UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 09-0953

R O B E R T H. A R N E S O N , A P P E L L A N T ,

V

. E R I C K. S H I N S E K I , S E C R E T A R Y O F V E T E R A N S A F F A I R S , A P P E L L E E

.
On Appea l from the B oard of Veter ans' Appea ls

(Arg ued January

25, 2011 Dec ided April 20, 2011)

Glenn R. Be rgmann and

Thomas Polseno, both of Be thesda, Mar y land, for the appellant.

Ronen Morris, with whom W ill A. Gunn , Gene ral Counsel; R. Randall Campbell , Assistant G e n e r a l Counsel; and Carolyn F. W ashington , Deputy Assistant Gene ral Couns e l, a ll o f Wa s h in g to n , D.C., were on the brief

for the a ppellee.

Be fore KASOL D, Chief Judge , and L ANCE and SCHOEL EN, Judges

. SCHOEL EN, Judge , filed the opinion of the Court. KASOL D, Chief Judge , filed an opinion
concur ring in the result.
SCHOEL EN, Judge : V eter an Robert H. Arne son appea ls throug h counsel a November 20, 2008, Boa

rd of Veter ans' Appea ls (B oard) decision that d en i ed s ervic e connec tion for bilatera l plantar fa s ci itis and a bilatera l knee disorder, both on a direc t basis and as seconda ry to service

co n necte d bilatera l pes pl anus. Record of Procee dings (R.) at 3-19. Be cause the C ourt finds t h at the Boa rd err ed by failing to aff

ord Mr. Arne son the opportunity for a persona l hear ing befor e all members of t he Boa

rd panel that ultimately decide d his case , the Court will vacate the Boa rd' s decision and r emand the va cate d matter for further proce eding s consistent with this opi nion.I. BACKG ROUND

Mr. Arne son serve d on active duty in the U.S. Navy from Marc h 1970 to October 1971. R.
at 471-72. He initially applied for benef its for foot and knee conditions in Fe bruar y 2005. R. at 248. His claims rela ting to bilatera l pes planus, bilatera l plantar fasc iitis , an d a b i l ateral knee disorder

wer e deni ed i n a September 2005 reg ional office (RO) rating decision (R. at 247-52), a Fe bruar y 2006 Statement of the Case (SOC) (R. at 207-23), and a J une 2006 Supplemental SOC (R. at 178- 82). Mr. Arne son appea led to the Boa rd and reque sted a hear ing. R. at 205-06. I n September 2006, Boa rd member Sabulsky conducte d an in-perso n h ea ri ng , at which Mr. Arne son and his sister testified. R

. at 1 3 6 -4 6. I n an October 2007 decision, Boa rd member Sabulsky rema nded Mr. Arne son' s claims to obtain a medica l opinion on the etiology of his conditions. R. at 98-102. I n J anuar y 2008, the RO g rante d service connection for bilatera l pes planus, evalua ted as 10% disabling, but denied service connec t i o n fo r b ilatera l plantar fasc iitis and a bilatera l knee disorder. R. at 47-52. On J une 17, 2008, Mr. Arne son testified at another Boa rd hear ing, this time
ap pear ing via video befor e Boa rd member Her

man. R. at 30-40. The rec ord on appea l – an d ,
acc ording to the parties, the rec ord bef ore the ag ency

– does not indicate whether this he aring was reque sted by

Mr. Arne son or why

Boa rd member

Sabulsky was not pre sent. I n October 2008, without notice to Mr. Arne son, the Chairman of the Boa rd assig ned a panel
to decide his appea l. On No v em b er 2 0 , 2008, the panel, consisting of Boa rd members Sabulsky , Her man, and Sulli van, denied the appellant' s claims f o r e n ti tl e me n t to s e r

v ic e connec tion for bilatera l plantar fasc iitis and a bilatera l knee disorder, both under direc t service connec tion and as seconda ry to his service- connec ted pes planus. R. at 3-19. Although the Boa rd found Mr. Ar

neson' s and his sister' s hear i n g testimony "c redible," the Board noted a 30-y ear lapse in time betwee n service and the first treatment for Mr. Ar neson' s conditions, and ultimately g ave g rea ter weig ht to the medica l opinions that found no nexus betwee n his present disabilities and service or his service -conne cted pes planus. R. at 16-18.

