Louis R. Frantzis v. Denis McDonough

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 20-5236

LOUIS R. FRANTZIS, APPELLANT,

V.

DENIS MCDONOUGH,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Argued April 14, 2022 Decided June 21, 2022)

Robert C. Brown, Jr., of Norman, Oklahoma, for the appellant.

Brent A. Bowker, with whom Richard A. Sauber, General Counsel; Mary Ann Flynn, Chief

Counsel; and Kenneth A. Walsh, Deputy Chief Counsel, all of Washington, D.C., were on the brief

for the appellee.

Before ALLEN, FALVEY, and JAQUITH, Judges.

ALLEN, Judge, filed the opinion of the Court. JAQUITH, Judge, filed a dissenting

opinion.

ALLEN, Judge: Appellant Louis R. Frantzis served the Nation honorably in the United

States Army from October 1979 to October 1982.1 In this appeal, which is timely and over which

we have jurisdiction,2 he contests a September 11, 2019, Board of Veterans' Appeals decision that

denied entitlement to (1) a compensable disability rating for service-connected tension headaches

effective from October 15, 2009, to February 10, 2010, and a disability rating greater than 10%

effective from February 11, 2010, to November 12, 2014; and (2) an effective date before October

15, 2009, for his service-connected tension headaches.3 This matter was submitted to a panel of

the Court principally to address whether a claimant proceeding under the Veterans Appeals

1

Record (R.) at 3114.

2

See 38 U.S.C. §§ 7252(a), 7266(a).

3

R. at 7-14.

Improvement and Modernization Act of 2017 (AMA)4 is entitled to an opportunity for a Board

hearing before the Board member who will ultimately decide his or her administrative appeal.5

We briefly preview what we decide: The Court holds that nothing in the AMA or its

implementing regulations mandates that the Board member conducting a claimant's Board hearing

must ultimately decide the appeal. While there was such a requirement in place under the Legacy

Appeals System, when Congress enacted the AMA as the successor to the Legacy Appeals System,

Congress removed the statutory language that required the same Board member who conducted a

hearing to also participate in the appeal's final determination. Additionally, there is nothing in VA's

implementing regulations that creates the purported right appellant seeks to have the Court

vindicate. Given that nothing in the relevant statutes or regulations dictates that the Board member

who presides at a hearing must render the Board's decision, appellant can only prevail if some

other principle (such as the fair process doctrine) imposes that requirement. But we decline to

consider whether there is such an extrastatutory or extraregulatory source of the supposed

requirement that appellant advances because he did not make such an argument until well into the

appeal.

We have also considered appellant's subsidiary argument that the Board ignored both his

and his wife's hearing testimony concerning the prostrating nature of appellant's headaches. We

reject the contention because it is clear that the Board did not ignore this evidence. Rather, the

Board performed its duty as factfinder when it determined that the statements were outweighed by

other record evidence.

Accordingly, having rejected all of appellant's arguments that he put forth in this appeal,

we will affirm the September 2019 Board decision.

4

115 Pub. L. No. 55, 131 Stat. 1105 (Aug. 23, 2017).

5

The Court thanks the students, faculty, and staff at the University of Florida (UF) Levin College of Law for their

flexibility regarding oral argument. We were supposed to have held argument at UF law on April 14, 2022. At the last

moment, we were unable to do so. The Court looks forward to traveling to UF for argument soon. And we also thank

counsel for both parties for their flexibility concerning the last-minute changes to the argument schedule.

2

I. FACTS AND PROCEDURAL HISTORY

In October 2009, appellant sought service connection for several conditions, including

headaches.6 A November 2009 rating decision denied his claims, and the regional office (RO)

continued those denials in an August 2010 Statement of the Case.7 Appellant appealed the decision

to the Board and requested a hearing.8 At a July 2013 Board hearing, appellant testified that his

headaches were caused by his service when he was kicked by another soldier.9 In particular, he

recounted that he was kicked in the chest by a soldier, which caused him to be lifted into the air,

and that he then hit the back of his head on a concrete slab.10 Appellant stated that he had serious

headaches that affected his vision as a result of the in-service incident.11 The Board eventually

remanded appellant's service-connection claim for headaches for further development.12

In August 2014, the RO granted appellant service connection for headaches, assigning a

noncompensable disability rating.13 Appellant timely disagreed with the decision, and his claim

has been in an appellate status since.14 Through the course of his appeal, VA revised appellant's

evaluations for his service-connected headaches to the following: 0% effective from October 15,

2009, to February 10, 2010; 10% from February 11, 2010, to November 12, 2014; and 50%

beginning November 13, 2014.15

In June 2018, appellant opted into the Rapid Appeals Modernization Program (RAMP),

converting his claim to one pursued under the AMA.16 Through a Higher Level Review conducted

under the AMA process, VA issued a rating decision in September 2018 (via appellant's RAMP

6

R. at 3098.

7

R. at 3015-16, 2938-63.

8

R. at 2780. The July 2013 Board hearing was conducted by Board member George Guido. Given the procedural

history of appellant's appeal, which, as we will discuss, includes the conversion of his appeal from the Legacy System

to one under the AMA, appellant does not take issue with the July 2013 hearing. See Appellant's Brief (Br.) at 6-13.

We will similarly limit our discussion to the later hearing appellant had before the Board.

9

R. at 2780.

10

R. at 2780, 2782.

11

R. at 2783-84.

12

R. at 2736-38.

13

R. at 2479-94.

14

R. at 2476-77.

15

R. at 2412-33.

16

R. at 87-98.

3

election) that continued appellant's assigned disability ratings.17 Appellant timely disagreed with

the decision and appealed to the Board, requesting a hearing with a Board member.18

On May 6, 2019, appellant and his wife testified at a Board hearing that was conducted by

Board member James Reinhart. 19 At the hearing, appellant and his wife testified that he

experiences prostrating headaches.20 His wife also testified that around 2013 appellant's headaches

began to affect his ability to work.21

On September 11, 2019, Board member Theresa Catino issued the decision currently on

appeal.22 The decision noted that appellant "testified at a videoconference hearing before a [Board

member] in May 2019 and a transcript of that hearing has been associated with the claims file,"

and that appellant testified at the July 2013 Board hearing. 23 The decision acknowledged the

testimony that "the severity of [appellant's] headaches [have] been characteristic of prostrating

attacks since 2009," but the Board found that "the evidence does not show that [appellant's]

headaches were productive of prostrating attacks . . . or resulted in extreme exhaustion or

powerlessness." 24 The Board noted appellant's VA treatment records and his April 2014

examination that "indicated that his headaches were of less severity and contemporaneously

documented his symptoms and the severity of his headaches." 25 Accordingly, the Board

determined that the lay assertions of prostrating attacks were outweighed by other record

evidence.26

17

R. at 91-93.

18

R. at 82-85.

19

R. at 44-67.

20

R. at 51-59.

21

R. at 61.

22

R. at 7-14.

23

R. at 9, 11.

24

R. at 12.

25

R. at 12-13.

26

R. at 13.

4

II. PARTIES' ARGUMENTS

Appellant contends that 38 U.S.C. § 7102 requires that the same Board member who

conducts a hearing must also issue a decision in the appeal. Appellant points to the portion of the

statute that states: "A member or panel assigned a proceeding shall make a determination thereon

. . . ."27 In particular, he argues that the statute's use of the word "shall" in the provision indicates

Congress's intent to require the same Board member who conducts a hearing to also issue the

appeal's decision.28

Appellant further argues that the Board failed to consider favorable evidence when it

determined that appellant's headaches were not productive of prostrating attacks. Alternatively,

appellant contends that the Board did not provide adequate reasons or bases for its decision in

terms of the evidence it addressed. Specifically, he asserts that the Board failed to adequately

discuss his and his wife's testimony about the onset, worsening, and prostrating nature of his

headaches.

The Secretary responds that there is no requirement under the AMA that the same Board

member who presides at a hearing also issue the decision in an appeal. Specifically, the Secretary

highlights that section 7107 is the relevant statutory authority because it governs Board hearings—

unlike section 7102, which concerns the assignment of appeals. The Secretary points out that when

Congress enacted the AMA it expressly removed the requirement under section 7107 in the Legacy

Appeals System that the Board member who presides at a hearing must participate in making the

final determination of the claim. Additionally, the Secretary points to the pertinent regulatory

authority in which VA has expressly retained the requirement for only Legacy appeals.29

Further, the Secretary argues that the Board did not err when it determined that appellant's

headaches were not productive of prostrating attacks. The Secretary contends that the Board

considered appellant's and his wife's testimony but ultimately assigned that testimony less

probative weight than the contemporaneous medical evidence.

27

Appellant's Br. at 6-7 (citing 38 U.S.C. § 7102(a)).

28

Id. at 7.

29

Secretary's Br. at 7 (citing 38 C.F.R. §§ 20.604, 3.2400(b)).

5

III. ANALYSIS

A. Under the AMA, a Board member who conducts a Board hearing

is not required to decide the appeal.

Appellant's principal argument is that he has a right to a hearing before the Board member

who will ultimately issue a decision in his appeal. He grounds his argument on the statutes that

control appeals under the AMA. So, we must review those statutory provisions, and the regulations

associated with them, to determine whether appellant is correct. As we will explain, we conclude

that the pertinent statutory and regulatory authority does not require the Board member conducting

a Board hearing to ultimately issue the decision in the appeal.

We begin with some context about what Congress did when it enacted the AMA. As an

initial matter, we highlight that Congress did not replace the existing administrative appeals

process—the Legacy process—when it created the AMA.30 A claimant was in the Legacy system

if the initial decision on a claim was rendered before February 19, 2019, and, correspondingly,

under the AMA when the initial decision on the claim was rendered on or after February 19,

2019.31 But the line Congress drew was not entirely immune from a claimant's choice about the

system in which he or she would proceed. After Congress enacted the AMA, VA, acting pursuant

to congressional authorization, provided claimants in the Legacy appeals system the opportunity

to opt in to the RAMP.32 Upon opting in to the RAMP, a claimant's appeal would become subject

to the processes and authorities under the AMA.33 So, after opting in, the AMA (via the RAMP)

provides claimants with options to file (1) a request for a Higher-Level Review of their rating

decision, (2) a supplemental claim, or (3) a Notice of Disagreement (NOD) requesting direct Board

review.34 When appealing to the Board, a claimant has the options of (1) a direct review based on

the evidence before the agency of original jurisdiction, (2) an additional evidence docket in which

the claimant has the right to submit additional evidence within certain time parameters, or (3) a

hearing docket in which the claimant is afforded a hearing before a Board member and may also

30

See Mattox v. McDonough, 34 Vet.App. 61, 68 (2021).

31

Id. at 68-69.

32

See 115 Pub. L. No. 55, 131 Stat. 1105, 1120 ("The Secretary of Veterans Affairs may, under subsection (a)(1),

carry out a program to provide the option of an alternative appeals process.").

33

See id.

34

38 U.S.C. § 5104C(1); Andrews v. McDonough, 34 Vet.App. 151, 157 (2021).

6

submit evidence in certain prescribed periods.35 As previously mentioned, appellant opted in to

the RAMP in June 2018, therefore subjecting himself to the laws under the AMA.36 And he later

selected the hearing docket.37

With the AMA-Legacy context established, we return to the issue before us. Questions of

statutory interpretation are pure questions of law that the Court reviews de novo.38 We look to the

plain meaning of the statute, and when we find the plain meaning, our job is simply to apply it.39

"In determining the meaning of a statutory provision, 'we look first to its language, giving the

words used their ordinary meaning.'" 40 But context "inform[s] any statutory provision's plain

meaning."41 And, importantly, "in interpreting a statute a court should always turn first to one,

cardinal canon before all others . . . . [C]ourts must presume that a legislature says in a statute what

it means and means in a statute what it says there."42 With these principles in mind, we turn to the

questions before us.

