UNITED STATE S COURT OF AP PEALS F OR VETER ANS CL AIMS

N O . 15-0873

WAR R E N B. C O O K , A P P ELLA NT ,

V

. RO B ER T D. S N YD ER , A C T I N G S E CR

E TAR Y OF V E TER

A N S A F F AI R S , A P P ELLEE

.
On Appeal from

the Board of Veterans' Appeals

(Argued August 23, 2016 Decided January 31, 2017)

Kenneth M. Carpenter , of Topeka, Kansas, with whom Francis M. Jack so n , of South Portland, Mai ne, was on the brie f, for the appellant.
Nathan Paul Kirschner , Appellate Attorney, with whom Leigh A. Bradley , General Counsel; Mary Ann Flynn , Assistant General Counsel; and Carolyn F. Washington , Deputy Assistant General Counsel, all of Washington, D.C., were on the brief, for the appel lee.
Before PIETSCH and BARTLEY, Judges , and HAGEL, Senior Judge

. 1

BARTLEY, Judge : Veteran W arren B. Cook appeals through counsel a February 20, 2015, Board of Veterans' Appeals (Board) decision that denied service connection for a lumbar spine disorder and a total disabili ty evaluati on based on individual unemployability (TDIU). Record (R.) at 3-14. Although neither party requested a precedenti al decision, this case was referred to a panel by a Judge of the Court to determine whether a VA claimant who has had a personal hearing before the Board at one stage of appellat e proceedings is barred from receivi ng a hearing before the Board during a subsequent stage of appellat e proceedings, namely, following a remand from this Court

. W e hold that, under 38 U.S.C. § 7107(b), a claimant is entitled upon request to a Board hearing in

Although Judge Hagel was Chief Judge at the tim e of oral argument, he is now a Senior Judge acting in recall 1 status pursuant to an order by the current Chief Judge. See 38 U.S.C. § 7257(b)(1); In re: Recall of Retired Judge , U.S. V ET

. APP

. M ISC

. O RDER

15-16 (Dec. 21, 2016).such circumstances. Accordingly, we will set aside the February 2015 Board decision and remand

the matters for additi onal development and readj udication c onsistentwith this dec ision.

I. FACTS & PROCE DURAL HISTORY Mr. Cook served on active duty in the U.S. Navy from December 1972 to Novem ber 1973. R. at 115. Service medical rec ords ( SMRs) indi cate that he exper ienced low back pain i n August 1973 and was diagnosed with mild muscle pull. R. at 1760. A few weeks later, he again presented with back pain, which had persist ed intermittentl y since ear ly Aug us t. R. at 1761. He denied radicular pain, and mild sprain was again diagnosed. R. at 1761-62. In September 1963, Mr. Cook stated that low back pain had grown worse but his physical examination and x-rays were negative. R. at 1762-63. October 1973 SMRs contain other medical complaints but none relati ng to low back pain. R. at 1763, 1770-72. His separation examination re port showed a normal spine evaluati on. R. at 1755-56. In May 2000, the veteran sought service connection for "disc, laminectomy and discectomy, lumbar spine," which the VA regional of fice (RO) denied in May 2001. R. at 1407-09. It appears th at he did not appeal that decision, and it became final. Mr. Cook sought to reopen the cl ai m in Se pt embe r 20 06, but the RO confirmed and continued its denial in March 2007, finding that th e evidence submitted was not new and material and, therefore, did not justify reopening. R. at 999- 1005. The veteran timely disagreed with that decision, R. at 99 1, and subsequently testified at a September 2007 RO hearing, in which he stated, inter alia, that he was receivi ng Social Security Administr ation (SSA) disabili ty insurance for his back condition. R. at 977-84. The RO continued its denia l, and Mr. Cook appeal ed to the Board. R. at 965- 75. In August 2009, the veteran filed a request for a TDIU. R. at 746-47. After the RO denied entitl ement to TDIU in August 2010, R. at 714-19, the veteran timely disagreed, R. at 712, and the RO continued its deni al, R. at 695-705, which he appealed to the Board, R. at 693-94. In June 2012, the veteran testified at a Board hearing regard in g ba ck problems and their effect on employment. R. at 655-71. The Board m ember observed that the issues on appeal were whether new and material evi dence had been submitted to reopen the c laim of servi ce conne ction for a lumbar spine disorder and entitle ment to TDIU. R. at 656, 668. In October 2012, the Board found that new and material evidence had been submitted to VA and reopened the claim for service
2connection for a lumbar spine condition. R. at 625-29. It remanded that issue, along with

entitlement to TD IU , for addition al de ve lopm ent, including for VA to obtain worker's compensation , SSA, VA, and private treatment records and to provide VA linkage and TDIU opinions. R. at 629- 34

. In Novem

ber 2012, SSA advised VA that it could not provide any medical records becaus e either Mr. Cook did not file for disabili ty benefits or no medical records were obtained in connection with such a cl aim. R. at 603-04. In April 2013, a VA examiner opined that Mr. Cook's spine disabili ty impacted his ability to work but that it was less likely than not that the condition was relate d to servic e. R. at 573-90. The RO continued to deny service connection for a lumbar spine condition and entitl ement to TDIU in a Novem

ber 2013 Supplementa l Statement of the Case (SSOC). R. at 57-67. In a Novem ber 2013 letter submitted thro ugh his current counsel, the veteran stated that he disagreed with the conclusions reached in the SSO C, w ished to continue with his appeal, and "would like to be sche duled for a [Board] video heari ng as soon as possi ble s o thathe can offer further evidence in the form of testimony." R. at 55. A January 2014 RO letter advised that the appeal was being recertified to the Board, that relevant records were being transferre d there, and that the veteran would "recei ve further information by separate letter " regarding any request to personal ly appear before the Board. R. at 47. In February 2014, the Board issued a decision denying service connection for a lumbar spine disorder and entitl ement to TDIU. R. at 33 -4 2. Therein, the Board acknowledged the veteran's request for a he ar ing to submit additional evidence but denied it because he had already been afforded a Board hearing and, therefore, no further hearing was neces sary. R. at 34. Mr. Cook appealed to the Court, which, in October 2014, granted the parties ' joint motion for remand; the basis for the remand was the Board's failure to address a positive private linkage opinion. See R. at 4-5. In Novem

ber 2014, the veteran again asked for a travel Board hearing at th e RO so that he could "present [] additional evidenc e in the form of [ his] testimony." R. at 17. In the February 2015 decision on appeal, the Board ag ai n de nied service connection for a lumbar sp in e disor der and entitl ement to TDIU based thereon, finding that the evidence did not establi sh a link between the current spine disorder an d se rv ic e or demonstrate continuity of symptom s. R. at 3-14. The Board noted that