II. THE P ARTIES' ARG UMENTS The novel question befor e the Court is whether a claimant is e ntitled to the opportunity for

a persona l h ea ri n g in front of all Boa rd members that ultimately decide his appea l. Mr. Arne son

2asser

ts that the Boa

rd violated statute, reg ulation, and his rig ht to fair proce ss by not aff ording him the opportunity for a persona l h earing in front of all three Boa rd members that would ultimately decide his appea l. First, he arg ues that he has a statutory rig ht to a hear ing befor e a Boa rd member

or all members of a Boa

rd panel, dependin g on whether his appea l is assig ned to a single Boa rd member or a panel. Appellant' s Br ief (B r.) at 9-13. Second, he contends that VA reg ulations compel the entire Boa

rd panel that is assig ned to an appea l to conduct the hear ing. Id .; Reply at 1-2. Third, he arg ues that fair proce ss entitles him to a hear ing in front of all the decisionmake rs on his appea l. Id

. He asser

ts prejudice beca

use a persona l hear ing befor e Boa rd member Sulli van could have
sway ed the Boa

rd' s deter mination reg ar d in g th e c redibility of his continuity -of- sy mptoms arg ument. Appellant' s Br . at 10-12. At oral arg ument, the Secr etar y arg ued that no statute, re g ulation, or notion of fair proce ss require s all members of a Boa rd panel to conduct a Boa rd hear ing. He first noted that 38 U.S.C. § 7107(c) g rants the Boa

rd Chairman the discretion to assig n Boa rd members to conduct a hear ing. Second, he arg ued that an appellant would only be entitl ed to a hearing befor e every member of a Boa rd panel if a panel was assigne d to adjudicate his appea l befor e a hear ing was held. Since hi s appea l was initially assig ned to only Boa rd member Sabulsky , the Secre tary stated that it was proper for only Boa

rd m ember Sabulsky to hold the hearing

. The S ecr etar y explained that the Chairman assig ned a three -member panel to decide Mr. Arne son' s appea l beca use two Bo ar d members had conducte d two separ ate hear ings; both Boa rd members wer e require d by statute to participa te in the final dete rmination; and two-per son panels are prohibited by law. Third, r efe renc ing Del Rosario v. Pe ake , 22 Vet.App. 399, 406 ( 2009), he a rg ued that fa ir proce ss is not i mplicated bec ause the re is no inhere nt advanta g e in live testimony in front of a Boa rd member. Finally , the Secre tary arg ued that Mr. Arne son suffe red no prejudice , beca use (1) Boa

rd members Sabulsky and Her man alre ady held hear ings on Mr. Arne son' s claim and only a majority is require d for a binding decision, and (2) the Boa rd alre ady found Mr. Arne son' s testimony conce rning his continuity of sy mptoms "c redible." Mr. Arne son also arg ues that the Boa rd err ed in (1) finding the duty to assist satisfied despite the absenc e of entra

nce and discharg e medical repor ts from his service medical rec ords; (2) finding th at a J une 2008 private medical opinion lacke d probative value; (3) providing an inadequa te
statement of rea sons or bases for deny ing his claim; and (4) failing to addre ss the rea sonably raised

3issue of service conne ct i o n for Mr. Arne son' s hallux valg us disability

. Appellant' s Br

. at 13-21;

Reply at 3-6. The Secre tary ref utes the first three arg uments, but conce des that rema nd is war rante d
to enable the Boa

rd to consider the appellant' s rea sonably raised issue of entitlement to service

connec tion for hallux valgus. Secr etar y ' s Br . at 4-16.

III. DISCUSS ION A. Purpose and I

mportance of the B oard H ear ing Be fore the Boa

rd rende rs a decision in the veter ans claims adjudication proce ss, the claimant
must be aff

orded an opportunity for a Boa rd hear ing. 38 U.S.C. § 7107(b) (" The Boa rd shall decide
any appea l only afte r aff

ording the appellant an opportunity for a hear ing.")

. T h e p u rp o se of VA hear ings is " to permit the claimant to introduc e into the rec ord, in person ," pe rtinent evidenc e and
arg uments wi t h respe ct to his claim, and testimony from the claimant or witnesses under oath or aff irmation. 38 C.F.R. § 3.103(c) (2) (2010) (empha sis in orig inal); 38 C.F.R. § 20.700(a) (2010) (" A [ Bo ard] hear ing on appea l will be g rante d if an appellant

. . . expresses a desire t o ap p ea r i n person." ). Although the Boa rd hear s only case s on administrative appea l, it revie ws matters de novo and "func tions as a fac tfinder in a manner si milar to that of a trial court

. " Gi lbert v. Derwinski , 1 Vet.App. 49, 52 (1990); see McBurne y v. Shinseki , 23 Vet.App. 136, 139 (2009) (" [T] he Boa rd, as the final trier of fac t, is not constraine d by