1. 38 U.S.C. §§ 7102, 7107

As relevant to this appeal, two statutes are in play. Appellant relies on 38 U.S.C. § 7102(a)

to argue that the same Board member who conducts a Board hearing must also issue the decision

in the appeal. The Secretary argues that section 7102 does not control, and instead focuses on

section 7107. While the Court has not addressed these statutory provisions under the AMA, we

have considered the provisions as they existed in the context of the Legacy Appeals System in

Arneson v. Shinseki.43 Arneson's discussion provides useful context for our analysis. There, the

Court determined "that the pertinent statutes and implementing regulation regarding Board

35

See 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. § 20.202(b) (2021); Andrews, 34 Vet.App. at 157.

36

See R. at 87-98.

37

R. at 82-85.

38

See Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018); see also Casey v. Wilkie, 31 Vet.App. 260, 265

(2019).

39

Frederick v. Shinseki, 684 F.3d 1263, 1269 (Fed. Cir. 2012); see also Kisor v. Wilkie, __ U.S. __, 139 S. Ct. 2400,

2415, 204 L. Ed.2d 841 (2019); Artis v. District of Columbia, __ U.S. __, 138 S. Ct. 594, 603, 199 L. Ed.2d 473 (2018)

(quoting Moskal v. United States, 498 U.S. 103, 108 (1990)); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43 (1984).

40

Casey, 31 Vet.App. at 265.

41

Id.

42

Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253-54 (1992).

43

See Arneson, 24 Vet.App. at 382-83.

7

hearings entitle a claimant to an opportunity for a hearing before all the Board members who will

ultimately decide his appeal," and vacated the Board's decision because one member of the three

Board member panel had not participated in a Board hearing with the claimant.44 Notably, the

Court did not rely whatsoever on section 7102 in rendering the decision. 45 Rather, the Court

focused on section 7107 as it then existed.46 We explained that the "1994 statutory amendments

restructured [section 7102] and separated the provision regarding the assignment of Board

members from the provision regarding hearings."47 This created a statutory structure in which

section 7102 governed the assignment of cases to Board members and section 7107 governed

Board hearings.48 Significantly, the AMA did not change the statutory scheme we recognized in

Arneson. Section 7102 continues to concern the assignment of appeals and section 7107 continues

to address hearings.49 In fact, section 7107 retains its title: "Appeals: dockets; hearings."50

"'[T]he statutory scheme as a whole, the specific context in which [a] word or provision at

issue is used, and the broader context of the statute as a whole' all inform any statutory provision's

plain meaning."51 Therefore, we will begin our analysis with the statute that continues to govern

Board hearings: Section 7107. Before the passage of the AMA, section 7107(c) (2016) provided:

A hearing docket shall be maintained and formal recorded hearings shall be held

by such member or members of the Board as the Chairman may designate. Such

member or members designated by the Chairman to conduct the hearing shall,

except in the case of a reconsideration of a decision under section 7103 of this title,

participate in making the final determination of the claim.[52]

It was this statutory provision on which the Court put great weight in Arneson when it held

that the law at the time required all Board members who participated in rendering a decision must

44

Id. at 386. The two other Board members each conducted separate hearings with the claimant through the course of

his appeal. Id. at 380-81.

45

See id. at 382-89.

46

Id. at 383-86.

47

Id. at 384.

48

Id.

49

See 38 U.S.C. §§ 7102, 7107 (2021).

50

38 U.S.C. § 7107.

51

See Casey, 31 Vet.App. at 265 (quoting Hornick v. Shinseki, 24 Vet.App. 50, 52 (2010)).

52

38 U.S.C. § 7107(c) (2016).

8

also have been involved in a Board hearing afforded to appellant.53 Congress significantly revised

this section when it enacted the AMA. Notably, Congress removed the language from section 7107

that required the Board member who conducted a Board hearing to "participate in making the final

determination of the claim." 54 The post-AMA version of section 7107(c) provides for the

"[m]anner and scheduling of hearings for cases on a docket that may include a hearing." The

section no longer requires that the Board member conducting a hearing must participate in the final

determination.55 Indeed, that requirement appears nowhere in the statute. In other words, Congress

did not merely move the language around when it enacted the AMA; it deleted it entirely.

We find the removal of this statutory language in section 7107(c) highly significant. First,

"Congress is presumed to know of existing laws and regulations when it enacts new legislation."56

Therefore, we can presume that Congress understood the nature of our Arneson holding that

interpreted the language of pre-AMA section 7107(c)—in addition to the pertinent regulation at

the time—to require the Board member who conducted a hearing to also decide the appeal.57 So

it's reasonable to say that Congress knew this was the law and intended to remove the requirement

when it amended section 7107 and omitted that critical language.

Second, even if we don't employ the presumption about Congress knowing the law when

it acts and we say that Congress did not know about Arneson, our conclusion remains the same.

Congress still consciously elected to remove the requirement that a Board member who conducts

a hearing must "participate in making the final determination of the claim."58 That language was

plain, nontechnical, and easy to understand. "When Congress amends legislation, courts must

presume it intends the change to have real and substantial effect." 59 Appellant's argument

essentially asks us to ignore Congress's amendment to section 7107 and to give no effect

whatsoever to the removal of the language requiring the Board member conducting a hearing to

53

Arneson, 24 Vet.App. at 383-85.

54

See 38 U.S.C. § 7107(c) (2017).

55

38 U.S.C. § 7107(c) (2017).

56

Beaudette v. McDonough, 34 Vet.App. 95, 103 (2021) (citing Cal. Indus. Prods., Inc. v. United States, 436 F.3d

1341, 1354 (Fed. Cir. 2006)).

57

See Arneson, 24 Vet.App. at 386.

58

See 38 U.S.C. § 7107(c) (2017). Compare id., with 38 U.S.C. § 7107(c) (2021).

59

Ross v. Blake, 578 U.S. 632, 641-42 (2016) (cleaned up).

9

also participate in the final determination. That is not our job. Courts do not re-insert statutory

provisions that Congress has removed. Stated in the affirmative, our task is to give effect to statutes

as Congress has written them.60 It is clear from the plain language of section 7107 that it no longer

requires the Board member who conducts a hearing to also decide the claim. Indeed, Congress's

removal of the statutory language is a significant indication of its intent to no longer maintain such

a requirement under the AMA.

But that does not end our inquiry because appellant contends that section 7102 contains

such a requirement. We do not agree. Section 7102(a) provides:

A proceeding instituted before the Board may be assigned to an individual member

of the Board or to a panel of not less than three members of the Board. A member

or panel assigned a proceeding shall make a determination thereon, including any

motion filed in connection therewith. The member or panel, as the case may be,

shall make a report under section 7104(d) of this title on any such determination,

which report shall constitute the final disposition of the proceeding by the member

or panel.[61]

Appellant points to that portion of the statute that states that "[a] member or panel assigned a

proceeding shall make a determination thereon," and puts great emphasis on Congress's use of the

word "shall."62 Appellant is certainly correct that "shall" is generally a mandatory term.63 But that

is neither here nor there. The use of the mandatory term "shall" is irrelevant to appellant's argument

because section 7102 does not govern Board hearings; the plain language of the statute just does

not speak to the issue at hand.

Section 7102 governs the assignment of cases to Board members; it does not govern Board

hearings. As we explained, Arneson delineates the respective functions of sections 7102 and

7107.64 In Arneson, we unequivocally found that section 7102 does not govern Board hearings and

we did not rely on section 7102 to answer a question similar to the one before us today.65 To be

60

See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476 (1992) (noting "the basic and unexceptional rule

that courts must give effect to the clear meaning of statutes as written").

61

38 U.S.C. § 7102(a) (2021).

62

Appellant's Br. at 6-7.

63

See Quinn v. Wilkie, 31 Vet.App. 284, 291 (2019) (citing Kingdomware Techs., Inc. v. United States, __ U.S. __,

136 S. Ct. 1969, 1977, 195 L. Ed.2d 334 (2016)).

64

See Arneson, 24 Vet.App. at 384.

65

Id.

10

sure, the AMA wrought many changes to VA's administrative appeals process. But Congress did

not change the respective focuses of sections 7102 and 7107.66 We see no reason to depart from

Arneson's interpretation of the statute concerning the matters to which sections 7102 and 7107

speak and appellant has given us none.67

Appellant points out that Congress did not amend section 7102 when it enacted the AMA

as support for his argument that section 7102 requires the Board member conducting a hearing to

also decide the appeal.68 We agree that this fact is important, but we think it cuts in precisely the

opposite direction. As appellant pointed out, the language that he relies on in section 7102 is the

same language that appeared in the statute when the Court decided Arneson. 69 But, again, in

Arneson we found that section 7102 did not govern the issue concerning hearings—that was

section 7107, something Congress did change.70 So, appellant essentially asks the Court to find

statutory language dispositive today that we previously found irrelevant when deciding a nearly

identical question. Viewed differently, Congress is well aware how to include a requirement that

the Board member conducting a hearing must also participate in the decision. We know that is the

case because Congress did so in connection with Legacy appeals in the pre-AMA version of

section 7107.71 In addition, before 1994, Congress actually used section 7102 to do what appellant

claims it does today. Before 1994, section 7102 required that "formal recorded hearings shall be

held by such member or members as the Chairman may designate, the member or members being

66

The dissent posits that the "'refocusing' of 38 U.S.C. § 7107 deleted the codification of the veteran's right to a hearing

in section 7107(b)," and if our "construction of these statutes takes hold, the veteran's right to a hearing is in peril."

See post at note 186. To be clear, our decision today does not offer any opinion as to how the revisions of section 7107

affect an appellant's right to a hearing. While the time may come to make such a determination, it is not today.

67

As our dissenting colleague points out, Arneson determined that "the Board violated 38 U.S.C. §§ 7102, 7107, and

38 C.F.R. § 20.707." Arneson, 24 Vet.App. at 386. Importantly, the Court did not rely on any specific language in

section 7102 to render its holding. As we do here, Arneson considered section 7102 together with section 7107 to

determine that the two sections govern different topics. See Arneson, 24 Vet.App. at 384. The only specific language

of the post-1994 section 7102 that the Court mentioned was the portion of section 7102(a) that "allows an appeal to

'be assigned to an individual member of the Board or to a panel of not less than three members of the Board.'" Id. at

384-85 (emphasis omitted) (quoting 38 U.S.C. § 7102(a)). Arneson's ultimate determination concerning the statutory

scheme was that Congress had not directly spoken to "the question of whether a claimant is entitled to a hearing before

all the Board members assigned to decide his appeal." Id. at 385. In sum, our analysis of section 7102 today is fully

consistent with the Court's views when we decided Arneson: section 7102 does not govern Board hearings.

68

Appellant's Br. at 7-8; Reply Br. at 1-5.

69

See Reply Br. at 2. Compare 38 U.S.C. § 7107 (2016), with 38 U.S.C. § 7107 (2017).

70

See Arneson, 24 Vet.App. at 384.

71

38 U.S.C. § 7107(c) (2016).

11

of the section which will make final determination in the claim."72 Clearly Congress has been

familiar with this statutory requirement for years, and if we were deciding this appeal in 1993,

appellant's argument would be correct. But the year is 2022. There is just no escaping that in 1994

Congress moved the relevant statutory language from section 7102 to section 7107, and when

Congress enacted the AMA it removed the relevant statutory language entirely from section 7107

(and everywhere else in the title 38); we must give this exclusion the effect that Congress intended

because that is what courts do.73 Otherwise, we would be acting as little more than a follow-on

legislature, imposing our own requirements in place of those the elected Members of Congress

determined should be the law.

In sum, we hold that nothing in the statutory provisions Congress enacted as part of the

AMA requires that the Board member who conducts a hearing must also decide the appeal.74 And

to be clear, the converse is true as well; the statutes don't prohibit VA from allowing a different

Board member to decide the appeal than the one who conducted a hearing. Given the statutory

structure of sections 7102 and 7107, Congress's removal of the precise language in section 7107

that required the same Board member to decide an appeal when it enacted the AMA is highly

significant. The short story here is: Congress at one point mandated what appellant seeks the Court

to order here; Congress removed the requirement that provided for what appellant seeks; and that

means appellant cannot prevail on his statutory argument.75

72

38 U.S.C. § 7102(b) (1993).

73

See Ross, 578 U.S. at 641-42.

