Petition for Writ of Certiorari — Louis Frantzis, Petitioner v. Todd B. Hunter, Acting Secretary of Veterans Affairs

Supreme Court briefOct 18, 2024

Ask Donna

What actually matters in this document.

Text

APPENDIX

TABLE OF CONTENTS

Page

APPENDIX A—Federal Circuit’s Opinion

(June 4, 2024) .........................................................1

APPENDIX B—Court of Appeals for Veterans

Claims’ Opinion

(June 21, 2022) ........................................................9

APPENDIX C—Court of Appeals for Veterans

Claims’ Denial of Rehearing En Banc

(July 28, 2022) .......................................................72

APPENDIX D—Constitutional and Statutory

Provisions Involved ...............................................75

APPENDIX A

_________

UNITED STATES COURT OF APPEALS FOR THE

FEDERAL CIRCUIT

_________

No. 2022-2210

_________

LOUIS FRANTZIS,

Claimant-Appellant,

DENIS MCDONOUGH, Secretary of Veterans Affairs,

Appellee.

_________

Appeal from the United States Court of Appeals for

Veterans Claims

Decided: June 4, 2024

_________

BEFORE MOORE, CHIEF JUDGE, CLEVENGER

CHEN, CIRCUIT JUDGES.

AND

MOORE, Chief Judge.

Mr. Louis Frantzis appeals from a decision of the

United States Court of Appeals for Veterans Claims

7FUFSBOT$PVSU BGĀSNJOHBEFDJTJPOPGUIF#PBSEPG

Veterans’ Appeals (Board) and holding the Board

member who conducts a hearing is not statutorily

SFRVJSFE UP NBLF UIF Ānal determination. For the

GPMMPXJOHSFBTPOT XFBGĀSN

BACKGROUND

Mr. Frantzis served in the U.S. Army from October

1979 to October 1982. In October 2009, he sought

service connection for several conditions, including

headaches. The Department of Veterans Affairs (VA)

initially denied his claims in a November 2009 rating

decision. Mr. Frantzis appealed, and the Board

eventually remanded his claim regarding headaches

for further development. In August 2014, the VA

granted service connection for his headaches and

assigned a noncompensable disability rating. Mr.

Frantzis timely appealed. While Mr. Frantzis’ appeal

was pending at the Board, the Veterans Appeals

Improvement and Modernization Act of 2017, also

known as the Appeals Modernization Act (AMA), was

enacted. Pub. L. No. 115-55, 131 Stat. 1105 (2017). In

June 2018, Mr. Frantzis elected to have his claim

adjudicated under the AMA.

*O.BZ .S'SBOU[JTBOEIJTXJGFUFTUJĀFEBUB

Board hearing conducted by Board member James

Reinhart. About four months later, on September 11,

2019, Board member Theresa Catino issued a decision

denying an increased rating and an earlier effective

date for Mr. Frantzis’ service-connected headaches.

Mr. Frantzis appealed to the Veterans Court, arguing

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

conducts a hearing to also issue the resulting decision.

After briefing and before oral argument, the Veterans

Court issued an order directing the parties to “be

prepared to discuss how the principle of fair process

applies here.” Frantzis v. McDonough, No. 20-5236 (Vet.

App. Apr. 5, 2022).

In June 2022 BEJWJEFEQBOFMBGĀSNFEUIF#PBSEhT

decision. Frantzis v. McDonough, 35 Vet. App. 354

(2022). The majority concluded the AMA does not

require the Board member conducting the hearing to

also decide the appeal. Id. at 357, 360–4QFDJĀDBMMZ

the majority relied on the removal of pre-AMA

language in 38 U.S.C. § 7107(c) requiring the same

KVEHF DPOEVDUJOH UIF IFBSJOH UP JTTVF B ĀOBM

determination. Id. at 362. The majority also rejected

the argument that 38 U.S.C. § 7102 supports the same

judge requirement because its language did not

change with enactment of the AMA. Id. at 363–64. The

majority declined to consider the fair process doctrine

because Mr. Frantzis did not raise the argument

himself. Id. at 366–67.

Judge Jaquith dissented because he believed the

Board denied Mr. Frantzis fair process in adjudicating

his claim. Id. at 368 (Jaquith, J., dissenting). He

reasoned that remand was required because, by issuing

a final determination from a Board member who did not

conduct Mr. Frantzis’ hearing, the Board failed to

provide Mr. Frantzis notice and a meaningful

opportunity to participate in the appellate process. Id.

at 371– 75. The Veterans Court denied Mr. Frantzis’

motion for full court review. Frantzis v. McDonough, No.

20-5236, 2022 WL 2980978, at *1 (Vet. App. July 28,

2022). Chief Judge Bartley dissented from denial of full

court review to express disagreement with the

majority's decision not to consider the fair process

doctrine. Id. (Bartley, C.J., dissenting).

Mr. Frantzis appeals. We have jurisdiction under 38

U.S.C. § 7292(a), (c).

DISCUSSION

In reviewing Veterans Court decisions, we “shall

decide all relevant questions of law, including

interpreting constitutional and statutory provisions.”

38 U.S.C. § 7292(d)(1). We review the Veterans Court's

legal interpretations de novo. Monk v. Shulkin, 855

F.3d 1312, 1316 (Fed. Cir. 2017).

Mr. Frantzis argues the Veterans Court erred

because the AMA does not authorize the Board to issue

an opinion authored by a different member than the

member who conducted the hearing. Appellant Br. at

10–14. The Secretary of Veterans Affairs (Secretary)

argues the AMA eliminated the same judge

requirement because it removed the language

expressly requiring the same judge for the hearing and

final determination. Appellee Br. at 10–16. We agree

with the Secretary.