. . . deter minations below." ). Unlike a traditional judicial
appea l wher e revie w is of the rec ord, the opportunity for a person al h ea ri n g befor e the Boa rd is signific ant beca

use it is the veter an' s one opportunity to persona lly addre ss those who will find fac ts, make cre dibilit y deter

minations, and ultimately rende r the final Ag ency decision on his claim. See McD owell v. Shinseki , 23 Vet.App. 207, 214 (2009) (noting "this Court's case law that has long held that the Boa

rd has a duty to f

ind f acts and assess the weig ht a nd cre dibilit y of the e vidence ") . Our

case law has acknow ledg ed the importance of a hear ing, and t he swo rn t es t imony rende red during it, by holding that the Boa

rd "must consider" and "pr ovide adequa te rea sons or bases for its reje ction" of any sworn testimony

. Ashley v. Brown , 6 Vet.App. 52, 56 (1993); see Clyburn v. W est , 12 Vet.App. 296, 300 ( 1999). The signific ance place d on a veter an' s sworn testimony is further demonstrated by the standard under which the Court revie ws the Boa rd' s assessment of a witness' s cre dibilit y
. Such

4cre dibilit y deter minations are fac tual finding s that the Court r eviews under the "c lear ly err oneous" standard. 38 U.S.C. § 7261(a) (4) (a u t h o rizing Court to set aside or reve rse the Boa rd' s fac tual finding s only if they are found to be "c lear ly err oneous" ); see Gilbert , 1 Vet.App. at 52 (" ' A finding is "c lear ly err oneous" when althoug h there is evidenc e to support it, the revie wing court on the entire evidenc e is left with the definite and firm conviction that a mistake has been committed.'" (quoting Un i t ed States v. U.S. Gypsum Co. , 333 U.S. 364, 395 (1948)) ). I t is well established that "t h e assessment of the cre dibilit y of the veter an' s sworn testimony is a function for the [Board] in the first instance and [] it is not for this Court to find . . . that that sworn testi mony
. . . is cre dible." Jones

v. Derwinski , 1 Vet.App. 210, 217 (1991); see Smith v

. Derwinski , 1 Vet.App. 235, 237-38 (1991) (stating that "[c]redibility is deter mined by the fac t finder" and that "the Court cannot deter mine the

cre dibilit y of a veter an' s sworn testimony ")

. One obvious re as o n t h e Court defe rs to the Boa rd' s assessment of a witness' s cre dibilit y is that the Boa rd has had the opportunity to observe the witness firsthand, wher eas the Court has not. See Leatherbury v. Dep't of Army , 524 F.3d 1293, 1304 (F ed. Cir. 2008) (" This r equire ment to defe r to the [admini strative judge ' s] cr edibility finding s spring [s] from a fundame ntal notion of fairne ss .
. . [t hat] g rea t defe renc e must be g rante d to the trier of fac t who has had the opportunity to observe the demea nor of the witnesses, wher eas the revie wing body looks only at cold rec ords." ) internal quotations omitted)); Haebe v. Dep't of Justice , 288 F.3d 1288, 1301 (F ed. Cir. 2002) (" [T] he defe renc e require ment

. . . is fundame ntally rela ted to the observa tion of witness[] demea

nor." ). B. 38 U .S.C. §§ 7102, 7107 Be fore analy

zing the pertinent statutes reg arding Boa rd hear ings, we first acknow ledg e that Arnesen v. Brown , provides controlling prec edent on the pre- 1994 version of section 7102. 1 8 Vet.App. 432, 441 (1995) (addr essing 38 U.S.C. § 7102(b ) (1993))

. Be fore substantive amendment s wer e enacted in 1994, decisions of the Board could only be rendere d by "se ctions of three members," and hear i n g s could be held by "suc h member or members as the Chairman may desig nate." 38 U.S.C. § 7102 (1993). The Cour t 's 1 995 decision in Arnesen held that section 7102(b) " at that time" a

uthorized hearing s to be held by one B oard me mber e ven thoug h a sec tion

T o r e A r n e s e n , p a r t y t o A r n e s e n v

. B r o w n , i s n o t r e l a t e d t o t h e a p p e l l a n t i n t h e p r e s e n t m a t t e r , a n d A r n e s e n 1

v

. B r o w n i s n o t o t h e r w i s e c o n n e c t e d t o A r n e s o n v

. S h i n s e k i , t h e c a s e w e c o n s i d e r h e r e
. 5of three members would subsequently decide the claim. 8 Vet.App. at 441. Whil e we do not dispute