74

We note that we do not need to resort to the pro-veteran canon of construction because we find the statutes clear as

to the issue; in other words, we do not find the statutes ambiguous. See Sharp v. Shinseki, 23 Vet.App. 267, 275 (2009)

("In the face of statutory ambiguity . . . the Court applies the rule that 'interpretative doubt is to be resolved in the

veteran's favor.'") (quoting Brown v. Gardner, 513 U.S. 115, 118 (1994))).

75

Although not briefed by appellant, at one point during oral argument appellant commented that his position is

bolstered because a "hearing" is a "proceeding" within the meaning of section 7102. See Oral Argument (OA) at 13:35-

18:08, Frantzis v. McDonough, U.S. Vet. App. No. 20-5236 (oral argument held Apr. 14, 2022),

http://www.uscourts.cavc.gov/oral_arguments_audio.php. Putting aside that this comment is entirely inconsistent with

the statutory structure explained in Arneson, we find appellant's comment without merit. "Proceeding" is not defined

within title 38 of the U.S. Code, but appellant's interpretation is inconsistent with how "proceeding" is used in section

7102 and in other statutes. The first sentence of section 7102 states: "A proceeding instituted before the Board . . . ."

38 U.S.C. § 7102 (emphasis added). If, as appellant suggests, a "hearing" is a "proceeding," then that sentence can be

read to say, "a hearing instituted before the Board." That is almost nonsensical and inconsistent with other ways in

which Congress used this term. See 38 U.S.C. § 7104 (stating that the Board's decision will be based "on the entire

record in the proceeding and upon consideration of all evidence and material of record and applicable provisions of

law and regulation"); 38 U.S.C. § 7105 (governing when appellate review to the Board is initiated by the "[f]iling of

appeal"; read in context, "appeal" is referring to all the acts and events that will occur between the initiation of appellate

12

2. VA's implementing regulations, 38 C.F.R. §§ 20.604, 20.706 (2021),

do not assist appellant.

We briefly consider VA's implementation of the AMA to complete our exploration of the

issue on appeal. After all, Congress did not bar VA from imposing the requirement appellant

advances here, so, in theory, appellant could prevail if VA determined that it would have the same

Board member conduct a hearing and issue a decision in an appeal.76 But it has not done so.

The Secretary has promulgated separate regulatory provisions governing Board hearings

under the Legacy Appeals System and those under the AMA.77 For Legacy appeals, 38 C.F.R. §

20.604 (2021) 78 provides that "[t]he Member or Members who conduct the hearing shall

participate in making the final determination of the claim."79 Under the general rules for Board

hearings, which apply to AMA appeals, 38 C.F.R. § 20.706 (2021)80 provides that "[h]earings will

be conducted by a Member or panel of Members of the Board. Where a proceeding has been

assigned to a panel, the Chairman, or the Chairman's designee, shall designate one of the Members

as the presiding Member." The "right" appellant seeks is clearly mandated under the Legacy appeal

system, but that does not help because his appeal is proceeding under the AMA. There simply is

no regulation that provides appellant with a right to have the same Board member who presides at

a hearing render a decision in his appeal.

3. The Fair Process Doctrine

Up until now, we've explained that appellant's argument that he is entitled to have the same

Board member who presided at his hearing also decide his appeal finds no support in either the

applicable statutes or VA's implementing regulations. So, for appellant to prevail on his argument,

there would have to be some other source of law that requires it. However, appellant focused his

arguments entirely on his flawed understanding of section 7102.

review and the final determination).

76

See Chevron, 467 U.S. at 844-45. To be clear, appellant has not argued that the statutes are ambiguous or that VA's

implementing regulations provide him with the right he seeks. See Appellant's Br. at 5-13; Reply Br. at 1-5. Rather,

we include the discussion to round out our analysis on the issue.

77

See 38 C.F.R. §§ 20.600-20.605, 20.700-20.715 (2021). AMA claims fall under the general rules for Board hearings.

78

The regulation is titled: "Designation of Member or Members to conduct the hearing in a legacy appeal."

79

38 C.F.R. § 20.604 (2021).

80

The regulation is titled: "Designation of Member or Members to conduct the hearing."

13

At oral argument, largely in response to a pre-argument order the Court issued, appellant

briefly discussed the "fair process doctrine."81 Generally, the Court describes the "fair process

doctrine" as an obligation placed on VA to provide claimants fair process in the adjudication of

their claims.82 This may include processes not required by statute or regulation if the principle of

fair process requires an additional process because "it is implicitly required when viewed against

[the] underlying concepts of procedural regularity and basic fair play of the VA benefits

adjudicatory system." 83 We decline to consider how the fair process doctrine may apply with

respect to situations in which different Board members conduct a hearing and render a decision in

the appeal. Courts generally should not advance arguments for represented parties when such

parties have declined to do so themselves.84 More directly: courts should not be advocates. Not

only do appellant's briefs fail to cite Arneson, they don't even mention fair process.85 "[O]ur system

'is designed around the premise that [parties represented by competent counsel] know what is best

for them, and are responsible for advancing the facts and argument entitling them to relief.'"86

Courts "'do not, or should not, sally forth each day looking for wrongs to right. [They] wait for

cases to come to [them], and when [cases arise, courts] normally decide only questions presented

by the parties.'"87 Therefore, we will not reach out to decide this appeal based on a ground appellant

did not raise. We leave for another day an exploration of the fair process doctrine's role, if any, on

the issue before the Court.88

81

See OA at 9:25-:39, 24:12-:45, 34:38-40:40.

82

Smith v. Wilkie, 32 Vet.App. 332, 337 (2020).

83

Id. (internal quotations omitted).

84

See United States v. Sineneng-Smith, __ U.S. __, 140 S. Ct. 1575, 1581 (2020); Sellers v. Shinseki, 25 Vet.App.

265, 274-75 (2012).

85

See Appellant's Br. at 5-13; Reply Br. at 1-5.

86

Sineneng-Smith, 140 S. Ct. at 1579 (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (Scalia, J., concurring

in part and concurring in the judgment)).

87

Id. The dissent asks the Court to do precisely what the Supreme Court has cautioned against: step into the shoes of

the advocate and advance a theory not raised by appellant. See Sineneng-Smith, 140 S. Ct. at 1579. Even considering

the Secretary's citation to Arneson, appellant still chose not to respond to this point in his reply brief. See Reply Br. at

1-5. Proceedings before the Court are adversarial in nature, and even in our pro-veteran system appellants must raise

some semblance of an argument.

88

We do note that it sometime appeared at oral argument that the parties viewed the matter as binary. That is, the fair

process doctrine either always required the same Board member to preside at a hearing and decide an appeal, or it

never did. While we have determined it would be inappropriate to decide this appeal on the basis of an argument

appellant did not raise, we observe that we doubt the doctrine would apply in such an all-or-nothing way. So, perhaps

14

B. The Board considered the lay statements of both appellant and his wife.

Appellant focuses his argument on appeal principally on the contention that the Board erred

because the Board member who conducted his AMA hearing did not also render the decision on

his appeal. However, appellant also asserts that the Board erred when it denied him a higher

disability rating because the Board did not consider statements about his prostrating headaches

that both he and his wife made during the May 2019 Board hearing. 89 He also reframes that

argument by maintaining that the Board did not adequately explain why it failed to consider those

statements.90 At the outset, we underscore that appellant bears the burden of persuading the Court

that the Board has erred.91 Here, appellant's argument is incredibly underdeveloped, meaning that,

in effect, he has not carried his burden of showing that the Board clearly erred in its decision or

failed to sufficiently explain its reasoning.

The Board's decision regarding the degree of disability under the rating schedule is a factual

finding the Court reviews for clear error.92 For all its findings on a material issue of fact and law,

the Board must support its decision with an adequate statement of reasons or bases that enables a

claimant to understand the precise bases for the Board's decision and facilities review in this

Court.93 To comply with its requirement to provide an adequate statement of reasons or bases, "the

Board must analyze the credibility and probative value of the evidence, account for the evidence

the doctrine would have some purchase in a situation in which a Board member deciding a case made negative

credibility determinations about a witness appearing at a hearing when the Board member did not preside at the

hearing. Of course, that's not what happened here. See R. at 12-13 (finding that appellant's and his wife's lay assertions

were outweighed by other evidence of record and not making an adverse credibility finding). In any event, in an

appropriate case, we suspect the analysis of the impact of the fair process doctrine on the question before us would be

more nuanced than it appeared during oral argument.

89

See Appellant's Br. at 9-13.

90

See id.

91

Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An appellant bears the burden of persuasion on appeals to

this Court to show that such reliance was in error."), aff'd, 232 F.3d 908 (Fed. Cir. 2000).

92

38 U.S.C. § 7261(a)(4); Dyment v. West, 13 Vet.App. 141, 144 (1999); see also Tedesco v. Wilkie, 31 Vet.App. 360,

363 (2019); Prokarym v. McDonald, 27 Vet.App. 307, 312 (2015).

93

38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).

15

it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material

evidence favorable to the claimant."94 If the Board fails to do so, remand is appropriate.95

Appellant contends that the Board did not consider the statements both he and his wife

made during their testimony at the May 2019 Board hearing that appellant's headaches were

prostrating in nature, and also that the Board decision did not "explain why the testimony . . . was

not considered evidence." 96 Appellant is simply wrong when he states that the Board did not

consider these statements as evidence. The Board considered these statements just as it did other

evidence in the record.97 Appellant may not agree with how the Board addressed the statements,

but that disagreement does not mean that the Board did not consider the statements as evidence.

The Board performed its role as factfinder when it considered the statements from appellant and

his wife at the hearing (statements that have evidentiary weight98) and explained that they are

outweighed by other evidence of record.99 We need not address the nature of the Board's weighing

of the evidence because appellant has not challenged that aspect of the Board's decision.100 Just as

we declined to make appellant's argument for him in connection with the Board hearing issue, we

will not do so here. Therefore, because the Board properly considered the lay statements from

appellant and his wife as evidence, we reject appellant's arguments on this issue.

IV. CONCLUSION

After consideration of the parties' briefs, oral argument, the governing law, and the record,

the Court AFFIRMS the September 11, 2019, Board decision.

94

Kahana v. Shinseki, 24 Vet.App. 428, 433 (2011) (citing Caluza v. Brown, 7 Vet.App. 498, 506 (1995)); Gilbert, 1

Vet.App. at 56-57.

95

Tucker v. West, 11 Vet.App. 369, 374 (1998).

96

Appellant's Br. at 10.

97

See R. at 12, 13.

98

See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006).

99

R. at 13 ("Accordingly, the Board finds that the lay assertions of prostrating attacks are outweighed by the other

evidence of record.").

100

See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc). On a similar note, the dissent determined

that the Board member who decided appellant's appeal implicitly found that appellant and his wife were not credible.

If we were to consider such a claim it would again require the Court to step into the shoes of appellant and advance a

theory that was not presented on appeal. Here, appellant does not even challenge the Board's weighing of the evidence,

let alone an alleged implicit credibility finding.

16

JAQUITH, Judge, dissenting: The Board denied Army veteran Louis R. Frantzis fair process

in the adjudication of his claim. Because the majority leaves that injustice intact, I respectfully

dissent. Contrary to the majority's conclusion, the Court need not, should not, even must not fail

to fulfill its responsibility to review this case for fair process.

A. Salient Facts and Procedural History

Mr. Frantzis's headache disability originated in an unfortunate active service event: another

soldier kicked him in the chest, lifting him up in the air. When Mr. Frantzis landed, the back of his

head crashed onto a concrete slab and he woke up in a hospital on base with a concussion.101 Mr.

Frantzis filed a disability claim in October 2009 and it was denied the next month based on the

lack of service treatment records.102 Mr. Frantzis appealed and requested a Board hearing.103 He

testified under oath at two Board hearings: one on July 8, 2013, before Board member George E.