The AMA established a new system for adjudicating

appeals. Mattox v. McDonough, 56 F.4th 1369, 1373

(Fed. Cir. 2023). The existing appeal system, referred

to as the “legacy” system, remained intact and by

default applies to all claims initially decided before

February 19, 2019. Id. The AMA allows claimants with

legacy claims to elect the new appeals system over the

legacy system. AMA § 2(x)(3), (5), 131 Stat. at 1115.

Mr. Frantzis elected to participate in the AMA system.

J.A. 303.

Under the pre-AMA system, the Board member who

DPOEVDUFE UIF IFBSJOH NVTU QBSUJDJQBUF JO UIF ĀOBM

determination of the claim. 38 U.S.C. § 7107(c) (1994)

(“Such member or members designated by the

Chairman to conduct the hearing shall, except in the

case of a reconsideration of a decision ..., participate

JONBLJOHUIFĀOBMEFUFSNJOBUJPOPGUIFDMBJNw 5IF

AMA amended 38 U.S.C. § 7107(c) and removed the

language that required the same judge for both the

IFBSJOHBOEĀOBMEFUFSNJOBUJPO"."f U 4UBU

at 1112–13; see also 38 U.S.C. § 7107(c) (2017). The

express language for the same member requirement

no longer exists.

Mr. Frantzis argues 38 U.S.C. § 7102 supplies a same

Board member requirement. Section 7102(a) governs

the assignment of cases to Board members and does not

mention requirements for hearings and final

determinations. 38 U.S.C. § 7102(a) (“A member or

panel assigned a proceeding shall make a

determination thereon, including any motion filed in

connection therewith.”). The language of § 7102

remained the same before and after enactment of the

AMA. Mr. Frantzis argues, as Judge Jaquith asserted in

his dissent, the language of § 7102 broadly creates a

same Board member requirement which remained in

place after the more specific language of § 7107(c) was

removed. Based on the plain language of the statute, we

do not agree.

The source of the same member requirement for the

legacy appeals system was pre-AMA 38 U.S.C. §

7107(c). The unchanged language of § 7102 cannot be

the basis for the same member requirement in the

AMA system. A statutory interpretation otherwise

would violate the presumption against surplusage. See

Nat'l Ass'n of Mfrs. v. Dep't of Defense, 583 U.S. 109,

128–29, 138 S.Ct. 617, 199 L.Ed.2d 501 (2018)

(rejecting interpretation that would render a portion of

the statute meaningless without clear evidence of

Congress’ intent). Nor can we agree with Mr. Frantzis’

argument that, through enactment of the AMA,

Congress intended to embed § 7102 with a same Board

member requirement. Mr. Frantzis offers no support

for the argument that Congress intended to impliedly

amend § 7102 by leaving its text unchanged. The

statutory scheme and its history are clear—the same

judge is not required to both conduct the hearing and

author the final determination under the AMA.

Mr. Frantzis and amici argue the Veterans Court

erred by declining to address the fair process

doctrine.1 Appellant Br. at 19–22. There is uncertainty

surrounding this doctrine and how it is applied. The

fair process doctrine is a recognition that due process

applies in the claimant process. Sprinkle v. Shinseki,

733 F.3d 1180, 1185 (Fed. Cir. 2013) (“[T]his court has

held the Due Process Clause of the Constitution

applies to proceedings in which the VA decides

whether claimants are eligible for veterans’ benefits.”).

For example, we explained the fair process doctrine

requires the Board to “provide a claimant with

reasonable notice of [new] evidence ... and a reasonable

opportunity for the claimant to respond to it.” Id.

(omission in original) (quoting Thurber v. Brown, 5 Vet.

App. 119, 126 (1993)). To the extent Mr. Frantzis

argues the fair process doctrine creates a procedural

right, the argument was not presented below and is

thus forfeited.

'PS UIFTF SFBTPOT XF BGĀSN UIF 7FUFSBOT $PVSUhT

decision holding the AMA does not require the same

#PBSENFNCFSDPOEVDUUIFIFBSJOHBOENBLFBĀOBl

determination.

Judge Jaquith's dissent and the amici brief discuss Arneson v.

Shinseki, 24 Vet. App. 379 (2011) in support of their fair process

argument. But Arneson expressly declined to reach the question

of whether the fair process doctrine creates a procedural right

to a hearing before every Board member who decided a case

and, instead, determined that 38 U.S.C. § 7102, pre-AMA 38

U.S.C. § 7107, and 38 C.F.R. § 20.707 provide this right. 24 Vet.

App. at 386–89.

CONCLUSION

We have considered Mr. Frantzis’ remaining

arguments and find them unpersuasive. For the

reasons given above, we affirm the decision of the

Veterans Court.

AFFIRMED.

APPENDIX B

_________

UNITED STATES COURT OF APPEALS FOR

VETERANS CLAIMS

_________

LOUIS R. FRANTZIS,

Appellant,

DENIS MCDONOUGH,

Secretary of Veterans Affairs,

Appellee.

_________

No. 20-5236

Argued April 14, 2022

Decided June 21, 2022

_________

BEFORE ALLEN, FALVEY, AND JAQUITH, JUDGES.

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

Record (R.) at 3114.

See 38 U.S.C. §§ 7252(a), 7266(a).

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 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

R. at 7-14.

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

The Court thanks the students, faculty, and staff at the

University of Florida (UF) Levin College of Law for their

āFYJCJMJUZSFHBSEJOHPSBMBSHVNFOU8FXFSFTVQQPTFEUPIBWF

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

QBSUJFTGPSUIFJSāFYJCJMJUZDPODFSOJOHUIFMBTU-minute changes

to the argument schedule.

10a

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.

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 8 At a July 2013 Board

R. at 3098.

R. at 3015-16, 2938-63.

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

11a

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

noncompensable disability rating. 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

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.

