred in service, or during an applicable presumptive period; and
an indication that the disability or symptoms may be associated with the Veteran's service, or with another service connected condition.

47. Important Information in Exams or Opinions
Discussion of lay evidence
A rational for the opinion expressed
Indication that the claims file was reviewed
All theories of entitlement are addressed

48. Remand Reasons to RO/AMC
VA medical records
Current findings (medical examination/opinion)
No VA examination conducted
Private medical records
Social Security records
Board travel/video hearing
Adjudicate intertwined issue(s)
Noncompliance/Stegall
Issue SOC/Manlincon

49. Remand Reasons from CAVC
Inadequate reasons and bases (i.e., discussion of credibility/evidence)
Additional development (i.e., medical opinion/examination; obtaining records)
Application of laws/regulations
Here are some other areas – you the VSOs can help us

50. Total Disability Rating For Compensation Based on Individual Unemployability (TDIU) 38 C.F.R. § 4.16
Total disability ratings for compensation may be assigned:
where the schedular rating is less than total, and
when Veteran is unable to secure or follow a substantially gainful occupation as a result of S-C disabilities.

51. Establishing a TDIU 38 C.F.R. § 4.16(a):
Veteran meets combined schedular rating criteria
38 C.F.R. § 4.16(b):
Veteran does NOT meet combined schedular rating criteria

52. 38 C.F.R. § 4.16(a): When the Veteran meets the combined schedular rating criteria
Necessary schedular rating criteria:
1 S-C disability, rated at least 60%
2 or more disabilities, 1 rated at least 40% with a combined rating of at least 70%

53. VA Fast Letter 13-13
Veteran has 1 disability rated 60% with additional disability rated 0 or 10% = combined rating of 60%. 
4.16(a) should be interpreted as applying to cases where no single disability is sufficient to meet the 60% criterion.
38 C.F.R. § 4.16(a) provides 5 circumstances where Veteran’s disability ratings will be combined and considered as one disability.

54. What to Consider? Consideration may be given to Level of education
Special training, and
Previous work experience.
Consideration may NOT be given to
Age or
Impairment caused by non S-C disabilities.

55. Substantially Gainful Employment
The Court defined “substantially gainful employment” as a job that provides an annual income that exceeds poverty threshold for one person.
Applies irrespective of the number of hours/days worked and without regard to the Veteran’s earned annual income.

56. Marginal Employment
Marginal employment is NOT considered substantially gainful employment.
Veteran's earned annual income is less than the poverty threshold for one person.
May also be held to exist when earned annual income exceeds poverty threshold (e.g., employment in a protected environment such as family business or sheltered workshop).

57. 38 C.F.R. § 4.16(b): When a Veteran does NOT meet the combined schedular rating criteria
If a veteran fails to meet the percentage ratings under 38 C.F.R. § 4.16(a), VA is still required to consider § 4.16(b). 

58. 38 C.F.R. § 4.16(b) Procedures
Veterans who are unemployable because of S-C disability(ies) and do not meet the schedular criteria should be submitted to the Compensation Director for extra-schedular TDIU consideration.
The Board CANNOT award a TDIU under § 4.16(b) in the first instance.

59. Directly Raising a TDIU Claim
File VA Form , Veteran’s Application for Increased Compensation Based on Unemployability; or
Submission in any written form of communication expressing intent to seek TDIU. 

60. Indirectly Raising a TDIU Claim
When the veteran submits evidence of unemployability in an IR claim, a TDIU claim is also inferred.  Rice v. Shinseki, 22 Vet. App. 447 (2009).
Even though TDIU is part of an IR claim, the Board has the power to bifurcate these issues. 

61. Duty to Assist
Whether S-C disability(ies) render a veteran unemployable is a legal determination for adjudicators to make rather than a medical question to be answered by health care professionals.

62. The Board of Veterans’ Appeals:
Part II
The Board of Veterans’ Appeals:
An Overview
Introduction

63. Board of Veterans’ Appeals (Board) Mission
“. . . to conduct hearings and dispose of appeals properly before the Board in a timely manner.” 38 U.S.C. § 7101(a).
Jurisdiction
“All questions in a matter which is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary. Final decisions on such appeals shall be made by the Board.” 38 U.S.C. § 7104(a).
Office of
SECVA*
VBA
VHA
NCA
* The Board is a Staff Organization
that reports directly to the Secretary.

64. Appeals at a Glance
Right to Appeal. Veterans, Dependents of Veterans, and Survivors of Veterans have a right to appeal all decisions regarding VA benefits.
One year to Appeal. Veterans have one year to initiate an appeal of a VBA Regional Office (RO) decision.*
Multi-Stage VA Appeals System. Most of the stages for appeals processing occur at the VBA RO level. If the matter is not resolved to the Veteran’s satisfaction, the appeal may be transferred to the Board for a final agency decision.
Board Review. The Board conducts a de novo review of the entire case, meaning that it considers all evidence without deference to factual findings and legal conclusions at the VBA RO level.
Federal Court Review. If a Veteran remains dissatisfied with a Board decision, they may appeal outside the Agency to the United States Court of Appeals for Veterans Claims (CAVC), the Federal Circuit and ultimately to the United States Supreme Court.
*Approximately 96 percent of the Board’s incoming workload comes from VBA; the other 4 percent comes from different sources, such as NCA, VHA, and OGC.