Guido, Jr.,104 and the other on May 6, 2019, before Board member James G. Reinhart.105 Both

hearings were conducted via videoconference, with the Board member in Washington, D.C., and

the veteran in Muskogee, Oklahoma, with his wife and a representative who was not an attorney.106

At the first hearing, Mr. Frantzis testified that he had experienced episodes of "very scary"

head pain since the attack in the barracks—sometimes causing him to lose vision and sometimes

causing his head to go numb.107 The veteran's wife testified that the veteran's headaches caused

him to double over in pain and wrap his arms around his head, and the veteran's representative

added that these scary painful events happen "multiple times a week, sometimes several in a

day."108 The veteran's condition was such that he said the light in the hearing room was bothering

him. 109 Following the first hearing, Board member Guido remanded the veteran's headache

101

R. at 2780-82.

102

R. at 3098, 3015-18.

103

R. at 2934.

104

R. at 2778-88.

105

R. at 44-67.

106

R. at 44, 2778.

107

R. at 2782-84.

108

Id.

109

R. at 2785.

17

disability claim because the veteran's file did not contain service personnel and treatment records

and the veteran had not been afforded a VA examination regarding whether his headaches

constituted a disability related to service.110

In August 2014, Mr. Frantzis was granted service connection for his headaches, effective

October 2009, but with a noncompensable (0%) evaluation because no prostrating attacks were

noted by the compensation and pension (C&P) examiner in April 2014.111 In September 2014, Mr.

Frantzis submitted his appeal, saying: "I have over 3 prostrating attacks every month. The pain in

my head is so significant that I cannot function and have to l[ie] in a dark room for extended

periods of time."112 Less than 2 months later (in November 2014), a doctor examined the veteran

and completed a disability benefits questionnaire. The doctor noted that the veteran had daily

headaches with 2 to 3 flare-ups that lasted hours and reached a pain level of 8 to 10 out of 10; the

veteran's headaches necessitated his withdrawal to a dark, quiet place and interfered with his ability

to function; the veteran's symptoms included nausea, vomiting, and sensitivity to light and sound;

and the veteran experienced very frequent prostrating and prolonged attacks of migraine headache

pain and nonmigraine headache pain—more frequently than once per month (the highest category

on the form).113

In March 2015, VA increased the veteran's headache disability rating to 10%, effective

February 2010, and awarded a 50% disability effective on the date of the doctor's November 2014

examination. 114 Mr. Frantzis appealed the effective-date and rating determinations for his

condition before November 2014115 and asked for a Board hearing.116

At his May 6, 2019 hearing, the veteran again spoke of the lights causing a headache

affecting his testimony.117 Board member Reinhart made clear that in deciding the veteran's case,

he would consider only the symptoms the veteran experienced during the timeframe covered by

110

R. at 2736-37.

111

R. at 2490-91.

112

R. at 2477.

113

R. at 2463-65.

114

R. at 2432-33.

115

R. at 2317, 2406-07.

116

R. at 83.

117

R. at 46-47.

18

the disputed rating decisions, not his current symptoms.118 The veteran testified that in 2009 his

headaches worsened and occurred a minimum of three to four times per week.119 Mrs. Frantzis

interjected that the veteran was having prostrating headaches every day; the veteran agreed that

they were prostrating, saying: "I had headaches where I had to put my head under a pillow when I

never heard of that before."120 Board member Reinhart explained that "prostrating headaches" are

"very frequent, and they cause economic problems," and asked when the veteran's headaches were

"so bad that they forced [him] to l[ie] down in bed, that they interfered with [his] ability to make

money and so forth."121 The veteran testified that his headaches became that severe in 1986.122

When asked whether his headaches in 2009 were as bad as they were in 2014, the veteran said that

in 2009 they were bad enough that he had to isolate himself in a locked room with the lights off.123

Mrs. Frantzis testified that from 2009-2014 the veteran was experiencing daily headaches that were

prostrating "at least once a week, sometimes more," and his headaches became so severe that he

was unable to work in 2015.124 She said that before 2015 the veteran would come home with

headaches and "shut down."125 Mrs. Frantzis further testified that before 2014, the veteran "had

headaches every day "and sometimes he'd l[ie] down for [] half an hour," but "at least once a week

he was down and in the dark room for several hours to try to manage the pain."126

On September 11, 2019, Board member Theresa M. Catino denied the veteran's appeal.127

The Board gave the veteran no prior notice that a different Board member would decide the

veteran's case, no acknowledgement that there was a switch, and no explanation of why the switch

was made.

118

R. at 49-50.

119

R. at 51.

120

R. at 50-51.

121

R. at 56.

122

Id.

123

R. at 57.

124

R. at 58-59.

125

R. at 60.

126

R. at 63.

127

R. 9-14.

19

B. Remand is Required to Afford the Veteran His Right to Fair Process

The principle of fair process is deeply rooted in our national identity. Establishing justice

follows only "forming a more perfect union" in the description of the reasons for ordaining the

Constitution that gave life to the United States of America. Days after signing into law the

Judiciary Act of 1789, which created the Federal court system (beyond the U.S. Supreme Court),

President Washington wrote that "the due administration of justice is the firmest pillar of good

government."128 The Bill of Rights prohibits deprivation of property without due process of law.129

And a veteran's "entitlement to benefits is a property interest protected by the Due Process Clause

of the Fifth Amendment to the United States Constitution." 130 Such constitutional protection

means that "[a] fundamentally fair adjudication . . . is constitutionally required in all [veterans

claims] cases," and that veterans have a "due process right to a fair hearing" on their disability

claims.131

In addition to protecting veterans' constitutional due process rights, 132 "[t]he Board is

obligated to ensure that it provides [claimants] fair process in the adjudication of their claims."133

The right to fair process also applies "during VA's solicitation, gathering, and development of

evidence."134

Our Court first explicitly recognized veterans' right to fair process in Austin v. Brown135in

1994. Holding "that basic fair play requires that evidence be procured by the agency in an

impartial, unbiased, and neutral manner,"136 the Austin Court embraced the fair process principle

128

Letter from George Washington to Edmund Randolph (Sept. 28, 1789), available at

https://www.loc.gov/resource/mgw2.022/?sp=177&st=text.

129

U.S. CONST. amend. V.

130

Cushman v. Shinseki, 576 F.3d 1290, 1298 (Fed. Cir. 2009).

131

Id. at 1299-1300.

132

See Noah v. McDonald, 28 Vet.App. 120, 133-34 (2016) (vacating a Board decision based on a due process

violation).

133

Smith v. Wilkie, 32 Vet.App. 332, 337 (2020); see Nohr v. McDonald, 27 Vet.App. 124, 135 n.5 (2014) ("[I]t is

well-established that the Board must ensure that it provides an appellant fair process in the adjudication of his claim.").

134

Bryant v. Wilkie, 33 Vet.App. 43, 47 (2020).

135

See 6 Vet.App. 547, 551 (1994).

136

Id. a 552.

20

it implicitly relied on in Thurber v. Brown,137 a decision it had issued the preceding year, and the

Austin Court seconded Thurber's citation of the Supreme Court's invocation of implicit

"underlying concepts of procedural regularity and basic fair play" in Gonzales v United States.138

In Thurber, the Court began its analysis with the requirement of the due process clause of the Fifth

Amendment of the U.S Constitution that an individual being deprived of a property interest

through Federal Government action must be provided with notice and an opportunity to be

heard.139 The Court then surveyed statutory and regulatory provisions in concluding that "[t]he

entire thrust of the VA's nonadversarial claims system is predicated upon a structure which

provides for notice and an opportunity to be heard at virtually every step in the process."140

Veterans' rights to fair process in the development and adjudication of their claims and

appeals extend beyond those guaranteed by the Fifth Amendment.141 The right to fair process

stems from the very "nature of the nonadversarial VA benefits adjudication system." 142 That

system "is strongly and uniquely pro-claimant."143 The system is strongly pro-claimant because it

is a core value of our Nation "to care for him who shall have borne the battle and for his widow

and his orphan"—as President Abraham Lincoln said in concluding his second inaugural

address. 144 That core value reflects national gratitude for the "the special sacrifices made by

veterans of military service"145 and sets the overriding purpose of veterans benefits laws.146

137

5 Vet.App. 119 (1993).

138

Austin, 6 Vet.App. at 551-52, (citing Thurber, 5 Vet.App. at 123 (quoting Gonzales, 348 U.S.407, 412 (1955)).

139

Thurber, 5 Vet.App. at 122.

140

Id.

141

See Bryant, 33 Vet.App.at 46-47 ("Appellants have a right to fair process in the development and adjudication of

their claims and appeals before VA," and that right "'is primarily based on the underlying concepts of the VA

adjudicatory scheme, not the U.S. Constitution.'"(quoting Prickett v. Nicholson, 20 Vet.App. 370, 382 (2006), aff'd

sub nom. Prickett v. Mansfield, 257 F. App'x 288 (Fed. Cir. 2007))); Anderson v. West, 12 Vet.App. 491, 497 (1999)

("[The] holding in Thurber was based on principles of 'fair process' and 'basic fair play' that the Court extracted from

a variety of sources, including the U.S. Constitution, but Thurber did not rely upon a constitutional basis for its

holdings as to the procedural protections owed to VA claimants.").

142

Bryant, 33 Vet.App.at 46.

143

Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998).

144

See Noah, 28 Vet.App. at 130 (citing Ribaudo v. Nicholson, 21 Vet.App. 137, 163 (2007) (en banc) (Schoelen, J.,

dissenting) (quoting President Lincoln)).

145

Johnson v. Robison, 415 U.S. 361, 381 n.15 (1974).

146

Barrera v. Gober, 122 F.3d 1030, 1039-40 (Fed. Cir. 1997) (Plager, J., concurring); see Sneed v. Shinseki, 737 F.3d

719, 728 (Fed. Cir. 2013) ("The veterans benefits scheme is . . . 'imbued with special beneficence from a grateful

21

As the Supreme Court has recognized, the system that Congress created for the

adjudication of veterans claims is dramatically more protective of veterans' rights than the

construct for ordinary civil litigation.147 In contrast with ordinary civil cases, the adjudication of

veterans claims is nonadversarial; "VA is charged with the responsibility of assisting veterans in

developing evidence that supports their claims, and in evaluating that evidence, the VA must give

the veteran the benefit of any doubt."148 The longstanding solicitude of Congress for veterans149 is

reflected in "laws that 'place a thumb on the scale in the veteran's favor in the course of

administrative and judicial review of VA decisions.'"150 The Court of Appeals for the Federal

Circuit has also observed that Congress reserved special treatment for veterans and equitable

principles apply strongly in veterans cases because "veterans risked both life and liberty in their

military service to this country."151 In sum, as our Court has declared: "The entire veterans claims

adjudication process reflects the clear congressional intent to create an Agency environment in

which VA is actually engaged in a continuing dialog with claimants in a paternalistic, collaborative

effort to provide every benefit to which the claimant is entitled." 152 The appellate process "is

designed to be a partnership between the appellant and the Agency," and "[t]hat partnership only

works if the Board allows an appellant to contribute to and meaningfully participate in the appellate

process."153

In this case, the Board failed to fulfill its obligation to uphold these principles and denied

the veteran notice154 and an opportunity to meaningfully participate in the appellate process. The

sovereign.'" (quoting Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J., concurring)); Gilbert v.

Derwinski, 1 Vet.App. 49, 54 (1991) (declaring that, in veterans benefits determinations, the benefit of the doubt goes

to veterans in in recognition of our debt to them). See generally United States v. Alvarez, 567 U.S. 709, 724 (2012)

("In periods of war and peace alike public recognition of valor and noble sacrifice by men and women in uniform

reinforces the pride and national resolve that the military relies upon to fulfill its mission.").

147

Henderson v. Shinseki, 562 U.S. 428, 440 (2011).

148

Id.

149

See United States v. Oregon, 366 U.S. 643, 647 (1961) ("The solicitude of Congress for veterans is of long

standing.").

150

Henderson, 562 U.S. at 440 (quoting Shinseki v. Sanders, 556 U.S. 396, 416 (2009) (Souter, J., dissenting)).

151

Sneed, 737 F.3d at 728.

152

Evans v. Shinseki, 25 Vet.App. 7, 16 (2011).

153

Bryant, 33 Vet.App.at 48.