that Arnesen ' s holding was corr ec t fo r the statutory scheme in eff ect in J anuar

y 1993, when Tore Arne sen had his Boa

rd hearing , Congr ess has since altered section 7102, added section 7107, and sufficie ntly chang ed the statutory scheme such that Arnesen is not a controlling interpre tation of the post-1994 statutory scheme reg arding hear ings. Bo ar d of Veter ans' Appea ls Administrative Procedur es I mprovement Ac t of 1994, Pub. L . No. 103-271, 1994 U.S.C.C.A.N. 810 (1994). Both parties arg ue that the pertinent statutes support their positions. The Court revie ws VA' s interpre tation of statutes and reg ulations de novo. See Lane v. Principi , 339 F.3d 1331, 1339 (F ed. Cir. 2003) (" [I ]nt erpr etation of a statute or reg ulation is a question of law

. . . .") ; Butts v. Brown , 5 Vet.App. 532, 539 (1993) (en banc) (s t at i n g that the Court revie ws "que stions of law de novo without any defe renc e to the [Board' s] conc lusions of law" ). "' Statutory interpre tation beg ins with the lang uag e of the s tatute, t he plain meaning of which we derive from its tex t and its structure.' " Myore v. N

icholson , 489 F.3d 1207, 1211 (Fe d. Cir. 2007) (quoting McEntre e v. M SPB , 404 F.3d 1320, 1328 (F ed. C ir. 2005)). S t at u t o ry terms are i nterpre ted "in their contex t and with a view to their place in the overa ll statutory scheme ." Tyler v. Cain , 533 U.S. 656, 662 (2001) (quoting Davis v. Mich. Dep't of Treasury , 489 U.S. 803, 809 (1989))

. I n revie wing "an ag ency ' s construction of the statute which it administers," a court must first ask "w hether Congr ess has direc tly spoken to the
prec ise question at issue." Chevron U.S.A., Inc. v. Natural Res. Def. Counsel, I nc. , 467 U.S. 837, 842 (1984). I f so, the court and the ag ency must "g ive eff ect to the unambig uously expressed intent of Cong ress." Id . at 842-43. Be fore the 1994 amendments, the same statutory section that require d all Boa rd decisions
to be rendere d by three -member panels also provided that " formal r ecor ded hea ring s shall be held by such member or members as the Chairman may desig nate, the member or members being of the section which w ill make final dete rmination in the claim." 38 U.S.C. §§ 7102(a)(1) , (b) ( 1993). The 1994 statutory amendments restruc tured this section and separat ed t h e provision
reg arding the assig nment of Boa rd members from the provision reg arding hear ings. Under the new statutory scheme , section 7102 g overns the assig nment of case s, and permits a single Boa rd member

or a panel to rende r a Boa rd decision. See 38 U.S.C. § 7102(a) (" A proce eding instit uted befor e the Boa rd may be assig ned to an individual member of the Boa rd or to a panel of n o t l es s t h an three

6members of the B oard." ). Section 7107 g overns B oard he aring s. Subsection (b) provide s that the "B oard shall decide any appea l only afte r aff ording the appellant an opportunity for a hear ing." 38 U.S.C. § 7107(b). Subsection (c) states that "he aring s shall be held by such member or members of the Boa rd as the Chairman may desig nate," and that "[s]uch member or members desig nated by the Chairman to conduct the hear ing shall

. . . participa te in making the final deter mination of the claim." 38 U.S.C. § 7107(c). At oral arg ument, the Secre tary arg ued that the statute interpre ted in Arnesen rema ins in the

s t at u tory scheme , now at section 7107(c) , and still authorizes the Boa rd Chairman to desig nate hear ing members. He is corr ect. Howeve r, he fails to consider this s t at u t o ry p rovision's setting within the n ew s ch eme cre ated by Congr ess, including the import of section 7102(a) and its interac tion with all of section 7107. See FDA v. Brown & W illiamson Tobacco Corp. , 529 U.S. 120, 133 (2000) (" [T] he meaning of one statute may be aff ecte d by o t her Acts, particula rly wher e Congr ess has spoken subsequently and more specific ally to the t o p i c at hand." ); United States v. Fausto , 484 U.S. 439, 453 (1988) (" Th[e] classic judicial task of rec onciling many laws enac ted over time, and g etting them to ' make sense' in combination, nece ssarily assumes that the implications of

a statute may be altere d by the i m plications of a later statute." ). The pre- 1994 statutory scheme require d all Boa

rd decisions to be rende red by three -member panels and hear ings to be held by "the member or members