65. Management, Planning & Analysis
Board Structure
Chairman (EX)
The Board has 4 main components:
Chairman’s Office
Appellate Group
Management, Planning & Analysis
Office of Veterans Law Judges (OVLJ)
Chief Counsel
Policy & Procedure
(SL)
Vice Chairman
(SES / VLJ)
Principal Deputy
Vice Chairman
(SES / VLJ)
Appellate Group
Chief Counsel
Operations
(SL)
Deputy Vice
Chairman (SES / VLJ)
OVLJ
Deputy Vice
Chairman (SES / VLJ)
OVLJ
Director
Management, Planning & Analysis
(SES)
Chief VLJ *
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
Chief VLJ
* VLJ = Veterans Law Judge
Note: Chief VLJs supervise VLJs, Senior Counsel (GS-15), and attorneys (GS 9-14)

66. FY 2012 Performance 12,334 Hearings 44,300 Decisions
Every VLJ conducts Travel Board hearings in the field, plus additional video hearings and Central Office hearings
44,300 Decisions
52 VLJs produce 752 or more decisions each year
Attorneys support VLJs; each must produce at least 156 case credits per year

67. Types of Board Decisions
De novo review of entire claims file (i.e., full review of all evidence)
Final decision of VA
Appealable to the CAVC
In FY2012, the Board had a grant rate of 28.4% and a denial rate of 22.5%
Remand
Directs development by the local field office (most often to VBA’s Appeals Management Center (AMC)) in Washington, DC
In FY2012, the Board had a remand rate of 45.8%

68. Approximately 25% of appellants request an optional hearing.
Board Hearings
Approximately 25% of appellants request an optional hearing.
Central Office
VLJ & Veteran sit at Board Offices in Washington, DC
Travel Board
VLJ & Veteran sit at local RO
Video Conference
VLJ sits in DC; Veteran sits at
local RO

69. Representation Veterans Service Organizations (VSOs) Attorneys Pro se
Represent approximately 80% of appellants before the Board
Attorneys
Represent approximately 9% of appellants before the Board
Pro se
Approximately 9% of appellants before the Board elect to represent themselves
Note: approximately 2% of appellants before the Board are represented by other types of agents.

70. Initiatives to Increase Efficiencies in Appeals Process
Leveraging Technology to Streamline Operations
Full partnership in VA Transformation efforts (i.e., VBMS)
Increasing Video Teleconference (VTC) Hearings
Virtual Docket, virtualize mail, VSO Informal Hearing Presentations (IHPs), and Board hearing transcripts
Reducing Remands through Joint Training Initiative
Partnering with VBA to reduce appeals and the rework required when the Board remands to VBA
Partnering with VHA to improve quality of VA examinations to prevent remands for new examinations/additional medical opinions
Shorter Board Decisions for appeals that can be allowed or remanded
Case Triaging under 38 U.S.C. § 7107(f) to quickly identify cases that require additional development

71. Part III Board Hearing Process: An Overview

72. Right to a Board Hearing
A hearing on appeal will be granted if an appellant, or an appellant’s representative acting on his or her behalf, expresses a desire to appear in person. 38 C.F.R. § 20.700(a).
An appellant, or an appellant’s representative, may request a hearing before the Board at a Department of Veterans Affairs field facility when submitting the substantive appeal (VA Form 9) or anytime thereafter, subject to the restrictions in Rule 1304 (38 C.F.R. § ). 38 C.F.R. § 

73. Nonadversarial Nature of Board Hearings: 38 C.F.R. § 20.700(c)
Hearings conducted by the Board are ex parte in nature and nonadversarial.
Parties to the hearing will be permitted to ask questions, including follow-up questions, of all witnesses, but cross-examination will not be permitted.
Proceedings will not be limited by legal rules of evidence, but reasonable bounds of relevancy and materiality will be maintained.
The presiding VLJ may set reasonable time limits for the presentation of argument and may exclude documentary evidence, testimony, and/or argument that is not relevant or material to the issue, or issues, being considered or which is unduly repetitious.

74. Witnesses at Board Hearings: 38 C.F.R. § 20.710
The testimony of witnesses, including appellants, will be heard.
All testimony must be given under oath or affirmation.

75. Functions of the Presiding VLJ: 38 C.F.R. § 20.700
The presiding VLJ of a hearing panel is responsible for the conduct of the hearing, for administration of the oath or affirmation, and for ruling on questions of procedure.
The presiding VLJ will assure that the course of the hearing remains relevant to the issue, or issues, on appeal and that there is no cross- examination of the parties or witnesses.