3the [v]eteran requested a hearing in Novem ber 2013 so he could present "further evidence." He again requested a hearing in Novem ber 2014. "A hearing on appeal will be granted i f an appellant, or an appel lant 's re pr esentati ve act ing on his orher behalf, expresses a desire to appear in person." 38 C.F .R. § 20.700(a) (emphasis added). The [v]eteran was afforded a Board hearing in June 2012. He also presented testimony before the RO in September 2007. The transcr ipts have been associate d with the record. As the [v]eteran has been afforded a Board hearing, no further hearing is necessary. R. at 4. This appeal foll owed.

II. PARTIES' ARGUMENTS Mr. Cook argues that the Board erred in denying his requests for a Board hearing following remand. Appellant's Brief (Br.) at 5-10. Specifically, he contends that, because VA benefits are a

2 protecte d property in te re st, the Board's denial of a hearing following remand violates his constitut ional due proc ess r ight to be hear d at a meaningful time and i n a meaningful manner. He further contends that, had he been allowed a subsequent hearing, he would have testified that SSA incorrec tly reported that he did not file for dis ability benefits and that , even if SSA was no longer in possession of the medical records he submitted in connection with such claim, those records should be availabl e via the National Archives; he also argues that he would have provided evidence

co nc erning the e xistence of such records. Id. at 9-10. The Secre tary responded that the ve ter an 's due process argument should be reject ed because he has not shown that he was prejudice d by the denial of a second hearing before a Board mem ber. Specifically, the Secretary argues that Mr. Cook could have advised the Board at any time in writing via counsel that SSA' s response was erroneous but failed to do so. Sec retary's Br. at 7- 9. On March 7, 2016, the Court ordered the parties to submit supplemental memoranda of law addressing whether there are bases in regulati on or other non-constitutional authority for answering this question. Mr. Cook responds that "[a] re vi ew of the applicabl e VA regulati ons concerning hear ings reveals no express limitation imposed on a veteran's right to a hearing." Appel lant 's Supplemental Memorandum of Law (Supp. Memo.) at 2. He specificall y argues that the indefinite

He also argues that the Board erred in relying on an inadequate April 2013 VA opinion to de ny se rv ic e 2 connection fo r a lumbar spine disability, in denying TDIU following its erroneous denial of service connection for a lum bar spine dis ability, and in failing to apply the benefit of the doubt. 4articl e "a" in § 20.700(a) does not limit a claimant to one hearing regardle ss of the number of times

the claim is before the Board and that the Board erred in assessing the question under the standard of whether a hearing was "n ec es sary." Id. at 6. The language of VA regulati ons, he asserts , is unambiguous, and the text and structur e of the VA regulati ons clearl y entitl e him to a post-remand Board hearing. Id. at 7-10. 3 The Secretary responds that neither statute nor regulati ons ent it le a claimant to a Board hearing in this situati on. He first states that the indefinite articl e "a" usually connotes the singular and that both the relevant statute , 38 U.S.C. § 7107(b) ("The Board shall decide any appeal only after affording the appellant an opportunity for a hearing.") , and regulati ons in part 20 of title 38 of the Code of Federal Regulat io ns pertaini ng to Board hearings use the indefinite articl e "a." Secretary's Supp. Memo. at 1-6. He further notes that specific regulati ons permit motions for new he ar ings only in certai n circumstances not implicated here. Id. at 6-7. Thus, according to th e Secretary, there is no ambiguity in the language of the statute or the relevant regulati ons. Id. at 8-11. Alternati vely, the Se cre tar y argue s that, even if the pertinent statutory and regulatory language could be consi dered ambiguous, his in te rp re tation is e ntitle d to deference. Id. at 11. Final ly, he asserts that the veteran's interpr etation of the regulati ons as requiri ng the provision of additional Board hearings on request would lead to "absurd results " in that there are currentl y thousands of requests for Board hearings pending and, even if no new hearings were requested, it is projecte d to take five years to clear the current backlog of Board hearing requests. Id. at 12. Adding additional hearings per cl ai mant to this, the Secretary contends, would intoler ably burden the system and violate the general rule that agencies are entitl ed to discret ion in implem enting their own procedures. Id. at 12- 14. In reply, Mr. Cook argues that the language of the statute and regulati ons, when read in the context of the VA benefits system as a who le , unambiguously provides for an additional Board hearing in this situati on; that the Secretary's interpr etation is not claimant friendly; and that, because the Board must decide a case anew following a remand, a claimant sh ou ld be enti tled to the opportunity for a pos t-remand hearing. Appell ant's Reply Supp. Memo. at 1-8.

Although the veteran frames the question presented as whether a claim ant m ay have a limitless num ber of 3 Board hearings upon request, that question is not at issue in this case, where the veteran specifically requested a single Board hearing following aremand from this Court for the purpose of submitting additional evidence. R. at 17.