. . . of the section which will make final deter mination in the claim." 38 U.S.C. § 7102(b) ( 1993) (e mphasis added) . The only require ment reg arding who conduc ts a hea ring was that at least one member "of the section" that would rende r the final decision must participa te in the hear ing. The pre- 1994 statutory lang uag e, t h er efore, clea rly allowed a single Boa

rd member to conduct a hear ing in a case that was to be decide d by a three -member panel on which such member

serve d. The post-1994 lang uag e is not as clear. As n o ted above, section 7102(a) now allows an appea l to "be assig ned to an individual membe r of the Boa rd or to a panel o f not less than three members of the Boa

rd." 38 U.S.C. § 7102(a) (empha sis a dded). The lang uag e reg arding hear ings in section 7107, howeve r, states that "he aring s shall be held by such mem ber or members of the Boa rd as the C hairman may desig nate. Such memb er o r m ember s desig nated by the C hairman to conduct the hear ing shall

. . . participa te in making the final deter mination of the claim." 38 U.S.C.

7§ 7107(c)

. Obviously , if a case is assig ned to be adjudicate d by an individual member of the Boa rd, that member must conduct the hear ing. Howeve r, it is not clea r whether the am ended statutory lang uag e allows for any individual membe r of a panel to c onduct a hear ing on behalf of that panel or whether the lang uag e requires all membe rs of a panel to part i ci p at e in a hearing

. Ba sed on the lack of specific ity in the post-1994 lang uag e and the differ ence s betwee n the pre- 1994 and post-1994 statutory scheme s, the C ourt is not persua ded by the Secre tary ' s arg ument that the Court's ear lier interpre tation of section 7102 in Arnesen is applicable to the post-1994 statutory scheme

. Be cause the post-1994 statutory lang uag e does not c lear ly state that a f

inal Boa rd decision

can only be rende red by the member or members who conducte d the hear ing, it cannot be said that "Cong ress has direc tly spoken" to the question of whether a claimant is entitled to a hear ing befor e all the Boa

rd members assig ned to decide his appea l. Chevron , 467 U.S. at 842. "[I ]f the statute is silent or ambig uous with respe ct to the s p ec i fi c issue, the question for the court is whether the
ag ency ' s answe r is based on a permissible construction of the statute." Id

. at 843. "I f Congr ess has expli citly left a g ap for the age ncy to fill, there is an ex press deleg ation of authority to t h e agency to e lucidate a specific provision of the statute by reg ulation." Id . at 844-45. Ac cording ly , we turn
to the ag ency ' s implementing reg ulation to demonstrate VA' s interpre tation of the statutes perta ining to Boa rd hea ring s. C. 38 C.F.R. § 20.707 The Secre tary has promulg ated 38 C.F.R. § 20

. 7 0 7 t o i m p lement the pertinent statutes on Boa rd hear ings. This reg ulation states that "[t]he Member or panel to whom a proce eding is assig ned

. . . shall conduct any hear ing befor e the Boa rd in connec tion with that proce eding

. . . . The Member

or Members who conduct the hear ing shall participa te in making the final deter minat i o n of the claim." 38 C.F.R. § 20.707 (2010). At oral arg ument, the Secre tary stated that it has been the Ag ency ' s prac tice to assig n Boa rd members to case s in piece meal fashion, such that some are appointed afte r a hear ing has been held. Ba sed on this prac tice, the Secre tary arg ues that o n l y the Boa rd member or members who are assig ned to the appea l at the time of the hearing are require d to conduct the hear ing. Courts tend to

acc ept an ag ency ' s interpre tation of its own reg ulation unless it is "' plainly err oneous or inconsistent with the reg ulation.'" Auer v. Robbins , 519 U.S

. 452, 461 (1997) (quoting Robertson v. Methow

8Valley C i tizens Council , 490 U.S. 332, 359 (1989))

. The Court cannot acc ept the Secre tary ' s

interpre tation here

. As an initial matter, it is well established "tha t the unchalleng ed historical prac tice of the Secre tary is not evidenc e that the prac tice is corr ect." Tropf v. Nicholson , 20 Vet.App. 317, 321 n.1 (2006) (citing Brown v. Gardner , 513 U.S. 115, 122 (1994))