154

The veteran learned of the switch in the Board decision by the substituted Board member. There was no reason

given for the substitution. Though not grounded in the special solicitude veterans receive for their service, sacrifice,

22

Court has held that fair process requires (1) notice of evidence the Board obtains after the RO

issues a Statement of the Case, and (2) an opportunity to respond to that evidence,155 including by

submitting additional evidence in rebuttal without having to show good cause to do so.156 Fair

process requires the Board to afford the veteran notice and an opportunity to be heard before

deciding a question not addressed by the RO, such as a question of the Board's jurisdiction.157 Fair

process requires VA to provide the veteran a copy of a medical examination report and other

evidence developed on remand and to afford the veteran an opportunity to respond to the evidence

before the Board considers and relies on it.158 Fair process prohibits the Board from relying on

undisclosed documents in deciding the merits of the veteran's claims.159 Fair process requires the

Board to set a deadline, provide notice of the deadline, and afford the veteran an opportunity to

submit evidence before adjudicating a claim when the Board has left the record open following a

hearing.160 Fair process requires that the veteran's surviving spouse be informed of the proper legal

basis for the reduction of DIC benefits and an opportunity to challenge that reduction.161 Fair

process requires the Board to (1) provide notice of the evidence and the reliance proposed to be

placed on it; (2) afford the claimant an opportunity to respond; and (3) consider and address the

claimant's response. 162 The system for the development and adjudication of veterans benefits

claims is so deeply imbued with fairness that irregular procedures such as those involved in

apportionment claims "evoke[] fair process concerns."163

and suffering, the federal Federal civil system substitutes judges only if the judge conducting a hearing is unable to

proceed, and then "the successor judge must, at a party's request, recall any witness whose testimony is material and

disputed and who is available to testify again without undue burden." FED. R. CIV. P. 63.

155

Thurber, 5 Vet.App. at 126.

156

Austin, 6 Vet.App. at 551. And " basic fair play requires that evidence be procured by the agency in an impartial,

unbiased, and neutral manner." Id. at 552. The Board cannot secure evidence "to support a predetermined outcome."

Id.

157

Bernard v. Brown, 4 Vet.App. 384, 394 (1993); Marsh v. West, 11 Vet.App. 468, 471-72 (1998).

158

Young v. Shinseki, 22 Vet.App. 461, 472 (2009); Newday v. Peake, 22 Vet.App. 262, 264-65 (2008).

159

Hood v. Shinseki, 23 Vet.App. 295, 302 n.3 (2009).

160

Haney v. Nicholson, 20 Vet.App. 301, 305-06 (2006).

161

Roberts v. McDonald, 27 Vet.App. 108, 112 (2014).

162

Nohr, 27 Vet.App. at 135 n.5 ("Inherent in the Board's duty to provide a claimant a reasonable opportunity to

respond to the newly acquired evidence is the countervailing duty to consider and address the claimant's response.").

163

Fuller v. McDonough, 35 Vet.App. 142, 158 (2022).

23

The Court's prior exposition of the foundational fair process principle and its grounding

(and expression) in the requirements of notice and a meaningful opportunity to be heard by a Board

member who considers and addresses the veterans response points pellucidly to the right result of

this appeal—a remand for Mr. Frantzis to be afforded fair process. And Arneson v. Shinseki164

both compels that conclusion and maps out the correct decision.

As in Arneson, Mr. Frantzis was never notified that a substitute "factfinder had been

assigned to adjudicate his appeal, and never given the opportunity provided by statute and

regulation to have a hearing before that decisionmaker." 165 In this case, as in Arneson, the

switcheroo (here from Board member Guido to Board member Reinhart to Board member Catino)

"gives an appearance of forum shopping" and "unfairness," regardless of any good faith basis for

changing the assignments.166 "In the claimant-friendly world of veterans benefits, 'the importance

of systemic fairness and the appearance of fairness carries great weight.'"167

However—again as in Arneson—"the perception of unfairness is not the only issue

here." 168 Changing Board members post-hearing—such that the decisionmaker is "assessing

credibility based on a second-hand conveyance or a review of a transcript—undermines the

claimant's ability to personally impress his credibility upon his factfinder[]." Moreover, "the right

to a hearing as a conduit for conveying one's credibility could be rendered meaningless" if the

credibility determination is made by a Board member who did not participate in the veteran's

hearing.169 Mr. Frantzis has a "right to be afforded the opportunity to be heard by [the Board

member] assigned to adjudicate his appeal."170

In conducting hearings and deciding veterans' cases, the Board "functions as a factfinder

in a manner similar to that of a trial court."171 So "the opportunity for a personal hearing before the

164

24 Vet.App. 379 (2011).

165

Id. at 387. Mr. Frantzis also received no notice or information indicating that his participation in RAMP meant that

the Board member conducting his hearing might not decide his case. R at 1598.

166

Id. at 387 n.2.

167

Id. at 387 (quoting Hodge, 155 F.3d at 1363).

168

Arneson, 24 Vet.App. at 387.

169

Id. at 387-88.

170

Id. at 388.

171

Cook v Snyder, 28 Vet.App. 330, 336 (2017).

24

Board is significant because it is the [veteran's] one opportunity to personally address [the Board

member] who will find facts, make credibility determinations, and ultimately render the final

Agency decision on his [or her] claim."172 The Board hearing is uniquely important because it

gives the veteran the ability to address and respond to any specific questions by the decisionmaker

and enables the Board member to size the veteran up—to assess the witness's demeanor, facial

expressions, eye contact, voice tone and inflection, gestures, and hesitation or readiness to answer

questions—all the nonverbal cues that help a listener decide whether a speaker is credible.173

As in Arneson, "[w]e cannot say how a hearing before [the] Board member[] assigned to

adjudicate his appeal would have affected the Board's determinations on credibility, probative

weight, and ultimately [the veteran's] claim."174 However, the assignment of Board member Catino

"to decide [the veteran's] administrative appeal, without providing an opportunity for a hearing,

deprived [the veteran] of an opportunity to meaningfully participate in the processing of his claim

in a way that could have altered the Board's credibility determinations."175 As in Arneson, remand

is warranted for the Board to afford Mr. Frantzis the opportunity for a hearing in front of his

decisionmaker. This case should be as clear cut as that.176

C. Proper Statutory Construction Does Not Upend Fair Process

The majority's statutory construction contentions are insufficient to upend the fair process

principles upon which the veterans benefits system is founded. The Court has already reconciled

fair process with the circumstances here: "[I]n situations where no particular procedural process is

required by statute or regulation, the principle of fair process may nonetheless require additional

process if it is implicitly required when 'viewed against [the] underlying concepts of procedural

regularity and basic fair play' of the VA benefits adjudicatory system." As previously detailed, Mr.

Frantzis's right to fair process included a right to a hearing before his Board decisionmaker.

172

Id. at 336-37.

173

See generally Quinn v. Wilkie, 31 Vet.App. 284, 292 (2019) (declaring that it is important that an adjudicator be

able to observe the demeanor of a veteran at a hearing).

174

Id.

175

Arneson,. 24 Vet.App. at 388-89.

176

Where the Board deprives a veteran of fair process, the Court need not reach the constitutional due process question.

Bryant, 33 Vet.App. at 46; Smith, 32 Vet.App. at 337 ("Because the Court agrees with [the veteran] that the Board

violated his right to fair process, it need not reach the Constitutional question of due process.").

25

Moreover, the majority opinion rests on a mistaken premise: that the Arneson Court "did

not rely whatsoever on section 7102 in rendering the decision."177 The Court's specific description

of its action says otherwise: "[W]e hold that the Board violated 38 U.S.C. §§ 7102, 7107, and 38

C.F.R. § 20.707."178 And the majority sees a separation of the provisions that Arneson does not

support. Instead, the Court considered sections 7102 and 7107 together.179 The Arneson Court

expressly faulted the Secretary for failing to consider "the import of section 7102(a) and its

interaction with all of section 7107."180 Judge Kasold, concurring in the result, was even more

firmly focused on the interplay of section 7102(a)'s requirement that the assigned Board member

"shall make a determination" on the claimant's appeal and the claimant's entitlement to a hearing:

Judge Kasold declared that "because a claimant's appeal cannot be adjudicated until he is afforded

the opportunity to be heard by the Board assigned to adjudicate his appeal, it follows that the

claimant has a right to be heard by the Board member or panel assigned to adjudicate his

administrative appeal."181 So the language of section 7102 was and is important, not irrelevant.182

The majority's mantra that "section 7102 does not govern Board hearings"183 misses the

mark. It is true that section 7102 does not prescribe the docketing, location, or manner of such

hearings, but section 7102 does govern something at least as important: the assignment of the

Board member who conducts the hearing and that Board member's responsibility.

The disappearance of section 7107's relevant provisions requires sharper attention to

section 7102. Effective in 2019, section 7107 no longer addresses the participation of Board

members in hearings. As currently constituted, section 7107 focuses on docketing. Section

7107(c) concerns the "manner and scheduling of hearings," but that is limited to determining

whether the hearing will be held at the Board's principal location or "by picture and voice

transmission" either at a VA facility, or, upon request by the appellant, at a location the appellant

177

See discussion ante p. 8.

178

Arneson, 24 Vet.App. at 386.

179

Id. at 383-85. Arneson did reject the Secretary's reliance on a prior version of section 7102 and a (confusingly

similarly named) case interpreting it, Arnesen v. Brown, 8 Vet.App. 432, 441 (1995), but not the version of 7102 still

applicable today.

180

Arneson, 24 Vet.App. at 384.

181

Id. at 390.

182

Cf. ante p. 11.

183

See discussion ante pp. 10, 11; ante note 67.

26

selects. Now the only statute that addresses the assignment of Board members—to conduct

hearings or otherwise—is section 7102. Section 7102(a) provides:

A proceeding instituted before the Board may be assigned to an individual member

of the Board or to a panel of not less than three members of the Board. A member

or panel assigned a proceeding shall make a determination thereon, including any

motion filed in connection therewith.

38 U.S.C. § 7102(a).

Notwithstanding the majority's disregard for it, section 7102's actual words support Judge

Kasold's construction in Arneson. When the intent of Congress is clear from statutory language,

that concludes our effort to interpret that language.184 Section 7102(a) expressly provides that a

Board "member . . . assigned a proceeding shall make a determination thereon."185 By statute and

regulation, "[e]very claimant has . . . the right to a hearing." 186 Among the Black's Law Dictionary

definitions of "proceeding" is "a hearing." 187 And the definitions of "hearing" in Black's Law

Dictionary encompass "[a]n administrative agency proceeding in which evidence is offered."188 In

addition, an adjudication hearing under administrative law is "[a]n agency proceeding in which a

person's rights and duties are decided after notice and an opportunity to be heard."189 In sum, the

very essence of a hearing is that it is a proceeding that affords the veteran an opportunity to present

information to a decisionmaker. The most that can be said is that a hearing is a part of the

proceeding on which the assigned Board member is obliged to make a determination under

7102(a). What happened in this case clearly violated section 7102(a). Board member Reinhart was

184

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409 (1993).

185

38 U.S.C. § 7102(a).

186

38 C.F.R. § 3.103(a) (2021). The "refocusing" of 38 U.S.C. § 7107 deleted the codification of the veteran's right to

a hearing in section 7107(b). But if we read the words carefully, as this dissent does with those of section 7102(a), we

still find a statutory right to a hearing in 38 U.S.C. §§ 7105(a) ("Each appellant will be accorded hearing and

representation rights pursuant to the provisions of this chapter and regulations of the Secretary.") and 7107(c)

(implying that a veteran who requests a hearing gets one). If the majority's construction of these statutes takes hold,

the veteran's right to a hearing is in peril.

187

Proceeding, BLACK'S LAW DICTIONARY 1437 (11th ed. 2019).

188

Hearing, BLACK'S LAW DICTIONARY 865 (11th ed. 2019).

189

Adjudication hearing, BLACK'S LAW DICTIONARY 865 (11th ed. 2019). Moreover, the verb "institute" means "[t]o

begin or start; commence." Institute, id. at 951. So there is nothing "nonsensical," see ante note 75, in noting that a

proceeding under section 7102 may be and at least encompasses a hearing.

27

assigned the proceeding—whether defined as the hearing or the appeal to the Board—and failed

to make a determination on it.