R. at 2780.

R. at 2780, 2782.

R. at 2783-84.

R. at 2736-38.

R. at 2479-94.

R. at 2476-77.

R. at 2412-33.

R. at 87-98.

12a

Level Review conducted under the AMA process, VA

issued a rating decision in September 2018 (via

appellant's RAMP 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

prostrating attacks ... or resulted in extreme

exhaustion or powerlessness.” 24 The Board noted

R. at 91-93.

R. at 82-85.

R. at 44-67.

R. at 51-59.

R. at 61.

R. at 7-14.

R. at 9, 11.

R. at 12.

13a

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

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

R. at 12-13.

R. at 13.

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

Id. at 7.

14a

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.

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

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

15a

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. 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

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

Id. at 68-69.

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.”).

See id.

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

157 (2021).

16a

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 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

See 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. § 20.202(b) (2021);

Andrews, 34 Vet.App. at 157.

See R. at 87-98.

R. at 82-85.

See Saunders v. Wilkie, 886 F.3d 1356, 1360 (Fed. Cir. 2018);

see also Casey v. Wilkie, 31 Vet.App. 260, 265 (2019).

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, 111 S.Ct. 461, 112 L.Ed.2d 449

(1990)); Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984).

Casey, 31 Vet.App. at 265.

17a

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 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

Id.

Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54, 112 S.Ct.

1146, 117 L.Ed.2d 391 (1992).

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

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.

18a

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

See id. at 382-89.

Id. at 383-86.

Id. at 384.

Id.

See 38 U.S.C. §§ 7102, 7107 (2021).

38 U.S.C. § 7107.

See Casey, 31 Vet.App. at 265 (quoting Hornick v. Shinseki, 24

Vet.App. 50, 52 (2010)).

19a

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 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

38 U.S.C. § 7107(c) (2016).

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

See 38 U.S.C. § 7107(c) (2017).

38 U.S.C. § 7107(c) (2017).

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)).

20a

Arneson holding that interpreted the language of preAMA 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 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

See Arneson, 24 Vet.App. at 386.

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

7107(c) (2021).

Ross v. Blake, 578 U.S. 632, 641-42, 136 S.Ct. 1850, 195

L.Ed.2d 117 (2016) (cleaned up).

See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 476,

112 S.Ct. 2589, 120 L.Ed.2d 379 (1992) (noting “the basic and

21a

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

unexceptional rule that courts must give effect to the clear

meaning of statutes as written”).

38 U.S.C. § 7102(a) (2021).

Appellant’s Br. at 6-7.

See Quinn v. Wilkie, 31 Vet.App. 284, 291 (2019) (citing

Kingdomware Techs., Inc. v. United States, 579 U.S. 162, 136 S.

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

22a

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 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

See Arneson, 24 Vet.App. at 384.

Id.

The dissent posits that the “‘refocusing’ of 38 U.S.C. § 7107

EFMFUFEUIFDPEJĀDBUJPOPGUIFWFUFSBOTSJHIUUPBIFBSJOHJO

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.

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

EJEOPUSFMZPOBOZTQFDJĀDMBOHVBHFJOTFDUJPOUPSFOEFS

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

POMZTQFDJĀDMBOHVBHFPGUIFQPTU-1994 section 7102 that the

Court mentioned was the portion of section 7102(a) that “allows

23a

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 preAMA version of section 7107.71 In addition, before

1994, Congress actually used section 7102 to do what

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.

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

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

U.S.C. § 7107 (2017).

See Arneson, 24 Vet.App. at 384.

38 U.S.C. § 7107(c) (2016).

24a

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 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

38 U.S.C. § 7102(b) (1993).

See Ross, 578 U.S. at 641-42, 136 S.Ct. 1850.

We note that we do not need to resort to the pro- veteran

DBOPOPGDPOTUSVDUJPOCFDBVTFXFĀOEUIFTUBUVUFTDMFBSBTUP

UIFJTTVFJOPUIFSXPSET XFEPOPUĀOEUIFTUBUVUFTBNCJHVPVT

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, 115 S.Ct. 552, 130

L.Ed.2d 462 (1994))).

25a

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

2. VA’s implementing regulations, 38 C.F.R. §§

20.604, 20.706 (2021), do not assist appellant.

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 XFĀOEBQQFMMBOUTDPNNFOUXJUIPVUNFSJU

i1SPDFFEJOHwJTOPUEFĀOFEXJthin title 38 of the U.S. Code, but

appellant’s interpretation is inconsistent with how “proceeding”

JTVTFEJOTFDUJPOBOEJOPUIFSTUBUVUFT5IFĀSTUTFOUFODF

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

JOJUJBUJPOPGBQQFMMBUFSFWJFXBOEUIFĀOBMEFUFSNJOBUJPO

26a

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

See Chevron, 467 U.S. at 844-45, 104 S.Ct. 2778. 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.

See 38 C.F.R. §§ 20.600-20.605, 20.700-20.715 (2021). AMA

claims fall under the general rules for Board hearings.

The regulation is titled: “Designation of Member or Members

to conduct the hearing in a legacy appeal.”

38 C.F.R. § 20.604 (2021).

The regulation is titled: “Designation of Member or Members

to conduct the hearing.”

27a

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.

At oral argument, largely in response to a preargument 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

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

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

Id. (internal quotations omitted).

28a

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

See United States v. Sineneng-Smith, ––– U.S. ––––, 140 S. Ct.

1575, 1581, 206 L.Ed.2d 866 (2020); Sellers v. Shinseki, 25

Vet.App. 265, 274-75 (2012).

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

Sineneng-Smith, 140 S. Ct. at 1579 (quoting Castro v. United

States, 540 U.S. 375, 386, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003)

(Scalia, J., concurring in part and concurring in the judgment)).

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.

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

29a

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

incredibly

underdeveloped, meaning that, in effect, he has not

carried his burden of showing that the Board clearly

observe that we doubt the doctrine would apply in such an allor-nothing way. So, perhaps 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- ĀOEJOHUIBUBQQFMMBOUTBOEIJTXJGFTMBZBTTFSUJPOT

were outweighed by other evidence of record and not making an

BEWFSTFDSFEJCJMJUZĀOEJOH *OBOZFWFOU JOBOBQQSPQriate

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.