76. General Sequence of Events at Hearing
Pre-Hearing Conference
Hearing
VLJ opening
Oath / affirmation
Representative’s opening statement
Representative’s questioning
VLJ questioning – 38 C.F.R. § 3.103(c)(2)
Representative’s closing statement
Adjournment of hearing

77. Purpose of the Pre-Hearing Conference: 38 C.F.R. § 20.708
The purpose of the pre-hearing conference is to:
Clarify the issues to be considered at a hearing on appeal.
Obtain rulings on the admissibility of evidence.
Develop stipulations of fact.
Establish the length of argument that will be permitted.
Take any other steps that will make the hearing itself more efficient and productive.

78. Pre-Hearing Conference: Significant Case Law as to the “Issues” Before the Board
Significant case law impacting the identification of the issues on appeal before the Board include:
Rice v. Shinseki, 22 Vet. App. 337 (2009) – TDIU
Clemons v. Shinseki, 23 Vet. App. 1 (2009) – service connection generally
Evans v. Shinseki, 25 Vet. App. 7 (2011) – Impact of selecting box 9A, which indicates that the Veteran wants to appeal all of the issues listed in the Statement of the Case (SOC) and/or Supplemental SOC (SSOC).
DeLisio v. Shinseki, 25 Vet. App. 45 (2011) – The withdrawal of a claim must be explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant.

79. Pre-Hearing Conference: “Housekeeping Issues”
Identify the appellant, as well as any of his/her witnesses.
Go over the basic ground rules for the proceeding, i.e., the likely sequence of events at the hearing.
Inquire as to whether any new evidence will be submitted.
Inquire as to whether the appellant would like to request to hold the record open. See 38 C.F.R. § 
Inquire as to whether there are adequate grounds for advancing the appeal on the Board’s docket pursuant to 38 C.F.R. § 20.900(c)(i.e., due to age, financial hardship, or serious illness).

80. Pre-Hearing Conference: Prior Hearings
In Arneson v. Shinseki, 24 Vet. App. 379, 386 (2011) the CAVC held that a claimant has the right to have the opportunity to testify at a Board hearing before all the VLJs who will decide his appeal.
This relates to whether the appellant testified at a prior hearing on some or all of the same issues that are currently before the Board.

81. Law Impacting the Conduct of Board Hearings
38 C.F.R. § 3.103(c)(2) imposes two distinct duties on the VLJ:
(1) A duty to fully explain the issues on appeal.
(2) A duty to suggest that a claimant submit evidence on an issue material to substantiating the claim.
Bryant v. Shinseki, 23 Vet. App. 488 (2010)
Procopio v. Shinseki 26 Vet. App. 76 (2012)

82. 38 C.F.R. § 3.103(c)(2): Submission of Evidence
In Procopio, the VLJ, who agreed to hold the record open for an additional medical nexus opinion, erred in failing to explain that a nexus opinion alone would be insufficient to substantiate the Veteran’s claims without evidence of in-service exposure to herbicides.

83. 38 C.F.R. § 3.103(c)(2): Submission of Evidence
VLJ’s obligation extends to evidence not yet in existence.
As the Court noted in Bryant, in Sizemore v. Principi, 18 Vet. App. 264 (2004), a Veteran seeking service connection for post-traumatic stress disorder described at a hearing his experiences in Vietnam. Id. at 274.
The VLJ should have advised the Veteran as to the types of information that may help corroborate his claimed in- service stressors; the VLJ failed to notify him that he could submit corroboration in the form of “buddy statements.”

84. 38 C.F.R. § 3.103(c)(2): Submission of Evidence
In either a service connection claim or in a claim seeking a higher rating, the VLJ may also inquire as to whether there is any potential evidence that may not yet be in existence that may help substantiate the claim.
Such evidence may include:
Medical nexus evidence
Lay evidence of the in-service onset of a disability
Medical or lay evidence of the current severity of a disability

85. 38 C.F.R. § 3.103(c)(2)
The VLJ may also inquire as to additional theories of entitlement, including those not raised by the appellant.
Specifically, in light of the Federal Circuit’s decision in Schroeder v. West, 212 F. 3d (Fed. Cir. 2000) and its progeny, VA has an obligation to investigate all theories raised by the record or raised by a sympathetic reading of the claimant’s filing.

86. Procurement of Additional Evidence Following a Hearing: 38 C. F. R
If it appears during the course of a hearing that additional evidence would assist in the review of the questions at issue, the presiding VLJ may direct that the record be left open so that the appellant and his or her representative may obtain the desired evidence.
The presiding VLJ will determine the period of time during which the record will stay open, considering the amount of time estimated by the appellant or representative as needed to obtain the evidence and other factors adduced during the hearing.
Ordinarily, the period will not exceed 60 days, and will be as short as possible in order that appellate consideration of the case not be unnecessarily delayed.

87. Conclusion of Hearing
Following the representative’s closing statement, the VLJ will ask the appellant whether he/she is satisfied with the conduct of their hearing.
The VLJ will express appreciation for his/her appearance.
The VLJ will then formally adjourn the hearing.

88. Questions and Discussion

89. APPENDIX: Life Cycle of a VA Appeal

90. References United States Code (U.S.C.) Title 38
Code of Federal Regulations (C.F.R.) Title 38