When the Court considered section 7102 and the relevant (and specific) version of section

7107(c) together in Arneson, the Court concluded that "it cannot be said that 'Congress has directly

spoken' to the question of whether a claimant is entitled to a hearing before all the Board members

assigned to decide his appeal."190 The majority fills the hole with a presumption that Congress

intended to remove the requirement that the veteran's decisionmaker conduct the hearing to which

the veteran is entitled.191

Presumed intent is far from express language and plain meaning. A prominent author made

that point dramatically: "When truth and reason cannot be heard, then must presumption rule."192

The law does not go that far, but it does recognize that presumptions are not conclusive and "may

be overcome by more persuasive considerations."193

First, if "we can presume that Congress understood the nature of our Arneson holding,"194

Congress would not have foreseen that the Board's reaction to a shift from the specific provision

in the former section 7107(c) to the broader provision in section 7102(a) would imperil the

veteran's right to meaningfully participate in a hearing before his or her decisionmaker. Congress

would have read Arneson as the Court should—as reaffirmation that the adjudication of veterans

benefits cases is truly pro-claimant and nonadversarial, such that the system would take care of

claimants—rather than pro-veteran in name only.195 The majority's view runs headlong into the

presumption that when Congress "adopts a statute, related judge-made law is presumed to remain

in force and work in conjunction with the new statute absent a clear indication otherwise."196 In

190

Arneson, 24 Vet.App. at 385 (quoting Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842

(1984)).

191

See discussion ante pp. 9-10.

192

BARBARA W. TUCHMAN, A DISTANT MIRROR: THE CALAMITOUS 14TH CENTURY 559 (1978) (quoting Admiral

Jean de Vienne, 1341-1396).

193

1A NORMAN J. SINGER ET AL, SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION § 22:30 (7th ed. 2007).

194

See discussion ante p. 9.

195

See Michael P. Allen, Due Process and the American Veteran: What the Constitution Can Tell Us About the

Veterans' Benefits System, 80 U. CIN. L. REV. 501, 530 (2011).

196

Larry M. Eig, Statutory Interpretation: General Principles and Recent Trends, Cong. Rsch. Serv. 20 (Sept. 24,

2014), available at http://www.sgp.fas.org.

28

other words, "[t]he normal rule of statutory construction is that if Congress intends for legislation

to change the interpretation of a judicially created concept, it makes that intent specific."197 And if

Congress had intended to do so it obviously could have specifically said—in sections 7102, 7107,

or elsewhere—that the Board may assign different Board members to conduct the hearing and

decide the case. The circumstances signal that there is no clear expression of congressional intent

in the statutory shift here. When Congress declines to expressly state its intention, we should be

sparing in presuming it. That is especially true when the presumption contravenes the core

construction canon in veterans law—the pro-veteran canon.

D. The Pro-Veteran Canon Requires Resolving Any

Ambiguity in the Statutory Scheme in the Veteran's Favor

The longstanding pro-veteran canon is based on the principle "'that provisions for benefits

to members of the Armed Services are to be construed in the beneficiaries' favor.'"198 The AMA

amplified the statutory ambiguity Arneson addressed,199 and the pro-veteran canon mandates that

the interpretive doubt be resolved in the veteran's favor.200

In the case most often cited to invoke the pro-veteran canon, Gardner v. Brown, the Board

denied the veteran's claim for benefits under 38 U.S.C. § 1151 based on disabilities resulting from

surgery in a VA facility.201 The Board's denial rested on 38 C.F.R. § 3.358(c)(3) (1993), which

interpreted the statute as only covering an injury that proximately resulted from fault by the VA

202

or from an accident during treatment or rehabilitation. Though the statute afforded

compensation for injuries resulting from surgery, rather than the veteran's misconduct, and said

197

Midlantic Nat'l Bank v. N.J. Dep't of Env't Prot., 474 U.S. 494, 501 (1986).

198

Henderson, 562 U.S. at 441 (quoting King v. St. Vincent's Hosp., 502 U.S. 215, 221 n.9 (1991)); see Fishgold v.

Sullivan Drydock & Repair Corp., 328 U.S. 275, 285 (1946) ("[Veterans laws are] to be liberally construed for the

benefit of those who left private life to serve their country in its hour of great need.").

199

The majority's declaration that "we do not find the statutes ambiguous," ante note 74, is a further departure from

Arneson. In Arneson, the Court found that reading sections 7102 and 7107 together left ambiguity—even though the

Court was reading the more specifically prescriptive version of section 7107 then applicable. See 24 Vet.App. at 385.

Now that section 7102 provides the sole surviving statutory directive, if its plain meaning isn't adequate or applicable,

as the majority contends, there is ambiguity and interpretive doubt the pro-veteran canon resolves for the veteran.

200

See Gardner v. Brown, 513 U.S.115, 118 (1994); Osman v. Peake, 22 Vet.App. 252, 256 (2008).

201

Gardner, 513 U.S. at 116-17.

202

Id.

29

nothing about fault by VA, the Secretary argued that a fault requirement inhered in the statutory

requirement of a compensable injury.203 In rejecting that argument based on the law's "text and

reasonable inferences from it," the Supreme Court looked first to the pro-veteran canon, which it

summarized as "the rule that interpretive doubt is to be resolved in the veteran's favor."204

The pro-veteran canon is at least a competing presumption that must be given precedence

in veterans benefits cases. In King v. St. Vincent's Hospital, the Supreme Court stated that it

presumed that Congress understood the pro-veteran canon as a basic rule of statutory construction,

and the Court applied that canon to read a provision in the veteran's favor, even if the language left

the significance of the provision unsettled.205 And in Henderson v. Shinseki, the Supreme Court

read the statute at issue in light of the veteran's canon, declaring that "[w]hile the terms and

placement of [the statute] provide some indication of Congress' intent, what is most telling here

are the singular characteristics of the review scheme that Congress created for the adjudication of

veterans' benefits claims."206 The pro-veteran canon requires reading 7102 to require the Board

member who is the decisionmaker and the Board member who conducts the hearing on which the

decision is based to be the same person.

E. The Public Record Undermines the Majority's Presumption of Congressional Intent

Nothing has been found in the legislative history—by the Court or the parties—to show

that Congress, in passing the AMA, expressly considered the question of whether the same Board

member who conducts the hearing must or need not render the decision. That topic was not

mentioned in the testimony by VA and Board leaders before the Senate or House Veterans' Affairs

203

Id. at 117.

204

Id. at 117-18; see Chadwick J. Harper, Give Veterans the Benefit of the Doubt: Chevron, Auer, and the Veteran's

Canon, 42 HARV. J.L. & PUB. POL'Y 931, 958-59, 961 (2019) ("The language and logic of [Gardner] suggest that

courts should apply the veteran's canon before turning to deference doctrines," and "Gardner's suggested order of

operations" is one reason "the veteran's canon should be recognized as a traditional tool of interpretation.").

205

502 U.S. at 221 n.9; see Kisor v. McDonough (Kisor IV), 995 F.3d 1316, 1327 (Fed. Cir. 2021) (Reyna, J.,

dissenting) ("[T]he pro-veteran canon is a traditional tool of construction" that requires the court to "discern the

purpose of a veterans' benefit provision in the context of the veterans' benefit scheme as a whole and ensure that the

construction effectuates, rather than frustrates, that remedial purpose: that benefits that by law belong to the veteran

go to the veteran."), cert. denied, No. 21-465, 2022 WL 89296 (U.S. Jan. 10, 2022).

206

562 U.S. at 440-42 (emphasis supplied). See Kisor IV, 995 F.3d at 1366 (O'Malley, J., dissenting) ("The pro-veteran

canon of construction . . . is a tool in the interpretive toolkit that aids in gleaning congressional intent where the plain

text of the statute or regulation does not clearly answer the question at hand.").

30

Committees in 2017. VA assured Congress that "[t]he Appeals Modernization Act transforms VA's

complex and lengthy appeals process into one that is simple, timely and fair to Veterans."207 And

the House Committee on Veterans' Affairs reported that "[t]he purpose of [the AMA] is to expedite

VA's appeals process while protecting veterans' due process rights."208

Moreover, the regulation VA promulgated to implement the AMA, 38 C.F.R. § 20.706,

says only that "[h]earings will be conducted by a Member or panel of Members of the Board"—

nothing about whether the Board member who conducts the hearing must or need not decide the

case—and the regulation cites both section 7102 and section 7107 as authority. In publishing the

proposed regulation for public comment, VA was not explicit regarding what it intended, saying

only that "VA proposes to add new § 20.706 to differentiate the procedures for appeals in the new

system, similar to proposed § 20.604, applicable to legacy appeals."209 And when it promulgated

the new rules, VA said it rejected receiving recordings in lieu of formal hearings because any

efficiency gained was "greatly outweighed by the benefits of an in-person hearing, the purpose of

which is to elicit relevant and material testimony, assess the credibility of witnesses, resolve

disputed issues of fact, and pose follow-up questions to witnesses and representatives."210 The

Secretary offered no explanation of how his agency's stated position on the benefits of an in-person

hearing for the factfinder to assess the credibility of witness is consonant with sacrificing those

benefits in favor of expedience, saying only "that goes to the content of the hearing . . . not who is

going to decide the appeal after the hearing has happened."211 And the Secretary acknowledged

that expedience is the basis for the Board's substitution policy:

207

The State of the Department of Veterans Affairs: A 60-Day Report: Hearing Before the S. Veterans' Affs. Comm.,

S. Hrg. 115-631, at 13 (2018) (statement of Robert Wilkie, Secretary of Veterans Affairs) (emphasis added), available

at https://www.congress.gov/event/115th-congress/senate-event/LC68018/text?g=%7B%22search%22%3A%5B%

22S.+Hrg.+115-631%22%2C%22S.%22%2C%22Hrg.%22%2C%22115-631%22%5D%7D&s=2&r=52.

208

H.R. REP.. NO. 115-135, at 2 (2017), available at https://www.congress.gov/congressional-report/115th-

congress/house-report/135/1?overview=closed. In light of the understanding of Congress that the AMA protects

veterans' due process rights, the presumption that Congress intended to curtail veterans' right to a meaningful hearing

is an absurd result we can and should avoid. See Timex V.I., Inc. v. United States, 157 F.3d 879, 886 (Fed. Cir. 1998)

("[A] statutory construction that causes absurd results is to be avoided if at all possible.").

209

VA Claims and Appeals Modernization, 83 Fed. Reg. 39,818, 39,835 (Aug. 10, 2018).

210

VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 158 (Jan. 18, 2019).

211

OA at 56:13–57:04.

31

[T]he Board has a computer system that assigns the cases . . . it's programmed to

assign the cases to the VLJ[212] who heard the hearing if they're available. If they're

not available within 30 days of when the docket assignment is reached . . . for the

particular appeal then it will assign [the case] to another VLJ because . . . this is

consistent with the AMA's provisions of trying to make the process more efficient.

[The substitution policy is based on expedience] because that's consistent with the

AMA.[213]

VA's written public descriptions of the appeals process for veterans continue to indicate

that the same Board member who hears their case will decide it.214 The Board offers a pamphlet

titled "How Do I Appeal?" which says: "The Veterans Law Judge does not make a decision at the

hearing. After the hearing, a transcript of the hearing is created and associated with your file and

will be reviewed by the Veterans Law Judge together with all other evidence in deciding your

appeal."215

And in its blog VAntage Point, in an April 5, 2021, post titled "How to Get a Virtual

Hearing at the BVA [Board of Veterans' Appeals]," VA wrote:

The Veteran, their [sic] representative and the Judge all meet to discuss the

Veteran's appeal. The Judge is there to help, asking the Veteran questions to better

understand the appeal. After the hearing, the appeal is held for about 90 days or

more before the Judge reviews the appeal and issues a decision.[216]

The Board's handling of this case reinforced the impression VA's public statements convey:

that the Board member who conducts the hearing will decide the case. The Board member who

conducted the May 2019 hearing, James Reinhart, by referring to himself in the first person, told

the veteran and his wife that he—Board member Reinhart—would be deciding the veteran's case:

212

"VLJ" is an initialism standing for "veterans law judge." See 38 C.F.R. § 20.101(b) (2021) ("A Member of the

Board (other than the Chairman) may also be known as a Veterans Law Judge.").