See Appellant’s Br. at 9-13.

See id.

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).

30a

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 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.

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).

38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 5657 (1990).

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.

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

Appellant’s Br. at 10.

31a

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

See R. at 12, 13.

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

Cir. 2006).

3BU i"DDPSEJOHMZ UIF#PBSEĀOETUIBUUIFMBZBTTFSUJPOT

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

ĀOEJOH

32a

Court AFFIRMS the September 11, 2019, Board

decision.

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

101

R. at 2780-82.

R. at 3098, 3015-18.

103

R. at 2934.

104

R. at 2778-88.

105

R. at 44-67.

106

R. at 44, 2778.

102

33a

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 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

107

R. at 2782-84.

Id.

109

R. at 2785.

110

R. at 2736-37.

111

R. at 2490-91.

112

R. at 2477.

108

34a

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 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.

113

R. at 2463-65.

R. at 2432-33.

115

R. at 2317, 2406-07.

116

R. at 83.

117

R. at 46-47.

118

R. at 49-50.

119

R. at 51.

114

35a

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

120

R. at 50-51.

R. at 56.

122

Id.

123

R. at 57.

124

R. at 58-59.

125

R. at 60.

126

R. at 63.

121

36a

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.

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

the

United

States

130

Constitution.” 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

127

R. 9-14.

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.

128

37a

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. Brown135 in 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 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

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 wellestablished 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. at 552.

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, 75 S.Ct. 409, 99 L.Ed.

467 (1955)).

38a

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 proclaimant.”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

139

Thurber, 5 Vet.App. at 122.

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), BGGETVCOPN1SJDLFUUW.BOTĀFME, 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)).

140

39a

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

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

145

Johnson v. Robison, 415 U.S. 361, 381 n.15, 94 S.Ct. 1160, 39

L.Ed.2d 389 (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

'FE$JS i5IFWFUFSBOTCFOFĀUTTDIFNFJTAJNCVFE

XJUITQFDJBMCFOFĀDFODFGSPNBHSBUFGVMTPWFSFJHOw RVPting

Bailey v. West, 160 F.3d 1360, 1370 (Fed. Cir. 1998) (Michel, J.,

concurring)); Gilbert v. Derwinski, 1 Vet.App. 49, 54 (1990)

EFDMBSJOHUIBU JOWFUFSBOTCFOFĀUTEFUFSNJOBUJPOT UIFCFOFĀU

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,

132 S.Ct. 2537, 183 L.Ed.2d 574 (2012) (“In periods of war and

QFBDFBMJLFQVCMJDSFDPHOJUJPOPGWBMPSBOEOPCMFTBDSJĀDFCZ

men and women in uniform reinforces the pride and national

SFTPMWFUIBUUIFNJMJUBSZSFMJFTVQPOUPGVMĀMMJUTNJTTJPOw

147

Henderson v. Shinseki, 562 U.S. 428, 440, 131 S.Ct. 1197, 179

L.Ed.2d 159 (2011).

148

Id.

149

See United States v. Oregon, 366 U.S. 643, 647, 81 S.Ct. 1278,

6 L.Ed.2d 575 (1961) (“The solicitude of Congress for veterans is

of long standing.”).

40a

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

150

Henderson, 562 U.S. at 440, 131 S.Ct. 1197 (quoting Shinseki

v. Sanders, 556 U.S. 396, 416, 129 S.Ct. 1696, 173 L.Ed.2d 532

(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 receivFGPSUIFJSTFSWJDF TBDSJĀDF BOETVGGFSJOH UIF

federal Federal [sic] 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.

41a

participate in the appellate process. The 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

155

Thurber, 5 Vet.App. at 126.

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).

156

42a

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

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

161

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

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).

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.

162

43a

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 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

166

Id. at 387 n.2.

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).

167

44a

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

172

Id. at 336-37.

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

173

45a

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.

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

right to fair process, it need not reach the Constitutional

question of due process.”).

177

See discussion ante p. 361.

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.

46a

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

180

Arneson, 24 Vet.App. at 384.

Id. at 390.

182

Cf. ante pp. 363–64.

183

See discussion ante pp. 363, 363–64; ante note 67.

181

47a

by the appellant, at a location the appellant 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

184

Good Samaritan Hosp. v. Shalala, 508 U.S. 402, 409, 113

S.Ct. 2151, 124 L.Ed.2d 368 (1993).

185

38 U.S.C. § 7102(a).

186

38 C.F.R. § 3.103(a) (2021). The “refocusing” of 38 U.S.C.

§ EFMFUFEUIFDPEJĀDBUJPOPGUIFWFUFSBOTSJHIUUPB

hearing in section 7107(b). But if we read the words carefully, as

UIJTEJTTFOUEPFTXJUIUIPTFPGTFDUJPO B XFTUJMMĀOEB

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).

48a

And the definitions of “hearing” in Black’s Law

Dictionary encompass “[a]n administrative agency

proceeding in which evidence is offered.”188 In

addition,

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 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

188

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

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.

190

Arneson, 24 Vet.App. at 385 (quoting Chevron, U.S.A., Inc. v.

Nat. Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S.Ct. 2778, 81

L.Ed.2d 694 (1984)).

189

49a

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 proclaimant and nonadversarial, such that the system

would take care of claimants—rather than proveteran 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

191

See discussion ante pp. 362–63.

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 pp. 362–63.

195

See Michael P. Allen, Due Process and the American Veteran:

8IBUUIF$POTUJUVUJPO$BO5FMM6T"CPVUUIF7FUFSBOT#FOFĀUs

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

192

50a

to remain in force and work in conjunction with the

new statute absent a clear indication otherwise.”196 In

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

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.

197

Midlantic Nat’l Bank v. N.J. Dep’t of Env’t Prot., 474 U.S. 494,

501, 106 S.Ct. 755, 88 L.Ed.2d 859 (1986).