. The fac t that the Chairman may assig n Boa rd members to a panel in piece meal fashion cannot serve as a basis for the Secre tary ' s interpre tation of his own reg ulation, espec ially when that prac tice seems so clea rly at odds with the
reg ulatory lang uag e. The Sec reta ry ' s interpre tation sugg ests that a vete ran ha s a rig ht to a hearing in front of all the Boa

rd members adjudicating his appea l only if his case is assig ned to a panel from the start of the adjudication; wher eas a veter an whose appea l is assig ned t o a panel on an ad hoc basis, as appa

rently occur red in the pr esent c ase, ha s no such rig ht. This interpre t at i o n makes no sense. The reg ulation does not state that Boa rd members assig ned to an appea l shall conduct a hear ing if that hearing happens to be schedule d subsequent to their assignment . Nor doe s it state that a sing le member of a pa nel ca n conduct a

hear ing w here a

case has been assig ned to be decide d by a panel. I nstead, the reg ul at i o n s t at es t hat the Boa rd "Me mber or panel" assig ned to an appea l " shall conduct any hearing befor e the Boa rd in connec tion with that [appeal]." 38 C.F.R. § 20.707 (empha sis added)

. The plain lang uag e of § 20.707 does not in any way

indicate that the timing of B oard me mber a ssignments dicta tes the scope of one' s rig ht
to a hear ing in f

ront of those adjudicating one' s appea l. The notion that Congr ess would pre dicate

a veter an' s rig ht to a hear ing in front of those adjudicating his appea l upon a fac tor as arbitra ry as the timing of the Chairman' s assig nment of Boa rd members is odd, at best. See United States v. XCitement Video, Inc. , 513 U.S. 64, 69-70 (1994) (assuming that Congr ess did not intend a statute to

cre ate o d d or absurd results); Gardner v. Derwinski , 1 Vet.App. 584, 587 (1991) (noting that the

"' absurd result' exception to the plain meaning rule is, howeve r, narr ow an d l i m i t ed t o situations

' wher e it is quite impossibl e that Congr ess could have intended the result

. . . and wher e the alleg ed absurdity is so clea

r as to be obvious to most any one' " (quoting Pub. Citi zen v. U.S. Dept. of

Justice , 491 U.S. 440, 470-71 (1989) ( Kenne dy , J ., concur ring )))

. Ac c o r d in g ly , w e h o ld th a

t th e p e r ti n e n t statutes and implementing reg ulation reg arding Boa rd hear ings entitle a claimant to an opportuni t y for a hear ing before all the Board members who will

9ultimate l y d ec i d e h i s appea l. I f the claimant' s appea l is assig ned to a Boa rd panel in a piece meal fashion, that claimant must still be afforde d the opportuni ty for a hear ing be fore ever y member of the panel that will ultimately decide his c ase. This is not to say that the claimant must be aff orded a hea ring befor e eve ry

panel membe r at the same time ; only that he be a ffor ded the oppor tunity to be hear d – be it in-person, telephonica lly , or via video confe renc e – by ever y panel member who will decide his case. D. Application of L aw Her e, the Boa

rd assig ned Boa

rd member Sulli v a

n to adjudicate Mr. Arne son' s appea l without aff ording Mr. Arne son the opportunity to be hea rd bef ore Boar d member Sul livan. I n acc ordanc e with the afor ementioned discussion, we hold that the Boa rd violated 38 U.S.C. §§ 7102, 7107, and 38 C.F.R. § 20.707. E. Fa ir Process a nd Prejudice I n light of our holding, we need not decide whether fair proce ss provides a rig ht to a hear ing befor e al l m em b ers of a Boa rd panel that are assig ned to adjudicate an appea l. See Buck linger v. Brown , 5 Vet.App. 435, 441 ( 1993) (" I t is ' [a] fundame ntal and long- standing principle of judicia l
restra int

. . . that courts avo i d re aching constitutional questions in advanc e of the nece ssity of deciding them.' ")

. Howeve r, t h is Court is require d to "take due acc ount of t he rule of prejudicial

err or." 38 U.S.C. § 7261(b)( 2); see S h i n s ek i v. Sanders , 129 S. Ct. 1696, 1706 (2009) (appe llant bear s burden of demonstrating prejudice on appea l); Marciniak v. B r o w n , 1 0 Vet.App. 198, 201 (1997) (r em an d unnece ssary in "the absenc e of demonstrated prejudice ")

. Acc ording ly , we must consider Mr. Arne son' s arg uments th at he was prejudice d by the Boa rd' s failure to aff

ord him the opportunity

for a hear ing be fore ever

y Boa rd member

who dec ided his case

. Mr. Arne son arg

ues that he was prejudice d beca use a hear ing befor e Boa

rd member Sulli van could have altere d th e B o a r d ' s d e te r mi n a ti o n o n h is c ontinuity -of- sy mptoms arg

ument and, there fore , the outcome of

his claim. The Secr etar

y asser ts tha t a n additional hear ing is unwa rra nted bec ause (1) B oard me mbers Sabulsky and Herman already held hearing s and only a majority is neede d for

a binding decision under 38 C.F.R. § 19.7, and (2) the Boa rd alre ady found Mr. Arne son' s testimony

con ce rn i n g the continuity of his sy mptoms cre dible. We find Mr. Arne son' s arg ument more persua sive for se vera l rea sons.