213

OA at 57:36–58:13.

214

The Court takes judicial notice of these public government documents and their equivalent. See Bareford v.

McDonough, 35 Vet.App. 171, 174 n.2 (2022); Van Dermark v. McDonough, 34 Vet.App. 204, 213 n.4 (2021).

215

DEP'T OF VETERANS AFFAIRS, "HOW DO I APPEAL?" 10 (VA Pamphlet 01-15-02B, May 2015),

https://www.bva.va.gov/docs/Pamphlets/How-Do-I-Appeal-Booklet--508Compliance.pdf. The pamphlet continues to

be used by the Board to guide veterans through the appeals process,

https://www.bva.va.gov/Frequently_Asked_questions.asp (last accessed June 2, 2022).

216

Dep't of Veterans Affairs, How to get virtual hearing at the BVA, VANTAGE POINT (Apr. 5, 2021),

https://blogs.va.gov/VAntage/85732/how-to-get-a-virtual-hearing-at-the-bva/ (last accessed June 2, 2022).

32

"[T]hat issue will not be before me";217 "[a]nything you tell me about how your current headaches

are is not going to make any difference because I can't look at that";218 and "if it's a VA doctor, I'll

have the records."219 Board member Reinhart's assurances accorded with the veteran's experience

at his July 2013 hearing, where the Board member conducting that hearing—Board member

Guido—said: "If I think I need any additional evidence before I make a decision I will get evidence

before I make a decision and when I do it will be in writing and that's how you'll be notified in a

written decision."220

F. The Facts of this Case Illustrate the Importance of Testifying Before the Decisionmaker

In May 2019, the Board member who conducted the hearing—Board member Reinhart—

asked the veteran and his wife specific questions that they answered under oath regarding the

frequency and severity of the veteran's headaches, all of which was on the record and reflected in

a verbatim transcript. That process sharply distinguishes hearing testimony from treatment records

and examination reports that do not include recorded, verbatim questions and answers. Because

the pivot point here was the period during which the veteran suffered prostrating headaches and

the frequency of those experiences, it was particularly significant that the Board member discussed

those issues with the veteran and his wife and described what "prostrating" meant. Board member

Reinhart's interaction with the veteran and his wife put him in position to assess their credibility

and judge whether any inconsistencies between their testimony and treatment and examination

records were minor, innocent variances or indicators of the veteran's and his wife's unreliability.

In addition, Board member Reinhart concluded the hearing by thanking the veteran and his

wife for their testimony—and telling the wife: "I want to thank you for your help in the memory

issues and everything like that. You were very helpful."221 A reasonable person told that they were

very helpful in resolving memory issues would be justified in having the impression that the Board

considered the person's testimony credible.

217

R. at 45 (emphasis added).

218

R. at 50 (emphasis added).

219

R. at 61 (emphasis added).

220

R. at 2787-88(emphasis added).

221

The Board member who conducted the July 2013 hearing likewise characterized the testimony of the veteran and

his wife as "very helpful." R. at 2788.

33

But the substituted Board member, Theresa Catino, decided otherwise—without meeting,

speaking with, or hearing from the veteran and his wife. The majority's observation that "perhaps

the [fair process] doctrine would have some purchase in a situation in which a Board member

deciding a case made negative credibility determinations about a witness appearing at a hearing

when the Board member did not preside at the hearing," but "that's not what happened here,"222

fails to acknowledge the dodge the Board deployed. Substitute Board member Catino did indeed

find that the lay assertions by the veteran and his wife were outweighed by other evidence of

record.223 However, first she signaled that she did not consider the testimony of the veteran and

his wife to be evidence. 224 And the substitute Board member's implicit adverse credibility

determination is obvious from both the words she used and her otherwise clearly erroneous

assessment of the evidence. In the substitute Board member's words: "the Veteran and his wife

testified that the severity of his headaches has been characteristic of prostrating attacks since 2009.

However, the evidence does not show that his headaches were productive of prostrating attacks."225

A decisionmaker could not "imply" an adverse credibility determination more clearly than

effectively saying to the veteran and his wife: "You testified that there were prostrating attacks, I

find that there weren't." That the Board decision screams "I don't believe you" is made more

emphatic—if that is possible—by reviewing "the other evidence of record" the substitute Board

member cited as outweighing the testimony: "VA treatment records and [the veteran's] April 2014

examination report."226

222

Ante note 88.

223

R. at 12-13.

224

In Garlejo v. Derwinski, 2 Vet.App. 619, 620 (1992), the Court rejected the Secretary's argument that a veteran's

statement was not evidence. The veteran argues that the Board's failure to explain this characterization constitutes a

failure to state adequate reasons or bases for its decision. Appellant's Br. at 11-12. Whatever the merits of that

argument in isolation, the contention that the Board's stated reasons or bases are inadequate is borne out by fulsome

review of the Board decision.

225

R. at 12.

226

R. at 12-13. As noted above, supra note 222, in the process of donning its blinders, the majority first opines that

the Board made no credibility determination, see ante note 88, and then pivots to opining that we should not consider

whether it did because that would "require the Court to step into the shoes of appellant and advance a theory that was

not presented on appeal," because "appellant does not even challenge the Board's weighing of the evidence," see ante

note 100. Contrary to the majority's ungenerous summary of the veteran's contentions, he did challenge the Board's

weighing of the evidence, albeit without using the majority's chosen words. The veteran argued that "the Board made

a fact error when it determined that Frantzis did not suffer migraines with prostrating attacks before February 11,

2010, or November 13, 2014." Appellant's Br. at 9 (text in all capitals replaced with plain text). The veteran argued

that the Board should have made a credibility determination regarding his and his wife's testimony that the veteran

34

On the topic of prostrating attacks, the April 2014 C&P examination report says only this:

"Does the Veteran have characteristic prostrating attacks of migraine/non-migraine headache pain?

[ ] Yes [X] No."227 So it was just an X, with no explanation, discussion, or rationale to tell the

Board the basis for that X or how it squares with the veteran's acknowledged head injury and

recurrent serious headache pain and light sensitivity. And there are only a few VA treatment reports

in the record for the relevant period: (1) A February 2010 nurse's note that says the veteran was

having headaches that caused blurred vision four to five times per day and chronic pain that

interfered with his mobility and other activities of daily living, but the note doesn't address

prostration;228 (2) a March 2013 neurology consultation note from a resident physician that also

doesn't specifically address prostration but says that the veteran had experienced headaches since

he was knocked out in the Army, with "pressure pain like a vice grip" that "may radiate throughout

the day," and that the pain is acute several times a day or (if medicated) several times each week,

and is as severe as 10 out of 10, with the veteran seeing stars and experiencing vertigo;229 and (3)

a disability benefits questionnaire a doctor completed in November 2014 describing similar

symptoms and concluding that the veteran had "very frequent prostrating (and prolonged) attacks

of migraine headaches."230

The substitute Board member's conclusion that the veteran's February 2010 description of

his headaches "did not include characteristic prostrating attacks" is an unexplained medical opinion

that the nurse who wrote the report did not render.231 The February 2010 nurse's note does not

reflect whether the nurse asked the veteran about prostration or whether the nurse formed an

suffered prostrating headaches, and that the absence of corresponding contemporaneous records did not render their

testimony not credible. Id. at 10-11. The veteran also argued that the Board failed to provide adequate reasons or bases

for its decision not to credit the testimony by the veteran and his wife "about the onset, worsening, and prostrating

nature of [the veteran's] headaches," instead acknowledging their testimony in one sentence but saying there was no

evidence of prostrating headaches in the next sentence. Id. at 11-12. Finally, at oral argument, the veteran's counsel

pressed the point that the Board had discounted the testimony by the veteran and his wife without proper explanation.

OA at 3:02-4:33, 39:11-:44, 1:33:55-:34:42.

227

R. at 2619.

228

R. at 2981.

229

R. at 2435.

230

R. at 2464.

231

See Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991) ("[The Board] must consider only independent medical

evidence to support [its] findings rather than provide [its] own medical judgment in the guise of a Board opinion."),

overruled on other grounds by Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

35

opinion on whether the disabling effects of the veteran's headaches were prostrating. The Board

similarly recast the March 2013 consult report that did not address prostration as a report that

showed there was none. 232 And the Board likewise characterized as not reporting prostrating

attacks the July 2013 testimony of the veteran and his wife that he was experiencing sudden, very

sharp headache pain that doubled him over multiple times a week, sometimes several times a day,

as well as completely disabling headaches with visualization of flashes of light.233

The Board's conclusory invocation of unspecified treatment records and a conclusory

examination report to reject the testimony of the veteran and his wife highlights the inadequacy of

its statement of reasons or bases for its decision. More than that, the Board's dismissal of the

veteran's lay evidence illustrates the flip side of Miller v. Wilkie—it is the "indication that the

Board found [] lay evidence not credible" that renders Miller's presumption of an implied finding

of credibility inapplicable. 234 Of course, a veteran's testimony and other evidence may be

outweighed by contrary evidence without impugning the veteran's credibility, such as when the

veteran does not have the medical knowledge to diagnose disease or determine etiology. But

competence is not an issue here—the case turns on the evidence of whether the veteran's chronic

headaches leave him exhausted or powerless, which no one is better positioned than the veteran

and his wife to know.235 There was no proper foundation for the Board to draw adverse inferences

from the absence of any mention of prostration in the February 2010 and March 2013 medical

232

R. at 10-11.

233

R. at 11, 2783-86.

234

See Miller v. Wilkie, 32 Vet.App. 249, 260 (2020) ("[A]bsent an indication that the Board found . . . lay evidence

not credible, or had a reason not to address its credibility—such as [finding] the veteran not competent to report the

symptoms—we will conclude that the Board found the lay evidence credible . . . ."). Other Judges have noted

circumstances similar to those present in this case. See Reynolds v. McDonough, No. 20-4340, 2022 WL 593622, at

*3 (Vet. App. Feb. 28, 2022) (mem. dec.) (Toth, J., declaring that the Miller presumption does not apply where the

Board clearly indicated that the veteran's report was not credible); Foster v. McDonough, No. 19-7806, 2021 WL

2250578, at *3 (Vet. App. June 3, 2021) (mem dec.) (Moorman, J., holding that Miller does not require the Court to

conclude that the Board made an implicit positive credibility determination when the Board, in determining that

medical examinations were the most probative evidence, indicated that it made an implicit negative credibility finding

concerning the veteran's statements); Taylor v. Wilkie, No. 19-3937, 2020 WL 6733765, at *3 (Vet. App. Nov. 17,

2020) (mem. dec.) (Laurer, J., remanding the case where the Board's treatment of the appellant's statements allows for

multiple interpretations); Benson v. Wilkie, No. 19-2303, 2020 WL 2177395, at *5 (Vet. App. May 6, 2020) (mem.

dec.) (Allen, J., remanding where the Board discussion could "be read as making a negative credibility

determination").

235

See, e.g., Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (holding that a veteran is competent to report on

observable symptomatology).

36

reports.236 The Board could not make the implicit adverse credibility determination it did here

without violating its obligation to explicitly analyze the credibility of the evidence, and especially

that of the evidence favorable to the veteran. 237 This failure to follow fair process principles

presents the most insidious example of the credibility trap—affording the veteran no notice of any

credibility concerns and no opportunity to address and have the decisionmaker consider his or her

credibility, shrouding those shortcomings in a pretense of weighing probativeness.238

Arneson illustrates the point precisely. If substituted Board member Catino found the

testimony by Mr. Frantzis and his wife concerning the prostrating consequences of his headaches

credible, the veteran would not need contemporaneous medical corroboration to substantiate his

claim.239 And even "[f]inding [the veteran's] testimony credible and yet assigning it little weight

could very well reflect the fact that the credibility assessment was based, in part, on second-hand

conveyance or record review, as opposed to personal assessment. 240 So the Arneson Court's

conclusion applies here: "Regardless, because the Board's statement is unclear as to whether it

found [the veteran's] testimony concerning . . . his symptoms credible," the argument that the

Board decision is based on probative weight and not credibility "is without merit."241

G. The Court Should Not Decline to Consider and Require Fair Process

The majority declines to consider whether the veteran was denied fair process because the

veteran's attorney "did not make such an argument until well into the appeal,"242 and then "largely

236

See Fountain v. McDonald, 27 Vet.App. 258, 272 (2015).