198

Henderson, 562 U.S. at 441, 131 S.Ct. 1197 (quoting King v.

St. Vincent’s Hosp., 502 U.S. 215, 221 n.9, 112 S.Ct. 570, 116

L.Ed.2d 578 (1991)); see Fishgold v. Sullivan Drydock & Repair

Corp., 328 U.S. 275, 285, 66 S.Ct. 1105, 90 L.Ed. 1230 (1946)

i<7FUFSBOTMBXTBSF>UPCFMJCFSBMMZDPOTUSVFEGPSUIFCFOFĀUPG

those who left private life to serve their country in its hour of

great need.”).

51a

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 proveteran 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 or from an accident during

treatment or rehabilitation.202 Though the statute

afforded compensation for injuries resulting from

surgery, rather than the veteran’s misconduct, and

said 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

199

5IFNBKPSJUZTEFDMBSBUJPOUIBUiXFEPOPUĀOEUIFTUBUutes

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

SFBEJOHUIFNPSFTQFDJĀDBMMZQSFTDSJQUJWFWFSTJPOPGTFDUJPO

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, 115 S.Ct. 552.

202

Id.

203

Id. at 117, 115 S.Ct. 552.

52a

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

204

Id. at 117-18, 115 S.Ct. 552; see Chadwick J. Harper, Give

7FUFSBOTUIF#FOFĀUPGUIF%PVCUChevron, 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, 112 S.Ct. 570; 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

BWFUFSBOTCFOFĀUQSPWJTJPOJOUIFDPOUFYUPGUIFWFUFSBOT

CFOFĀUTDIFNFBTBXIPMFBnd ensure that the construction

effectuates, rather than frustrates, that remedial purpose: that

CFOFĀUTUIBUCZMBXCFMPOHUPUIFWFUFSBOHPUPUIFWFUFSBOw

cert. denied, ––– U.S. ––––, 142 S.Ct. 756, 211 L.Ed.2d 474

(2022).

53a

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 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

206

562 U.S. at 440-42, 131 S.Ct. 1197 (emphasis supplied). See

Kisor IV, 995 F.3d at 1366 (O’Malley, J., dissenting) (“The proveteran 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.”).

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/senateevent/LC68018/text?

g=%7B%22search%22%3%1FA%5B%22S.+Hrg. +115631%22%2C%22S.%22%2C%22Hrg. %22%2C%22115631%22%5D%7D& =2& r=52.

54a

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

208

H.R. REP. NO. 115-135, at 2 (2017), available at

https://www.congress.gov/ congressional-report/115thcongress/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).

55a

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:

[T]he Board has a computer system that assigns the

cases ... it’s programmed to assign the cases to the

VLJ212 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

210

VA Claims and Appeals Modernization, 84 Fed. Reg. 138, 158

(Jan. 18, 2019).

211

OA at 56:13–57:04.

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

56a

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

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-AppealBooklet--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-virtualhearing-at-the-bva/ (last accessed June 2, 2022).

57a

veteran’s case: “[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

217

R. at 45 (emphasis added).

R. at 50 (emphasis added).

219

R. at 61 (emphasis added).

220

R. at 2787-88(emphasis added).

218

58a

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.

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

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.

222

Ante note 88.

223

R. at 12-13.

59a

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

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 1112. 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

EPOOJOHJUTCMJOEFST UIFNBKPSJUZĀSTUPQJOFTUIBUUIF#PBSE

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

60a

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

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 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.

61a

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.231 231 The February

2010 nurse's note does not reflect whether the nurse

asked the veteran about prostration or whether the

nurse formed an 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

228

R. at 2981.

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

TVQQPSU<JUT>ĀOEJOHTSBUIFSUIBOQSPWJEF<JUT>PXONFEJDBM

judgment in the guise of a Board opinion.”), overruled on other

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

229

62a

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

232

R. at 10-11.

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—TVDIBT<ĀOEJOH>UIF

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

OFHBUJWFDSFEJCJMJUZĀOEJOHDPODFSOJOHUIFWFUFSBOhT

233

63a

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 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,

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).

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).

64a

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

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

WFUFSBOTTFSWJDF TBDSJĀDF BOETVGGFSJOHPCMJHFTUIF#PBSE

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)

5IBUPCMJHBUJPOHPFTVOGVMĀMMFEXIFOUIFEFDJTJPONBLFS

XIPJEFOUJĀFTBOESFTPMWFTUIFJTTVFTJTTVCTUJUVUFEBGUFSUIF

hearing.

239

Arneson, 24 Vet.App. at 388.

240

Id.

65a

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 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

241

Id. The situation is even worse based on the Board's implicit

adverse credibility determination.

242

See discussion ante p. 357.

243

See discussion ante p. 366.

244

Appellant's Br. at 6.

245

Thurber, 5 Vet.App. at 123.

66a

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, 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

246

A “wrong” is “an injurious, unfair, or unjust act.” Wrong,

MERRIAM-WEBSTER

ONLINE,

https://www.merriamwebster.com/dictionary/wrong (last accessed June 8, 2022); see

Wrong,

CAMBRIDGE

DICTIONARY

ONLINE,

https://dictionary.cambridge.org/us/dictionary/english/wrong

MBTU BDDFTTFE +VOF EFĀOJOH iXSPOHw BT iBO VOGBJS

action.”); United States v. Brunson, 30 M.J. 766, 768 (A.C.M.R.

i5IF ĀSTU EJDUJPOBSZ EFĀOJUJPO GPS AXSPOHGVM JT AGVMM PG

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.

249

OA at 14:33-14:46, 33:03-:50.

67a

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

250

OA at 35:23-:43.