5III. ANALYSIS A. Background of Board Hearings Our starti ng point is the relevant statute , 38 U.S. C. § 7107(b)

. Before analyzing section 7107(b), however, it is useful to briefly survey the background of that provision and the history and role of the pers onal heari ng in Board adjudic ations. A claimant's right to a personal hearing before the Board has long been guaranteed by VA. At least as early as the W orld W ar II era, well prior to judicial review, Board rules provided that, 4 "[a]fter all availabl e evidence in supp ort of an appeal has been submitted to the office of original jurisdi ction and the case is certified to the Board

. . . , a hearing will be al lowed, if desired by the claimant or his re presentat ive." R ULE S OF P R

AC T I C EOFTHE B OAR DOF V E T ER

A N S ' A P P EAL S R. 14 (1941) (attac hed to Secretary's Supp. Memo., Appendix 2 at 3). This rule was slightl y revised and published in the Code of

Federal Regulations in 1964, specifying that "[a] hearing on appeal shall be granted where a claimant or his represent ative expresses a desire to appear in person." 38 C.F.R. § 19.133(a) (1965). At that time, a statute mandated that the Board maintain a hearing docket and that the Board mem

ber or membe rs who held the hearing were to make the final decision on the claim, but the statute did not specify an individual right to a personal hearing. See 38 U.S.C. § 4002 (1958). In 1988, Congress amended 38 U.S.C. § 4004(a)–which stated that, "All questions on claims involving benefits under the laws administered by the [VA] shall be subject to one review on appeal to the Administr ator. Final decisions on such appeals shall be made by the Board."–by adding the following sentences: "The Board shall decide any such appeal only after affording the claimant an opportunity for a hearing. Decisions of the Board shall be bas ed on the entire record in the proceeding and upon considerat ion of all evidence and material of record and applicabl e provisions of law an d regulati on." VJRA, Pub. L. 100-687, § 203(a), 102 Stat. 4105, 4110-11 (1988). Th e accompanying Senate Veterans' Affairs Committee report stated that this amendm ent "would codify

a right currentl y provided by [§ 19 .1 33 (a)] to an opportunity for a hearing before the [Board]. In the Committee's view, the right to a hearing is so fundam ental to fair proceedings that it should be

Judicial review wa s no t available to veterans who were denied benefits at the agency level until Congress 4 passed the Veterans' Judicial Review Act (VJRA) in 1988. See Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). 6elevated to the level of a statutory guarantee." S. REP

. N O

. 100-418, at 34 (1988). After several nonsubstanti ve recodificat io ns and redesignat ions within title 38 of the U.S. Code, the statutory provision came to r es t at it s curr ent pl ace, 38 U.S.C. § 7107(b)

. SeePub. L. 102-40, § 402(b) (1), 105 Stat. 187, 238-39 (1991) (renumbering § 4004(a) as § 7104(a) ); Pub. L. 103-271, § 7(a)(1) , (b)(1), 108 Stat. 740, 742-43 (1994) (removing the third sentence from section 7104(a) and inserti ng it at amended secti on 7107(b)). Congress's decision to statutor ily codify that right reflected the important procedural nature and the cri tical r ole of Board hearings i n the VA benefits system. As previously expl ained: The purpose of VA hearings is to permit the claimant to introduce into the rec ord, in per son, pertinent evidence and ar guments with r espect to hi s [or her] cla im, and testimony from the claimant or witnesses under oath or affirm ation. Although the Board hears only cases on administrative appe al , it reviews matters de novo and functions as a factfinder in a mann er similar to that of a trial court. Unlike a tradit ional judicial appeal whe re re view is of the record, the opportunity for a personal hearing before the Board is significant because it is the [claimant's ] one opportunity to personall y address those who will find facts, make cr ed ib ility determinations, and ultimately render the final Agency decision on his [or her] claim. Our caselaw has acknowledged the importance of a hearing, and the sworn testimony rendered during it, by holding that the Board must consider and provide adequat e reasons or ba ses for its r ejecti on of any sworn testimony. The signi ficance pl ac ed on a veteran's s worn tes timony is further demonstrated by the standard under which the Court reviews th e Board's assessment of a witness's cre dibility. Such credibil ity determinations are factual findings that the Court reviews under the "clear ly erroneous" standard. It is well establi shed that the assessment of the credibil ity of the veteran's sworn testimony is a function for the [Board] in the first instance and [ ] it is not for this Court to f ind .

. . that that sworn testimony

. . . is credible

. One obvious reason the Court defers to the Board's assessment of a witness's credibil ity is that the Board has had th e op po rtunity to observe the witness firsthand, wher eas the Court ha s not. Arneson v. Shinseki , 24 Vet.App. 379, 382-83 (2011) (citat ions and most internal quotation marks omitted). Moreover, the personal hearing permits a Board mem ber to ask questions, explore issues then deemed relevant , and clarify witness statements. See 38 C.F.R. § 20.700(c) (2016) (providing that all parties to a hearing may a sk questions and follow-up questions) ; cf. Procopio v. Shinseki , 26 Vet.App. 76, 79-83 (2012) (finding that a Board m ember did not conduct an adequate hear ing, in part, bas ed on her failure to ask anyquestions)

.

7In addi tion to pr oviding hearing officers op po rtunities to make cr edibili ty det erminations,

ask relevant questions, and generall y associat e otherwise anonymous claims for benefits wi th individual claimants, personal hearings before the Board can serve as fora in which claim ants can receive information necessary for the fair and efficient develop ment of their claims. A Board

mem ber conducting a hearing must "'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 po sition .' " Br

ya nt v. Shinseki , 23 Vet.App. 488, 492 (2010) (per curiam) (emphasis omitt ed) (quoting 38 C.F.R. § 3.103(c)(2)). Finally, in proposing the statutory right now codified at sectio n 71 07 (b) , the Senate Veterans' Affairs Committee observed a correlation between personal hearings before th e Board and successful claims. In fiscal year 1987, 19.5% of the claims heard personall y by a Board mem ber in W ashington, D.C., were granted, and 30 .6 % of cla ims heard by a Board mem ber at a travel hearing were granted. S. REP