10This Court has held t h at "[ t ]he entire thrust of VA' s nonadver sarial claims sy stem is

predic ated upon a s t ru cture which provides for notice and an opportunity to be hear d at virtually

ever y step in the proce ss." Thurber v. Brown , 5 Vet.App. 119, 123 (1993). Her e, Mr. Arne son was

never notified that an additional fac tfinder had been assig ned to adjudicate his appea l, and never g iven the opportunity provided by statute and reg ulation to have a h e a r in g b e f o re that decisionmake r. I f nothing else, the hear ing and rema nd by Boa rd member Sabulsky , followed by a hear ing by Boa rd member Her

man, followed by the addition of Boa rd member Sulli van and the rende ring of a panel decision, wit hout any

notice or oppor

tunity to be hea rd by the third member of

the pane l, give s an appea ranc e of forum shopping, reg ardle ss of the g ood-fa ith basis fo r assig ning the panel. I n the 2 claimant-f

riendly world of veter ans benef its, "the importanc e o f s y s te mi c f a ir n e s s a n d the appea

ranc e of fa irness ca

rries g rea t weig ht." Hodge v . W est , 155 F.3d 1356, 1363 ( Fe d. Cir. 1998). Howeve r, the perc eption of unfairne ss is not the only issue here

. As Mr. Arne son arg ues, the piece meal assig nment of Boa rd members to a panel post-hear ing – such that Boa rd members are assessing cre dibilit y based on a second-hand convey ance or a review of a transcript – undermines the claimant' s ability to persona lly impress his cre dibilit y upon his fac tfinders. See Anderson v. City of Bessem er City, N.C. , 470 U.S. 564, 575 (1985) (noting that "va riations in de meanor and tone of voice" bear heavily on a judge ' s cre dibilit y assessment); Caluza v. Brown , 7 Vet.App. 498, 511 (1995), aff'

d per curiam , 78 F.3d 604 (F ed. Cir. 1996) (table) (" [C ]redibilit y is often defined as deter mined by the demea

nor of the w itness . . . .")

. Fur thermore , the rig ht to a hea ri n g as a conduit for convey ing one' s cre dibilit y could be rende red meaningless if the cre dibilit y deter minations of one Boa

rd member who attended the hear ing we re o v er rul ed by two Boa rd members who did not attend that hear ing. See 38 C.F.R. § 19.7(c) (2010) (" A decision by a panel of Members will be by a majority vote of the panel Members." ). Although the Secret ar y invokes Del Rosari o , supra , for the proposition that there is

no inhere nt advanta g e in live testimony , the leve l of advantage is not the issue; rather, the issue is Mr. Arneson' s right to be afforde d t h e opportunity to be heard by those assig ned to adjudicate his

W e i n n o w a y i m p u g n t h e i n t e g r i t y o f t h e B o a r d C h a i r m a n a n d f u l l y a c c e p t a n d u n d e r s t a n d t h a t a p a n e l w a s 2

a s s i g n e d t o c o m p o r t w i t h t h e l a w t h a t t w o B o a r d m e m b e r s c a n n o t d e c i d e a n a d m i n i s t r a t i v e a p p e a l

. S e e 3 8 U

. S

. C

. § 7 1 0 2 ( a )

. N e v e r t h e l e s s , t h e r e i s a n a p p e a r a n c e o f u n f a i r n e s s w h e n a n a p p e l l a n t i s n o t n o t i f i e d o f s u c h a s s i g n m e n t a n d i s n o t o f f e r e d a h e a r i n g b e f

o r e a l l m e m b e r s o f t h e a s s i g n e d p a n e l

. 11appea l. Her e, wher e Mr. Arne son' s cre dibilit y is a key fac tor in assessing his continuity -ofsy mptoms arg ument, his inability t o p er sonally testify befor e all his fac tfinders may have signific antly aff

ecte d the outcome of his claim. See Anderson and Caluza , both supra ; cf. Sanders , 3 129 S. Ct. at 1708 (finding prejudice not demonstrated when appe llant did not explain, and C ourt could not discern, how

err or could ha ve made a diffe renc e in outcome)