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,

PSEFSJOHGVSUIFSCSJFĀOH—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. ––– U.S. ––––, 140 S. Ct. 1575, 1578-82, 206 L.Ed.2d 866

(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

NBKPSJUZhTiJOWJUBUJPOUPUVSOJOBSUGVMCSJFĀOHJOUPXBJWFS w

decline “to adopt the judicial blinders” the majority favors, and

251

68a

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 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

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, 114 S.Ct. 2350, 129

L.Ed.2d 362 (1994) (Scalia, J., concurring).

257

Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99, 111 S.Ct.

1711, 114 L.Ed.2d 152 (1991); see Mason v. Shinseki, 25

Vet.App. 83, 94 (2011).

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).

69a

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

261

Perciavalle v. McDonough, 35 Vet.App. 11, 30 (2021).

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

WFUFSBOTDMBJNTBOECFOFĀUT PVSBOBMZTJTJTHVJEFECZUIF

dictates of fair process.”). “The judiciary ... is peculiarly

equipped to act as the guardian of fair process.”); MooreMcCormack Lines, Inc. v. United States, 413 F.2d 568, 581 (Ct.

Cl. 1969) (when the Federal Circuit was created in 1982, the

KVEHFTPGUIF$PVSUPG$MBJNTDPOUJOVFEJOPGĀDFBTKVEges 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, 111 S.Ct. 1711.

262

70a

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 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

265

See, e.g., Am. Legion v. Nicholson, 21 Vet.App. 1, 3 (2007)

(“Congress established this Court under Article I of 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. 385–86.

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.

71a

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.

269

See Arneson, 24 Vet.App. at 388.

See Michael P. Allen, Due Process and the American Veteran:

8IBUUIF$POTUJUVUJPO$BO5FMM6T"CPVUUIF7FUFSBOT#FOFĀUT

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.”).

270

72a

APPENDIX C

_________

UNITED STATES COURT OF APPEALS FOR

VETERANS CLAIMS

_________

LOUIS FRANTZIS,

Appellant,

DENIS MCDONOUGH,

Secretary of Veterans Affairs,

Appellee.

_________

No. 20-5236

Dated: July 28, 2022

_________

BEFORE BARTLEY, CHIEF JUDGE, AND PIETSCH,

GREENBERG, ALLEN, TOTH, FALVEY, LAURER,

AND JAQUITH, JUDGES.1

PER CURIAM.

On June 21, 2022, in a panel decision, a majority

affirmed the S September 11, 2019, decision of the

Board of Veterans’ Appeals that denied entitlement to

(1) a compensable disability rating for serviceconnected 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

Judge Meredith recused herself from this matter.

73a

October 15, 2009, for service-connected tension

headaches. On July 1, 2022, the appellant filed a

timely motion for full Court review.

“Motions for full Court review are not favored.

Ordinarily they will not be granted unless such action

is necessary to secure or maintain uniformity of the

Court’s decisions or to resolve a question of

exceptional importance.” U.S. VET. APP. R. 35(c). In

this matter, the appellant has not shown that either

basis exists to warrant full Court review.

Upon consideration of the foregoing, it is

ORDERED that the motion for full Court review is

denied.

BARTLEY, Chief Judge, with whom JAQUITH,

Judge, joins, dissenting:

I write to express profound disagreement with the

Court’s denial of en banc review in this case. Few

rights are more fundamental to our judicial system in

general, and the veterans benefits system in

particular, than the right to a full and fair hearing

before the individual who will decide your case. For

VA benefits claimants, that right was not purely

statutory, but is also grounded in constitutional due

process and basic tenets of fair play that permeate and

undergird nearly every aspect of VA’s nonadversarial

benefits system. See Mathews v. Eldridge, 424 U.S.

319, 334 (1976); Bryant v. Wilkie, 33 Vet.App. 43, 4647 (2020). Yet the majority in this case effectively

abrogated that essential right without addressing

whether those bedrock principles of fair process

demand a different result. And, as my colleague Judge

Jaquith explained in his dissenting opinion, a system

74a

that allows one Board member to conduct a hearing

and another to decide an appeal offends the most basic

notions of fair process, as it undermines the very

reasons for having a hearing in the first place.

Judicial restraint may be a virtue, but it is

misguided here. The Court expressly ordered and

heard argument on “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.” Frantzis v. McDonough, No.

20-5236, 2022 WL 2208386, at *8 (Vet. App. June 21,

2022). Nevertheless, the majority declined to address

that issue even though it was ripe for decision. I see

no value in leaving that decision for another day;

there is simply no principled reason to delay

consideration of this exceptionally important question

and in the interim allow veterans at the Board to be

deprived of their right to fair process. Therefore, I

must respectfully dissent from the Court’s order to

deny en banc review in this case.

75a

APPENDIX D

_________

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

_________

U.S. Const. amend. V

No person shall be held to answer for a capital,

or otherwise infamous crime, unless on a presentment

or indictment of a Grand Jury, except in cases arising

in the land or naval forces, or in the Militia, when in

actual service in time of War or public danger; nor

shall any person be subject for the same offence to be

twice put in jeopardy of life or limb; nor shall be

compelled in any criminal case to be a witness against

himself, nor be deprived of life, liberty, or property,

without due process of law; nor shall private property

be taken for public use, without just compensation.

Exec. Order No. 6230, Part II provides in

pertinent part:

(a) The chairman may from time to time divide

the Board into sections of three members, assign the

members of the Board thereto and designate the chief

thereof. If a section as a result of a vacancy or absence

or inability of a member assigned thereto to serve

76a

thereon is composed of a number of members less than

designated for the section, the chairman may assign

other members to the section or direct the section to

proceed with the transaction of business without

awaiting any additional assignment of members

thereto. A hearing docket shall be maintained and

formal recorded hearings shall be held by such

associate member or members as the chairman may

designate, the associate member or members being of

UIFTFDUJPOXIJDIXJMMNBLFĀOBMEFUFSNination in the

claim. A section of the board shall make a

determination on any proceeding instituted before the

board and on any motion in connection therewith

assigned to such section by the chairman and shall

make a report of any such determination, which report

TIBMMDPOTUJUVUFJUTĀOBMEJTQPTJUJPOPGUIFQSPDFFEJOH

38 U.S.C. § 4002 (1958) provides:

§ 4002. Assignment of members of Board.

