Two years ago, the U.S. Court of Appeals for Veterans Claims (Court) issued a decision requiring Board of Veterans’ Appeals (BVA) judges presiding over hearings to (1) tell the veteran what the issues were in his case, and (2) suggest evidence that the veteran could submit that would help him win. The decision was met with some controversy from VA, and the agency actually attempted to amend its regulations following the decision (and did, at least for a short period of time).
Procopio v. Shinseki on the Responsibilities of a BVA Judge
On October 16, 2012, the Court issued a new decision called Procopio v. Shinseki in which it applied the rule it set out two years ago. In this case, the veteran was claiming service connection for several conditions likely related to Agent Orange exposure, but he had not been able to prove definitely that he was exposed to Agent Orange (although the evidence seems to strongly suggest that he was).
The veteran and his service representative presented the case at a hearing before a BVA judge, but the BVA judge took a rather passive role. She listed the issues on appeal before turning the hearing over to the veteran and his representative.
The Court found that the Board judge’s actions were inadequate to satisfy her duty to explain the issues to the veteran and tell him what evidence he might submit to win his case. The Court was clearly troubled by the fact that the judge did not tell the veteran that he would need to submit evidence showing that he was actually exposed to Agent Orange to win his case.
This case reaffirms the Court’s belief that BVA judges must be active participants in hearings and must ensure that a veteran knows exactly the reason why his claim was denied in the past.
It is noteworthy that the Court did not give any weight to the fact that the veteran was represented by a veterans service officer but it seems to suggest that the Court has little faith in veterans service officers to determine what evidence would need to be submitted on a client’s behalf to win cases.