. 100-418, at 39. The overall Board allowance rate in fiscal year 1987

was 12. 8%. Id. Although the Senate Committee acknowledged that such statis tics were not conclusive, it neverthel ess observed that they were "very suggest iv e th at a personal appearance before the Board makes a significant difference i n achieving favorable resoluti on of a claim." Id. In deed, when asked during testimony on this provision why ve terans service organizat ions found it desir able to have Boar d hearings, then-Board Chairman Kenneth Eaton responde d: It is always better in any case to have a personal hearing bef ore the people who are deci ding. There are exceptions to that; but generall y, if you have a good ca se an d you have a witnes s who is at all credible , you are better off facing those Board mem bers and tel ling them all about i t.
Id. at 46. B. Standard of Review and Deference The interpretat ion of a statute is a question of law that the Court reviews de novo. Sowers

v. McDonald, 27 Vet.App. 472, 479 (2016); see Lane v. Principi , 339 F.3d 1331, 1339 (F ed

. Ci r. 2003). "Statutory interpr etation begins with the language of the statute , the plain meaning of which

we derive from its te xt and its structur e." Arneson , 24 Vet.App. at 383 (internal quotation marks omitted). "Statutory terms are interpr eted 'in the ir conte xt and with a view to their place in the overall statutory scheme.' " Holle v. McDonald, 28 Vet.App. 112, 116 (2016) (quoting Tyler v. Cain ,

8533 U.S. 656, 662 (2001)); see also Gade v. Nat'l Solid Wastes Mgmt. Ass'n , 505 U.S. 88, 99 (1992)

("We must not be guided by a single sentence or mem ber of a sentence, but look to the provisions of the whole law."). In interpr eting section 7107(b), we must apply the general f ramework set forth in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. , 467 U.S. 837 (19 84 ). Se e Heino v. Shinseki , 683 F.3d 1372, 1377 (Fed. Cir. 2012). At step one , the Court must determine "whether Congress has directl y spoken to the precise quest ion at issue." Chevron , 467 U.S. at 842. In this
case, the question at issue is whether, pursuant to section 7107(b), a VA claimant who has received

a personal hearing at one stage of appellat e proceedings before the Board may receive, upon request,

a Board hearing during a subs equent stage of appellat e proceedings before the Board, namely, following a remand from this Court. "If the intent of Congress is clear, that is the end of the matter." Id. at 842-43. However, if "Congress has not directl y addressed the precise question at issue," under st ep tw o th e Court must determine if the agency's implem enting regulati on is "based on a permissible constru ct io n of the statute ." Id. at 843. If it is, then we must, as a general rule, give controll ing weight to the agency's regulatory inte rp ret ation of the statute unless it is arbitr ary, caprici ous, or manifestly contrary to the statute

. Id. at 843-44; see Nat'l Org. of Veterans Advocates, Inc. v. Sec'y of VA , 809 F.3d 1359, 1364 (Fed. Cir. 2016); Breniser v. Shinseki , 25 Vet.App. 64, 72 (2011). Because both parties advance gramm atical ly plausible readings of the sentence, "[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing," we cannot say that the statute clearl y addresses whether a VA claimant who has had a personal hearing before the Board previously is entitl ed upon request to a Board hearing following a remand from this Court. The Secretary asserts that the statute 's use of the indefinite articl es "an" and "a" plainly indicate that only one Board hearing opportunity per claim must be provided, regardle ss whether the claim is at

a different stage in proceedings, such as upon return to the Board following a remand by the Court. Secretary's Supp. Memo. at 10. Mr. Cook, also citing the use of indefinite articl es , ar gu es the opposite. Appell ant's Supp. Memo. at 3-5. Notwithstanding the parties ' positions, the statute 's language is simply not clear on this point. The provision's text does not unambiguously specify that a claimant is limited to one Board hearing irrespe ctive of the number of remands he or she is granted, nor does it unambiguously specify that
9a claimant is entitl ed to a Board hearing up on re qu es t each time remand is granted. In short, the

Court finds secti on 7107(b) ambiguous with respectto the quest ion at iss ue. Because "Congress has not directl y addressed the pr ec ise question at issue," the next step in the Court's analysis would be to determine whether VA' s implem enting regulati on permissibly construes the statute and, if so, defer to that construct ion. Chevron , 467 U.S. at 843; Breniser , 25 Vet.App. at 72. The Secretary urges this deference. He points to hi s regul ation at 38 C.F.R. § 20.700(a)–which states that "[a] hearing on appeal will be granted if an appellant , or an appellant 's represent ative acting on his or her behalf, expresses a desire to appear in person"–and notes that, like the statute , it uses the "singular " indefinite articl e "a." Secretary's Supp. Memo. at 5, 10. Thus, he 5 contends, he ha s permissibly construed section 7107(b) as permitting a claimant only one opportuni ty for a Board hearing. For two relate d reasons, however, the Court concludes that Chevron deference is notwarranted her e. First, neither § 20.700(a) nor any other VA regulati on resolves the ambiguity in the statute

. The premise underlying Chevron deference is that, where a statute is ambiguous, "the administering agency has issued a reasonabl e gap- filli ng or ambiguity-resolvi ng regulati on." Sears v. Principi , 349 F.3d 1326, 1332 (Fed. Cir. 2003). But "where the regulati on identified by the agency does not speak to the statutory ambiguity at issue, Chevron deference is inappropri ate." Lopez v. Terrell , 654 F.3d 176, 182 (2d Cir. 2011); accord Ali Saleh Kahlah al-Marri v. Davis , 714 F.3d 1183, 1188 n.2 (10th Cir. 2013); see Christense n v. Harris County , 529 U.S. 576, 587- 88 (2000) (conc luding that Chevron deference was not warranted where the agency regulati on did "not address" the dispositi ve issue in the case); cf. Mulder v. McDonald, 805 F.3d 1342, 1345 n.1 (Fed. Cir. 2015) (stati ng that deference to an agency's int erpretation of its own regulati on is not due when the regulati on "essenti ally 'parrots' the statutory language" by doing "nothing to interpr et or elaborat e" it). Here, the regulati ons cited by the Secretary all contain the same basic ambiguous language that, although not phrased identica lly to the statute , do nothing to clarify the ambiguity in section 7107(b)

as to whether a VA claimant who has had a personal hearing before the Board on an appeal is