The Chairman may from time to time divide the

Board into sections of three members, assign the

members of the Board thereto, and designate the chief

thereof. If a section as a result of a vacancy or absence

or inability of a member assigned thereto to serve

thereon is composed of a number of members less than

designated for the section, the Chairman may assign

other members to the section or direct the section to

proceed with the transaction of business without

awaiting any additional assignment of members

77a

thereto. A hearing docket shall be maintained and

formal recorded hearings shall be held by such

associate member or members as the Chairman may

designate, the associate member or members being of

UIFTFDUJPOXIJDIXJMMNBLFĀOBMEFUFSNJOBUJPOJOUIF

claim. A section of the Board shall make a

determination on any proceeding instituted before the

Board and on any motion in connection therewith

assigned to such section by the Chairman and shall

make a report of any such determination, which report

TIBMMDPOTUJUVUFJUTĀOBMEJTQPTJUJPOPGUIFQSPDFFEJOH

38 U.S.C. § 4004 (1958) provides:

§ 4004. Jurisdiction of the Board.

(a) "MMRVFTUJPOTPODMBJNTJOWPMWJOHCFOFĀUT

under the laws administered by the Veterans’

Administration shall be subject to one review on

appeal to the Administrator. Final decisions on such

appeals shall be made by the Board.

(b) When a claim is disallowed by the Board,

it may not thereafter be reopened and allowed, and no

claim based upon the same factual basis shall be

considered;

however,

where

subsequent

disallowance of a claim, new and material evidence in

UIF GPSN PG PGĀDJBM SFQPSUT GSPN UIF QSPQFS TFSWJDF

department is secured, the Board may authorize the

reopening of the claim and review of the former

decision.

by the regulations of the Veterans’ Administration,

78a

instructions of the Administrator, and the precedent

PQJOJPOTPGUIFDIJFGMBXPGĀDFS

38 U.S.C. § 4002 (1988) provides:

§ 4002. Assignment of members of Board

(a)(1) The Chairman may from time to time

divide the Board into sections of three members,

assign the members of the Board thereto, and

designate the chief thereof.

(2)(A) If a section is composed of fewer than

three members as a result of the absence of a member

or a vacancy on the Board or the inability of a member

assigned to a section to serve on that section, the

Chairman--(i) may assign another member of the

Board to the section; (ii) may designate an employee

of the Veterans’ Administration to serve as an acting

member of the Board on such section for a period of

not to exceed 90 days, as determined by the Chairman;

or (iii) may direct the section to proceed with the

transaction of business without awaiting the

assignment of an additional member to the section.

(B) An individual may not serve as an acting

member of the Board for more than 270 days during

any 12-month period.

(3) A section of the Board may not at any time

have among its members more than one individual

who is a temporary member designated under section

4001(c) of this title or an acting member designated

under paragraph(2)(A)(i) of this subsection.

(b) A hearing docket shall be maintained and

formal recorded hearings shall be held by such

79a

member, or members as the Chairman may designate,

the member or members being of the section which

XJMMNBLFĀOBMEFUFSNJOBUJPOJOUIFDMBJN

determination on any proceeding instituted before the

Board and on any motion in connection therewith

assigned to such section by the Chairman and shall

make a report of any such determination, which report

shall constiUVUFJUTĀOBMEJTQPTJUJPOPGUIFQSPDFFEJOH

38 U.S.C. § 4004 (1988) provides:

§ 4004. Jurisdiction of the Board

(a) All questions in a matter which under

section 211(a) of this title is subject to decision by the

Administrator shall be subject to one review on appeal

to the Administrator. Final decisions on such appeals

shall be made by the Board. The Board shall decide

any such appeal only after affording the claimant an

opportunity for a hearing. Decisions of the Board shall

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.

(b) Except as provided in section 3008 of this

title, when a claim is disallowed by the Board, the

claim may not thereafter be reopened and allowed and

a claim based upon the same factual basis may not be

considered.

by the regulations of the Veterans’ Administration,

instructions of the Administrator, and the precedent

PQJOJPOTPGUIFDIJFGMBXPGĀDFS

80a

(d) Each decision of the Board shall include

(1) a written statement of the Board’T ĀOEJOHT BOE

conclusions, and the reasons or bases for those

ĀOEJOHTBOEDPODMVTJPOT POBMMNBUFSJBMJTTVFTPGGBDU

and law presented on the record; and (2) an order

granting appropriate relief or denying relief.

(e) After reaching a decision in a case, the

Board shall promptly mail a copy of its written

decision to the claimant and the claimant’s authorized

representative (if any) at the last known address of

the claimant and at the last known address of such

representative (if any).

38 U.S.C. § 7102 (1994) provides:

§ 7102. Assignment of members of Board

(a) 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

ĀMFEJODPOOFDUJPOUIFSFXJUI5IFNFNCFSPSQBOFM BT

the case may be, shall make a report under section

7104(d) of this title on any such determination, which

SFQPSU TIBMM DPOTUJUVUF UIF ĀOBM EJTQPTJUJPO PG UIF

proceeding by the member or panel.

(b) A proceeding may not be assigned to the

Chairman as an individual member. The Chairman

may participate in a proceeding assigned to a panel or

in a reconsideration assigned to a panel of members.

81a

38 U.S.C. § 7107 (1994) provides:

§ 7107. Appeals: dockets; hearings

(a)(1) Except as provided in subsection (f),

each case received pursuant to application for review

on appeal shall be considered and decided in regular

order according to its place upon the docket.