237

See Harvey v. Shulkin, 30 Vet.App. 10, 15 (2018); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam,

78 F.3d 604 (Fed. Cir. 1996) (table).

238

See generally Daniel L. Nagin, The Credibility Trap: Notes on a VA Evidentiary Standard, 45 U. MEM. L. REV.

887, 901 (2015) (describing the credibility trap as the practice of affording a veteran no opportunity to respond to the

Board's concerns with the veteran's credibility before the Board notes them in a negative decision). The opacity may

be motivated by concern for veterans' feelings but the national gratitude for veterans' service, sacrifice, and suffering

obliges the Board member conducting a hearing "to explain fully the issues and suggest the submission of evidence

which the claimant may have overlooked and which would be of advantage to the claimant's position," as well as to

ask questions "to explore fully the basis for [the] claimed entitlement." 38 C.F.R. § 3.103(d)(2) (2021). That obligation

goes unfulfilled when the decisionmaker who identifies and resolves the issues is substituted after the hearing.

239

Arneson, 24 Vet.App. at 388.

240

Id.

241

Id. The situation is even worse based on the Board's implicit adverse credibility determination.

242

See discussion ante p. 2.

37

in response to a pre-argument order the Court issued."243 I would not so readily forego our judicial

responsibility for the foundation of fairness on which the adjudication of veterans' claims rests.

As an initial matter, though I share the majority's concern over the timing and thoroughness

of the arguments on the veteran's behalf, I find waiver of the veteran's right to fair process to be

too harsh a sanction. And the majority overlooks factual, procedural, and substantive reasons why

waiver is inappropriate. First, the veteran argued to the Board Chairman (in a motion for

reconsideration) "that the Board erred because the VLJ who conducted [his] Board hearing was

not the same VLJ who issued the decision." At the Court, the veteran's opening argument for

reversal challenged the Board's action to switch VLJs "without providing notice."244 In so doing,

the veteran invoked the touchstone of fairness in veterans law: "notice and an opportunity to be

heard at virtually every step in the process."245 In his reply brief, the veteran argued "that it was

wrong for the [Board] to switch judges on a veteran after the hearing, but before deciding the case."

In this context, "wrong" is synonymous with "unfair."246 Then the Court ordered the parties to be

prepared to discuss the impact of Arneson and how the principle of fair process applies to this case,

and such a discussion ensued at oral argument. Declining to consider the issues we raised is

incongruous with that order.

At oral argument, the veteran's counsel contended—in the face of the majority's then

expressed contrary opinions—that: Arneson and its "fair practice" discussion "should stand as the

law";247 the new version of section 7107 doesn't say that the Board is allowed to switch judges—

section 7107 doesn't address who presides at all;248 section 7102 still applies and the member who

was assigned to the proceeding, which would include the hearing, did not make a determination,

243

See discussion ante p. 14.

244

Appellant's Br. at 6.

245

Thurber, 5 Vet.App. at 123.

246

A "wrong" is "an injurious, unfair, or unjust act." Wrong, MERRIAM-WEBSTER ONLINE, https://www.merriam-

webster.com/dictionary/wrong (last accessed June 8, 2022); see Wrong, CAMBRIDGE DICTIONARY ONLINE,

https://dictionary.cambridge.org/us/dictionary/english/wrong (last accessed June 8, 2022) (defining "wrong" as "an

unfair action."); United States v. Brunson, 30 M.J. 766, 768 (A.C.M.R. 1990) ("The first dictionary definition for

'wrongful' is 'full of wrong: INJURIOUS, UNJUST, UNFAIR ( [e.g.], a wrongful act).'" (alteration in original)

(quoting WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 2642 (1981))).

247

OA at 9:25-:39, 23:30-24:45.

248

OA at 11:42-12:25, 18:40-19:00, 21:16-23:00.

38

as required;249 Smith says that fair process requires the Board, when it "changes its position in a

way that's material to the outcome of the case," to give the veteran notice and an opportunity to

respond;250 Arneson discusses fair process in a situation the same as the situation here and says it

is very important "that the individual who makes the decision has the opportunity to see and hear

the veteran" and witness and "can assign credibility determinations from that testimony";251 "the

entire point of the of the fair process discussion in the Arneson decision was that it still falls on the

fact that the person who . . . writes [the decision] should be a person who got to see the witness

for [himself or herself]";252 and if the Board switches judges it must give "notice to the veteran

with [an] opportunity to respond and if the veteran asks for a new hearing then the hearing will be

held."253 So the majority's allegation that this dissent "asks the Court to . . . step into the shoes of

the advocate and advance a theory not raised by the appellant"254 is wrong. The veteran met or

exceeded the majority's standard by raising "some semblance of an argument."255

"[T]he refusal to consider arguments not raised is a sound prudential practice . . . [but] there

are times when prudence dictates the contrary."256 And it is beyond dispute that "the court is not

limited to the particular legal theories advanced by the parties, but rather retains the independent

power to identify and apply the proper construction of governing law."257 There are also sound

249

OA at 14:33-14:46, 33:03-:50.

250

OA at 35:23-:43.

251

OA at 37:28-38:01.

252

OA at 40:19-:39.

253

OA at 42:22-:33.

254

See ante note 87. And the case the majority cites is inapposite. In Sineneng-Smith, the Supreme Court addressed

the Ninth Circuit's "radical transformation" of the case by taking it over, and after the parties had briefed the case,

ordering further briefing—not by the parties but by three organizations—to address issues the parties had not raised,

and then the Supreme Court decided the case based on one of those issues. 140 S. Ct. 1575, 1578-82 (2020). Here,

"[u]nlike the Ninth Circuit in Sineneng-Smith, the Court did not sideline the parties in favor of soliciting arguments

from strangers to the litigation. Rather, the Court asked the parties—and only the parties—to address the issues that it

felt needed addressing." United States v. Powell, 467 F. Supp. 3d 360, 384 n.13 (E.D. Va. 2020). In the actual

circumstances of the veteran's case, we should decline the majority's "invitation to turn inartful briefing into waiver,"

decline "to adopt the judicial blinders" the majority favors, and exercise our discretion to identify and apply the law,

because allowing the Board's "decision to stand would seriously undermine the integrity and perceived fairness of our

judicial system." See United States v. McReynolds, 964 F.3d 555, 568-70 (6th Cir. 2020).

255

See ante note 87.

256

Davis v. United States, 512 U.S. 452, 464 (1994) (Scalia, J., concurring).

257

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991); see Mason v. Shinseki, 25 Vet.App. 83, 94 (2011).

39

prudential reasons for declining to consider undeveloped arguments when the Court cannot discern

the allegation of error.258 And the Court should not dictate litigation strategy or tactics that fall

within the rules of fair play.259 Neither concern is present here, but some important veterans law

principles that should get the Court's attention are.260

One important principle is the duty to generously construe veterans' pleadings. "The

Government's interest in veterans cases is that justice be done, and the systemic fairness essential

for securing justice includes a duty to construe veterans' submissions sympathetically."261 This

principle also requires the Court to liberally construe represented veterans' procedural arguments,

particularly where, as here, the veteran raised the argument before the Board.262

Most importantly, "[t]his Court's caselaw requires us to ensure compliance with reasonable

notice and fair process."263 So the Court had an obligation to address the fair process issues—

especially in light of Arneson (which the Secretary cited in his brief). The lesson taught at Army

judges' school—"stay in your lane"—is a sound one, but the lane of appellate judges includes

identifying and applying the proper construction of governing law.264 And we do the parties a

disservice if we don't engage them on the issues at oral argument—and we also increase the risk

of a mistake, born of misunderstanding, that adversely affects our jurisprudence. The Court is an

independent judicial body that doesn't work for VA, and its judges are neither veterans' advocates

nor agency apologists.265 But judges do not become advocates or apologists by stating a view of

258

See Locklear v. Nicholson, 20 Vet.App. 410, 416-17 (2006).

259

See Ashley v. Derwinski, 2 Vet.App. 307, 311 (1992).

260

See Mason, 25 Vet.App. at 98 (Kasold, J., dissenting).

261

Perciavalle v. McDonough, 35 Vet.App. 11, 30 (2021).

262

Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). "To hold that a veteran forfeits his right to have his

claims read sympathetically if he seeks assistance" from an attorney might discourage veterans from seeking such

assistance. See Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009).

263

Roberts v. McDonald, 27 Vet.App. 108, 111 (2014); see Holliday v. Principi, 14 Vet.App. 280, 289 (2001) ("[B]oth

the Federal Circuit's and this Court's caselaw require us to ensure compliance with fair process."), overruled on other

grounds by Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Castellano v. Shinseki, 25 Vet.App. 146, 157 (2011)

("In the context of veterans claims and benefits, our analysis is guided by the dictates of fair process."). "The judiciary

. . . is peculiarly equipped to act as the guardian of fair process."); Moore-McCormack Lines, Inc. v. United States,

413 F.2d 568, 581 (Ct. Cl. 1969) (when the Federal Circuit was created in 1982, the judges of the Court of Claims

continued in office as judges for the Federal Circuit. Federal Courts Improvement Act of 1982, Pub. L. No. 97-164, §

165, 96 Stat. 25, 50.).

264

See Kamen., 500 U.S. at 99.

265

See, e.g., Am. Legion v. Nicholson, 21 Vet.App. 1, 3 (2007) ("Congress established this Court under Article I of

40

the law that coincides with that of a party, or by asking tough questions that indicate the judge's

view of the case or questions about a position that a party has only alluded to—whether it is that

the appellant was denied fair process or that the appellant waived his fair process argument by not

raising it in his briefs.266 We must be unbiased, not uninterested.

H. Conclusion

Veterans' entitlement to fair process in the adjudication of their claims is "the bedrock" of

the veterans benefits system.267 In light of the prevalence of determinations based on evidence that

"is circumstantial at best,"268 the importance—to both individual veterans and systemic fairness—

of the right to an opportunity to provide direct evidence to the Board member deciding the veteran's

case cannot be overstated. Mr. Frantzis was denied that opportunity. It is beyond question that Mr.

Frantzis's inability to personally testify before his factfinder may have significantly affected the

outcome of his claim. 269 I cannot join my distinguished colleagues in turning a blind eye to

Arneson and the veteran's right to a meaningful hearing before the Board member who decides his

fate. When we forego fair process, it is past time for concern over the nature of the veterans benefits

system.270 I respectfully dissent.

the U.S. Constitution to provide our nation's veterans and their families with independent judicial review of Board

decisions."); Wisner v. West, 12 Vet.App. 330, 334 (1999) ("[The Court's] adjudication of veterans' claims is a judicial

activity, independent of the Secretary's position."), aff'd sub nom. Abbs v. Principi, 237 F.3d 1342 (Fed. Cir. 2001).

266

The former is the essence of the majority's allegation against the dissent; the latter was the majority's suggestion to

the Secretary at oral argument. OA at 1:11:17-:32. As previously indicated, the majority made clear its views regarding

statutory construction, fair process, and the credibility determination while questioning the veteran's counsel. See

discussion supra pp. 38-39.

267

Roberts v. Shinseki, 23 Vet.App. 416, 432 (2010) (Hagel, J., concurring in part), aff'd in part, 647 F.3d 1334 (Fed.

Cir. 2011).

268

Hodge, 155 F.3d at 1363.

269

See Arneson, 24 Vet.App. at 388.

270

See Michael P. Allen, Due Process and the American Veteran: What the Constitution Can Tell Us About the

Veterans' Benefits System, 80 U. CIN. L. REV. 501, 530 (2011) ("If the system these veterans have to 'navigate' is one

in which the VA is actually acting in their interest in a pro-claimant, non-adversarial manner, [a] district judge's

concern [over the large percentage of military members with relatively little formal education] is misplaced. If, on the

other hand, the process is non-adversarial in name only, the judge's concern is one we should all share.").

41