He also cites the fact that several other provisions in part 20 of title 38 of the Code of Federal Regulations also 5 refer to "a hearing," " a new hearing," or " a personal hearing." Secretary's Supp. Memo. at 5-7. 10entitl ed upon request to another Board hearing following a Court rem and. Therefore, the Court is

under no obligat ion to accor d deference to the Secretary's interpretation under Chevron step two. Second, and relate d to the first point, § 20.700(a) w as prom ulgated before section 7107(b)

was enacted–inde ed, the statute was enacted to codify the regula to ry he aring rights before the Board. See supra Part III.A. Chevron deference is appropriat e only where Congress has "delegat ed authority to the agency generall y to make rules carrying the for ce of law, and

. . . the agency interpr etation claiming deference was promulgated in the exercise of that authority." United States v. Mead Corp. , 533 U.S. 218, 226-27 (2001). Although Congress ha s delegate d such authori ty to the Secretary, see 38 U.S.C. § 501(a), the Secretary has not us ed th at authority to clarify the ambiguity in section 7107(b). Instead he relies on § 20.700(a), which predates the statute and, thus, cannot possibly have been promulgated to interpr et it. See, e.g. , Pub. Citizen, Inc. v. U.S. Dep't of Health & Human Servs. , 332 F.3d 654, 659 (D.C. Cir. 2003) ("[R]egulations cannot provide a basis for deferring to the [agency's] interpr etation of the meaning of the subsequently enacted [statutory] phrase.") ; see also Creekstone Farms Premiu m Beef, LLC v. Dep't of Agric. , 539 F.3d 492, 499 (D.C. Ci r. 2008) (refusing to accord Chevron deference to an agency's interpr etation of a statute when the "statutory language . . . did not existwhen it first adopt ed its re gulation" ). Where a court concludes that Chevron deference is inapplicable, the court proceeds with the ta sk of st atutory interpr etation guided by the principl es of Skidmore v. Swift & Co. , 323 U.S. 13 4 (1944). See Cathedral Candle Co. v. U.S. Int'l Trade Comm'n , 400 F.3d 1352, 1365 (Fed. Cir. 2005);

see also United Techs. Corp. v. United States , 315 F.3d 1320, 1321-22 (Fed. Cir. 2003) (explaini ng that, when Skidmore deference is warranted, a court engages in statut ory in te rpr etation and its "analysi s proceeds de novo"); see also Pub. Citizen, Inc. , 33 2 F. 3d at 659 (applying Skidmore deference to a r egulation pr omulgated before the enactment of the statut ory language atissue). In Skidmore , the U.S. Supreme Court explained the proper deference owed unde r th ese circumstances: W e consider that the rulings, interpr etations and opinions of the Administr ator under this Act, while not controll ing upon the courts by reason of their auth or ity, do constitut e a body of experience and informed judgment to which courts and litigants may properly resort for guidance. The weight of such a judgment in a particul ar case will depend upon the thoroughness evident in its considerat ion, th e va li dity of its reasoning, its consistenc y with earlier an d lat er pro no un cements, and all those factors which give it powerto persuade, i f lacking power to control.
11323 U.S. at 140. Skidmore requires adoption of the Secretary's interpr etation to the extent that it has

the "power to persuade" the Court of its propriety. Sharp v. Shinseki , 23 Vet.App. 267, 273 (2009). W e conclude th at the Secretary's interpr etation lacks such power. As explained below, a VA claimant who has had a Board hear ing dur ing one stage in the appel late proceedings is notbarr ed from rec ei vi ng a Board hearing when the claim i s at a different stage in the proceedings, namely, following remand from this Court; and the Secretary's arguments to the contrary are not persuasive

. C. Analysis of Section 7107(b) Having establi shed that Skidmore , ra th er than Chevron , applies, the Court must now determine the meaning of section 7107(b), giving due considerat ion to the parties ' arguments to the extent that they are persuasive

. The parties focus their attenti on on the final phrase of section 7107(b), "an opportunity for a hear ing." "The pl ain meaning of a t erm begins with i ts or dinary , co nt emporary, common meaning," and "[i]t is c ommonplace to cons ult dictionar ies to as certai n a term's ordinary meaning." Nielson

v. Shinseki , 23 Vet.App. 56 , 59 (2009) (internal quotation marks and citati ons omitted). It is true that the indef

in ite articl es "a" and "an" can mean "[o]ne; some particul ar." WEB S T ER' S N EW INTER N ATI O N AL D I C T I ON

AR Y O F THE EN GL I S H L A N G U AGE 1 (2d ed. 1948) [hereinafter WEB S TER' S ];

see, e.g. , Sharp v. Shinseki , 23 Vet.App. 267, 273 (2009) (concluding that "the or di nary, contemporary, common meaning—or plain meaning—of ' a disabili ty rating' is any single decision rating a veteran's disabili ty" (emphasis added)). But, depending on context, those articl es can mean "[a]ny; each; every," as in " a man who will do that ought to be arrest ed." WEB S T ER' S at 1; see, e.g. , United States v. Alabama , 778 F.3d 926, 931-33 (11th Cir. 2015) (discussi ng the different usage of "a" and "an"). Thus, confining our analysis to the phrase "an opportunity for a hearing" will not resolve this dispute

. As the U .S. Court of Appeals f or the Federal Circuit (Federa l Circuit) observed in holding that the plain langua ge of the statute authorizi ng the Secretary to pay to a veteran "a clothing allowance" permitted him to grant a request for a second cloth in g allowance, "it is impossible to determine the proper boundaries of the Secretary's authority pursuant to [the statute ] with reference only to the singular nature of the indefinite articl e 'a.' Instead, a more thorough considerat ion of the statutory prov is io n as a whole is required to provide the appropriat e context." Sursely v. Peake ,

12551 F.3d 1351, 1356 (Fed. Cir. 2009). The same is true here. See Holle , 28 Ve t. App

. at 116;