(2) A case referred to in paragraph (1) may,

for cause shown, be advanced on motion for earlier

consideration and determination. Any such motion

shall set forth succinctly the grounds upon which it is

based and may not be granted unless the case involves

interpretation of law of general application affecting

PUIFSDMBJNTPSGPSPUIFSTVGĀDJFOUDBVTFTIPXO

(b) The Board shall decide any appeal only

after affording the appellant an opportunity for a

hearing.

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

ĀOBMEFUFSNJOBUJPOPGUIFDMBJN

(d)(1) An appellant may request that a

hearing before the Board be held at its principal

location or at a facility of the Department located

XJUIJO UIF BSFB TFSWFE CZ B SFHJPOBM PGĀDF PG UIF

Department.

(2) A hearing to be held within an area served

CZBSFHJPOBMPGĀDFPGUIF%FQBSUNFOUTIBMM FYDFQUBT

provided in paragraph (3)) be scheduled to be held in

the order in which requests for hearings within that

area are received by the Department.

82a

(3) In a case in which the Secretary is aware

that the appellant is seriously ill or is under severe

ĀOBODJBM IBSETIJQ B IFBSJOH NBZ CF TDIFEVMFE BU B

time earlier than would be provided for under

paragraph (2).

(e)(1) At the request of the Chairman, the

Secretary may provide suitable facilities and

equipment to the Board or other components of the

Department to enable an appellant located at a

GBDJMJUZXJUIJOUIFBSFBTFSWFECZBSFHJPOBMPGĀDFUP

participate, through voice transmission or through

picture and voice transmission, by electronic or other

means, in a hearing with a Board member or members

sitting at the Board's principal location.

(2) When such facilities and equipment are

available, the Chairman may afford the appellant an

opportunity to participate in a hearing before the

Board through the use of such facilities and

equipment in lieu of a hearing held by personally

appearing before a Board member or panel as

provided in subsection (d). Any such hearing shall be

conducted in the same manner as, and shall be

considered the equivalent of, a personal hearing. If the

appellant declines to participate in a hearing through

the use of such facilities and equipment, the

opportunity of the appellant to a hearing as provided

in such subsection (d) shall not be affected.

(f) Nothing in this section shall preclude the

screening of cases for purposes of-(1) determining the adequacy of the record for

decisional purposes; or

(2)

the

development,

attempted

development, of a record found to be inadequate for

decisional purposes.

83a

38 U.S.C. § 7102 (2017) provides:

§ 7102. Assignment of members of Board

(a) 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

ĀMFE 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

SFQPSU TIBMM DPOTUJUVUF UIF ĀOBM EJTQPTJUJPO PG UIF

proceeding by the member or panel.

(b) A proceeding may not be assigned to the

Chairman as an individual member. The Chairman

may participate in a proceeding assigned to a panel or

in a reconsideration assigned to a panel of members.

10.

38 U.S.C. § 7107 (2017) provides:

§ 7107. Appeals: dockets; hearings

(a) DOCKETS.--(1) Subject to paragraph (2),

the Board shall maintain at least two separate

dockets.

(2) The Board may not maintain more than

two TFQBSBUF EPDLFUT VOMFTT UIF #PBSE OPUJĀFT UIF

Committee on Veterans’ Affairs of the Senate and the

Committee on Veterans’ Affairs of the House of

Representatives of any additional docket, including a

KVTUJĀDBUJPOGPSNBJOUBJOJOHTVDIBEEJUJPOBMEPDLFU

(3)(A) The Board may assign to each docket

maintained under paragraph (1) such cases as the

84a

Board considers appropriate, except that cases

described in clause (i) of subparagraph (B) may not be

assigned to any docket to which cases described in

clause (ii) of such paragraph are assigned.

(B) Cases described in this paragraph are the

following: (i) Cases in which no Board hearing is

requested. (ii) Cases in which a Board hearing is

requested in the notice of disagreement.

(4) Except as provided in subsection (b), each

case before the Board will be decided in regular order

according to its respective place on the docket to which

it is assigned by the Board.

(b) ADVANCEMENT ON THE DOCKET.--(1) A

case on one of the dockets of the Board maintained

under subsection (a) may, for cause shown, be

advanced on motion for earlier consideration and

determination.(2) Any such motion shall set forth

succinctly the grounds upon which the motion is

based.(3) Such a motion may be granted only--(A) if

the case involves interpretation of law of general

application affecting other claims; (B) if the appellant

JTTFSJPVTMZJMMPSJTVOEFSTFWFSFĀOBODJBMIBSETIJQPS

$ GPSPUIFSTVGĀDJFOUDBVTFTIPXO

FOR CASES ON A DOCKET THAT MAY INCLUDE A

HEARING.-(1) For cases on a docket maintained by the

Board under subsection (a) that may include a

hearing, in which a hearing is requested in the notice

of disagreement, the Board shall notify the appellant

whether a Board hearing will be held-(A) at its principal location; or

(B) by picture and voice transmission at a

facility of the Department where the Secretary has

85a

provided suitable facilities and equipment to conduct

such hearings.

(2)(A) 6QPOOPUJĀDBUJPOPGB#PBSEIFBSJOHBU

the Board's principal location as described in subparagraph (A) of paragraph (1), the appellant may

alternatively request a hearing as described in

subparagraph (B) of such paragraph. If so requested,

the Board shall grant such request.

(B) 6QPO OPUJĀDBUJPO PG B #PBSE IFBSJOH CZ

picture and voice transmission as described in subparagraph (B) of paragraph (1), the appellant may

alternatively request a hearing as described in

subparagraph (A) of such paragraph. If so requested,

the Board shall grant such request.

(d) SCREENING OF CASES.--Nothing in this

section shall be construed to preclude the screening of

cases for purposes of--(1) determining the adequacy of

the record for decisional purposes; or (2) the

development, or attempted development, of a record

found to be inadequate for decisional purposes.

(e) POLICY ON CHANGING DOCKETS.--The

Secretary shall develop and implement a policy

allowing an appellant to move the appellant's case

from one docket to another docket.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.