Arneson , 24 Vet.App. at 383. Reading section 7107(b) as a whole does not eliminate ambiguity either. It states that "[t]he Board shall decide any appeal only after affording the appellant an opportunity for a hearing." The general dictionary definition of "decide" is "to render judgment concern in g; to determine." WEB S T ER' S at 680. This meaning is likewise reflected in the definition of the noun "decisi on." See id. (defining "decisi on" as "[a]ct of deciding"; "a determination or result arrived at after considerat ion, as of a question"; and "conclusi on"). The word "any" can mean "[o]ne indifferently out of a number" or "[o]ne or all," and may "sometimes [be] equivalent to the indefinite articl e." Id. at 121. "Appeal" generall y connotes "[a] proceeding undertaken to have a decision reconsider ed by

a higher authority." B LAC K' S L AW D IC T I ON AR Y 117 (10th ed. 2014); accord B LACK' S L AW D I C T I ON

AR Y 88 (5th ed. 1979) (latest edition at the time the VJRA was enacted in 1988); see also WEB S T ER' Sat 129. As with the use of the indefinite articl es, this l anguage i s not conclusive as t o the provision's meaning, although the phrase as a whole, "decide any appeal only after affording the appell an t an opportunity for a hearing," appears to favor the veteran's interpr etation in that it suggests that the Board must provide a hearing each or any time an appeal is before it for a decision. What is clear from the language of the statute is that the Board may not render judgment on a claim

unti l it has provided a claimant at least one opportunity for a hearing; the language is ambiguo us

as to whether the Secretary must provide that opportunity more than once, upon request, if a claim is again before the Board for decision, a circumstance that may occur multiple times over the course of appellate pr oceedings. To discern the meaning of the language of section 7107(b), the Court must seek guidance in i ts c ontext and with a view t o it s pla ce i n the statutory scheme. See Holle , 28 Vet.App. at 116. As the highest court in the land has observed, the VA adjudicat ory process "is designed to function throughout with a high degree of informality and solicitude for the claimant." Henderson v. Shinseki , 562 U.S. 428, 431 (2011). W e have previously declar ed that "[t]he entire thrust of the VA' s nonadversari al claims system is predicat ed upon a structur e which provides for notice and an opportunity to be heard at virtuall y every step in the process ." Thurber v. Brown , 5 Vet.App. 119, 123 (1993) (e mpha si s ad ded). To aid a claimant in the development of his or her claim, a Board

mem ber conducting a hearing must "'explain fully the issues and suggest the submission of evidence
13which the claimant may have overlooke d and which would be of advantage to the claimant's

position.'" Procopio , 26 Vet.App. at 79-81 (quoting 38 C.F .R. § 3.103(c)(2) ); accord Bryant , 23 Vet.App. at 492. When section 7107(b) was enacted, Congress ended the "splendid isolati on" in which VA' s administrat ive decisions, unlike those of other Federal agencies, were "insulat ed from judi ci al review." Gardner v. Brown , 5 F.3d 1456, 4363 (Fed. Cir. 199 3)

. Pr ior to 1988, a veteran whose claim was reject ed by the Board was generall y unable to obtain further review. Henderson , 562 U.S. at 432. The VJRA establi shed this Court and vest ed it with the power to "affirm, modif y, or reverse

a decision of the Board or to remand the matter , as ap propriat e." VJRA, § 301, 102 Stat. at 4113 (now codified at 38 U .S.C. § 7252(a)). The VJRA f urther authori zed the Court to decide relevant questions of l aw, set aside factual findi ng s th at ar e "clear ly erroneous," and compel act ion by the Secretary that is "unlawfully withheld." Id. at 4115 (now codified at 38 U.S.C. § 7261(a)). Implicit in this new judi cial re view regime was that the Court coul d setaside Board deci sions and remand appeals, more than once if necessary. See Kutscherousky v. West , 12 Vet.App. 369, 372 (1999) (per curiam order) (recogniz ing th at "r eg ulations issued prior to the advent of judicial review must be read in light of the availabi lity of judicial rev ie w an d the caselaw that it produces" (internal quotation marks omitted)). Given thi s structure, it is pl ain that the focus of a c laim may ch an ge or evolve between an initia l Board hearing on the claim and Board considerat ion of that claim following remand from the Court, whi ch often directs additional development or directs the Board's attenti on to statute s, regulati ons, directi ves, or facts it earlie r may have missed. Rea di ng section 7107(b) as barring a claimant who has pre viously testified at aBoard hearing from rec eiving a Board hearing during a subsequent stage of appellat e proceedings–particul arly following a remand from this Court–would be neither soli ci to us of a claimant nor productive of informed Board decisionmaking. Indeed, subse cti on (b) of § 20.700 states that the purpose of a Board hearing "is to receive argument and testimony relevant and material to the appellat e issue." 38 C.F.R. § 20.700(b). Gi ve n th at the appellat e issue m ay change or evolve as a claim wends its way through the VA claims and appeal process set forth in 38 U.S.C. §§ 5104 and 7105, and the judicial review process set forth in 38 U.S.C. §§ 7252 and 7292, the directi ve that the purpose of a Board hearing is to receive argument

14and testimony relevant and material to the appellat e issue suggests a liberal interpr etation of section

7107(b) thatwould not limit an appell ant to a si ngle heari ng over the cour se of an appeal. Consider, for example, the facts of this case. When Mr. Cook testified at his June 2012 Board hear in g, the issues on appeal were whether new and material evidence had been submitted to reopen the claim of service connection for a lumbar spine disorder and entitl ement to TDIU. R. at 656, 668

. Aft er th at hearing, the Board determined that new and material evidence had been submitted and reopened the lumbar spine disordercla im, but remanded that matter and the matter of entitl ement to TDIU for additional development and procurement of medical opinions, without adjudicat ing the merits of those matters. R. at 62 5-29 (orderi ng that VA obtain worker's compensation, SSA, VA, and private tr eatment records and, thereafter , VA linkage and TDIU opinions). By the time the veteran requested a Board hearing in Nov ember 2014, following this Court's October 2014 grant of the parties' joint m otion for rem and, the issue on appeal had shifted to whether the evidence of record demonstrated service connect ion for a lumbar spine disabili ty, specificall y, whether current back problems were linked to service or to post-service injurie s. See R. at 12. At the time he requested a second Board hearing, Mr. Cook asserte d that he had relevant evidence to offer in support of that issue. R. at 17. Reading the statute as prohibiti ng a veteran from testifying at a Board hearing where the issue on appeal has changed from one issue with distinct legal criter ia to another, see generally Shade v. Shinseki , 24 Vet.App. 110 (2010), is counter to the stated purpose of a hearing and inconsist ent with "the principl es underlying this uniquely pro-clai mant system," Golz v. Shinseki , 590 F.3d 1317, 1321 (Fed. Cir. 2010). In the face of the f

oregoing, the Court is not persuaded by the Secretary's arguments to the contrary. See Skidmore , 323 U.S. at 140; Sharp , 23 Vet.App. at 273. The Court holds that, taken together, the language of current section 7107(b), its place in the ov er al l statutory and regulatory scheme, the unique nature of the VA adjudicat ion process, and the consequences of the jud ici al

re view rubric enacted with the statute compel the conclusion that section 7107(b) is pro pe rl y interpr eted as allowing a VA claimant th e ri ght to request and receive a Board hearing for the purpose of submitting additional evidence after a remand fr om th e Court, even if he or she previously r eceived a hearing before the Boar d at another stage of appellate proceedi ngs. Although the Secretary cites regulati ons relati ng to Board hearings as ev idenc e of his thorough considerat ion of the issue on appea l, th e Court is not persuaded that these regulati ons 15support his interpr etation of section 7107(b). Section 20.700(a) parrots the statute 's ambiguity and

must be interpr eted the same way as the statute

. See Chr is te nsen , 529 U.S. at 587-88; Lopez , 654 F.3d at 182; see also Mulder , 805 F.3d at 1345 n.1. The Secretary cites other regulations that specify that a claimant may request—and the Secretary may permit—a replacement hearing where (1) a hearing had not been fully recorded or where transcr ipts of a hearing are lost or destroyed and the recording is no lon ge r av ai lable, see 38 C.F.R. § 20.717 (2016); or (2) where, after a hearing before one Board mem

ber, a different Board mem ber is assigned to decide an appeal, see Arneson , 24 Vet.App. at 385-86 (interpreting 38 C.F.R. § 20.707). But these regulati ons address a claimant's ability to r eceive a r eplacement hear ing where the original hear ing cannot be relied upon becaus e of equipment failure or misplacement of the transcri pt or where the origi nal heari ng is inadequat e be caus e a Board mem

ber newly assigned to decide an appeal did not partici pate in the claimant's hearing. These regulati ons do not relate to or involve a request for a post-remand hearing aft er a case returns to the Board. M oreover, as di scussed above, § 20.700(b) supports this reading of the statute by acknowledging the need to focus Board hearings on the receipt of evidence and argument that is relevant and material to the appellat e iss ues currentl y before the Board. In short, none of the regulati ons contained in part 20 persuade us that the Secretary's interpr etation of the statute is due deference under Skidmore

. Further, we are not persuaded that the Secretary's currentl y stated interpr etation, that section 7107(b) limits a claimant to only one Board hearing during th e entire course of appellat e proceedings, reflects his considered and consistent position on the question. See Skidmore , 323 U.S. at 140. In Kutscherousky , this Court held that claimants are entitl ed to submit additional arguments and evidence to the Board following remand from the Court. 12 Vet.App. at 372 (citi ng 38 C.F.R. § 20.1304). This was in response to the Secretary's motion to recall mandate and modif y language in the parties ' joint motion for remand to reflect that the veteran on remand would be free to submit such argument and evidence. Id. at 370. The Court addit ionally hel d that a cl aimant m ay receive

a Board hearing following a Court remand. Id. at 372. The Se cr et ary did not appeal or seek 6

Because neither party at the tim e raised the issue of a post-rem and Board hearing, and because discussion of 6 the m atter was not necess ary to the Court's decision on the issue presented, the portion of the Kutsc he ro us ky ho ld ing addressing this m atter is arguably dicta. See, e.g. , Am. Bank and Trust Co. v. Dallas Cty , 463 U.S. 855, 871 (1983). But, to the Court's knowledge, the Secretary has never registered opposition to the right to a post-rem and Board hearing stated in Kutscherous ky

. 16reconsider ation of the Court's order, which, although based on VA regulati ons, is entirel y consistent

with our reading of the statute

. Put si mpl y, the fact that the Secretary never took issue with this aspect of Kutscherouskybelies the persuasi ve value of his curr ent positi on. Also, the Secretary's position does not give adequate considerat ion to Mr. Cook's asserti on that he requested a Board hearing to submit evidence. R. at 17. Under section 7104(a), enacted with section 7107(b), the Board must make a decision "based upon th e enti re rec ord in the proceeding and upon considerat ion of a ll ev id en ce and material of r ecord." 38 U.S.C. § 7104(a). Limiting a claimant to a singl e Board hearing without regard to the stages of appellat e proceedings that have occurred, especially in the f ace of an asserti on that he or she wishes to submit additional evidence in the form of testimony, is not consistent with the solicit ous guarantee of claim develop ment evident from the specific sections and overall structur e of the VA claims and appeals process. See generally 38 U.S.C. § 5103A (regardi ng VA' s duty to assist a claimant in developing evidence). It is for this rea so n th at we cann ot conclude that the Board error in this case was harmless. See 38 U.S.C. § 7261(b)(2) (requir ing the Court to "t ak e due account of the rule of prejudici al error" ); Wagner v. United States , 365 F.3d 1358, 1365 (Fed. Cir. 2004) ("Where the effect of an error on the outcome of a proceeding is unquantifiable, how ever, we will not speculate as to what the outcome might have been had the error not occurred." ); Arneson , 24 Vet.App. at 389 (finding prejudice when

error "could have altere d the Board's determination[s]"). Mr. Cook repeatedl y stated that he wished to present testimony to the Board to provide additional relevant information. Although the Secretary asserts that prejudici al error has not been shown because Mr. Cook could have submitted such information to the Board at any time in writing , Secretary's Br. at 9, we cannot agree. The argument that the opportunity to submit relevant information in writing is equivalent to the opportunity to present it at a Board hearing cannot be squared with the fact that Congress specifi ca ll y co di fied Board hearing rights bec au se of the unique benefits of that opportunity. See supra Part III.A. In particul ar, in this case a hearing would have provided Mr. Cook the ability to address and respond to any specific Board mem ber questions relati ng to the evidence and testimony he was submitting. In these circumstances, the Court is unable to say that the Board's error here was not prejudici al to Mr. Cook. Having found that the Secretary's arguments do not have persuasive value under Skidmore , the Court also observes that this case implicates the presumption announced in Brown v. Gardner , 17513 U.S. 115, 118 (1994), that any doubtin the int erpretation of a VA statute must be re solved in

favor of a veteran. Applying this pr esumption in the context of its Skidmoreanalysis, the Federal Circuit has stated that, even where the Secretary's asserte d interpr etation of a statute is "plausibl e," adopting an in te rp retati on that is less favorable to the veteran would be appropriat e "only if the statutory language unambiguously" required that less favorable interpr etation. Sursely , 551 F.3d at 1357. Here, the Secretary's interpr etation is not required by the language of section 7107(b) and is clearl y less favorable to veterans than the interpr etation discussed above, namely, that a claimant who received a personal hearing at one stage of appellat e proceedings before the Board is entitl ed, upon request, to a Board hearing following a re mand from this Court. See also Hudgens v. McDonald, 823 F.3d 630, 639 (Fed. Ci r. 20 16 ) (applying Gardner and adopting the veteran's interpr etation of a re gulation as "consist ent with the beneficence inhere nt in the vet erans' benefits scheme"); Trafter v. Shinseki , 26 Vet.App. 26 7, 27 2 (20 13 ) (st ating tha t the Se cre tary's interpr etation of a statute is enti tled to deference except where, inter alia, his "interpretati on is unfavorable to veterans, such that it conflicts with the bene fi ce nc e underpi nning VA' s veterans benefits scheme, and a more liberal construct ion is availabl e that affords a harmonious interpl ay between provisions" ). Last, we address the Secretary's contention that our reading of section 7107(b ) le ad s to absurd results

. This argument is not availing. The Court is not adopting the veteran's reading of the statute , that he is entitl ed to a Board hearing at any time on any issue for any reason, cf. Appellant's Supp. Memo. at 4, 7; instead, we hold that a claimant who received a personal hearing at one stage of appellat e proceedings before the Board is not barred from requesti ng and receivi ng a Board hearing during a separate stage of appellat e proc eedings before the Board, namely, following a remand from this Court

. Al th ough perhaps creati ng some logisti cal problems for the Board, our interpr etation of 7107(b) does not lead to absurd results

. See Chapman v. Higbee Co. , 319 F.3d 825, 832 (6th Cir. 2003); see also Cook v. FDA , 733 F.3d 1, 9 (D.C. Cir. 2013) (noting that "the doctrine of avoiding abs ur d res ults is so rarely applied because" it is so rarely applicabl e). Moreover, the Court is not convinced that its holding will lead to a wave of requests for additional Board hearings. A claimant will no doubt weigh his or her ri gh t to request a Board hearing in the circumstances discussed herein against the delay inherent in obtaining a decision when a hearing is requested. See, e.g. , VA Form 9, Appeal to Board of Veterans' Appeals (July 2015 version), available at 18http://www.va.g ov/vaforms/va/pdf/VA9.pdf (advising that requesti ng a Board hearing "will add

delay to issuance of a Board decision" ). Claimants may the re for e opt to forgo opportuniti es for Board hearings i n the inter est of obtaining more timely Board decisi ons. The Court is not i ndifferent to the administr ative burde n facing the Board in the provi sion of personal hearings on matters appealed to it. The most recent st at is ti cs cited by the Secretary indicate that the Board faces a siz eabl e chal lenge, given current resources , in its mission to offer prompt hear ings. But these co nc erns do not authorize the Court to ignore the intent of Congres s, discerned fr om th e langua ge of section 7107(b), the text and context of relate d statutory and regulatory provisions, the overall structur e of the VJRA, and the solicit ous and pr o-claimant principl es informing veterans benefits law. If the Secretary disagrees with this interpret ation of section 7107(b), he is free, following public notice and comm ent, to promulgate a regulati on that resolves the ambiguity in the statute

. See 5 U.S.C. § 552. Under the Skidmore deference we accord in the pres ent case, however , we are simply not persuaded by hi s arguments. In sum, we hold that, under section 7107(b), a claimant who received a personal he ar ing before the Board at an earl ier sta ge of appellate pr oceedings is entitl ed to recei ve, upon request, a Board hearing following this Court's remand of the same claim. Because the Board erred as a matter of law in conc lu di ng th at Mr. Cook did not have such a right, the Court will set aside the Board decision and remand the matter for the Board to provide him with an opportunity for such a hearing. See Gantt v. Principi , 16 Vet.App. 89 , 96 (2002); see also Tucker v. West , 11 Vet.App. 369, 374 (1998) (holding that remand is the appropriat e remedy "where the Board has incorrec tly applied the law"). Given this dispositi on, the Court need not address the veteran's other arguments that would not result in a remedy greater than remand. Mr. Cook is free on remand to present to the Board any additional arguments and evidence in accordance with Kutscherousky , 12 Vet.App. at 372-73. See Kay v. Principi , 16 Vet.App. 529, 534 (2002). The Court reminds the Board that "[a] re mand is meant to entai l a cr itical examination of the justificat ion for the [Board's] decision," Fletcher v. Derwinski , 1 Vet.App. 394, 397 (1991), and must be performed in an expeditious manner in accordance with 38 U.S.C. § 7112.

19IV. CONCLU SION

After consi deration of the parties ' briefs and oral arguments, the r ecord on appeal , and the governing law, the Feb ru ary 20 , 2015, Board decision is SET ASIDE, and the matters are REMANDE D for additional deve lopment and readjudicat ion consist ent with thi s decision.

20