. As to the S ecr etar

y ' s first arg ument, althoug h a majority of t he Board panel was prese n t at

a hear ing and only a majority is neede d for a binding decision, the Secre tary fails to understand that the Boa rd panel is not three individual members making decisions. As with other fac tfinders acr oss Americ an jurisprudenc e, the interac tion and delibera tion betwee n Boa rd members in making decisions i s essential to the collec tive judgme nt rende red. Cf. United St ates v. Resko , 3 F.3d 684, 689 (3 d C i r. 1 9 93) (" [T] he jury sy stem is meant to involve decisionmaking as a collective, delibera tive proce ss.") ; United States v. Allen , 736 F.Supp. 914, 917 (N.D. I ll. 1990) (" The viability of the jury as a decision making body is depende nt upon the interac tion of individuals in a collective
proce ss.")

. Wit h reg ard to the Secre tary ' s second arg ument, althoug h the Boa rd found Mr. Arne son' s testimony "c redible," it also found the lapses in time betwee n service and his first medical trea tment "pa rticularly signific ant" and "w eig h[i ng ] ag ainst his claim." R. at 16-18. As Mr. Arne son arg ues, if the Boa rd found his testimony conce rning the continuity of his sy mptoms cre dible, such lapses in time would not weig h ag ainst his claim. The Boa rd also stated that Mr. Arne son' s statements wer e "no t competent medical evidenc e." R. at 17. This is true. But if the Boa rd found his testimony

cre dible, Mr. Arneson would not need competent medical evidenc e to substantiate hi s claim. See Savage v. Gober , 10 Vet.App. 488, 495-96 (1997) (holding that, per 38 C.F.R. § 3.303(b), medical evidenc e of nexus is not require d for benefits i f t h e v eter an demonstrates continuity of sy mptoms betwee n his prese nt disability and service ); see also Davidson v. Shinseki , 581 F.3d 1313, 1316 (F ed. Cir. 2009) (vac ating this Court's decision that "sta ted cate g orica lly that ' a valid medical opinion' was require d to establish nexus, and that [a lay person] was ' not competent' to provide testimony as to nexus"). Finding Mr. Arne son' s testimony cre dible and y et assig ning it littl e weig ht could very well

W e n o t e t h a t , u n d e r t h e F e d e r a l R u l e s o f C i v i l P r o c e d u r e , j u d g e s s u b s t i t u t e d m i d

- p r o c e e d i n g i n t o " a h e a r i n g 3

o r n o n - j u r y t r i a l

. . . m u s t , a t a p a r t y 's r e q u e s t , r e c a l l a n y w i t n e s s w h o s e t e s t i m o n y i s m a t e r i a l

. " F E D

. R

. C IV

. P

. 6 3

. 12ref

lect the fac t that the cre dibil i t y as s es s m ent was based, in part, on second- hand convey ance or

rec ord revie w, as opposed to persona l assessment

. R ega rd less, beca use the Boa

rd' s statement is unclea r as to whether it found Mr. Arne son' s testimony conce rning the continuity of his sy mptoms

cre dible, the Secr etar

y ' s second a

rg ument is without m erit. We cannot say how a hear i n g befor e all Boa rd members assig ned to adjudicate his appea l would have aff

ecte d the Boa

rd' s deter minations on cre dibilit y , probative weig ht, and ultimately Mr. Arne son' s claim. Howeve r, we fi n d t h at the assignment of Boa rd m ember Sulli van to decide Mr. Arne son' s administrative appea l, without providing an opportunity for a hear ing, deprive d Mr. Arne son of an oppor

tunity to meaning fully

participa te i n the processing of hi s claim i n a way that could have altere d the Boa rd' s cre dibilit y deter

minations. There fore , Mr. Arne son has demonstrated that the err or prejudice d his claim. See Sanders , supra ; Ove rton v. Nicholson , 20 Vet.App. 427, 435 (2006) (findi n g t h at any err or depriving a claimant of "a meaning ful opportunity to participa te eff ectively in the p ro ce s s i n g of his or her claim

. . . must be considere d prejudicia l")

. Remand is

war rante d for the Boa

rd to aff ord Mr. Arne son the opportunity for a hear ing in fro n t of all his decisionmake rs. See Tucker v. W est , 11 Vet.App. 369, 374 (1998) (re mand appropr iate "w here the Boa rd has incorre ctly

applied the law, failed to provide an adequate s tatement of rea sons or bases for its deter

minations, or where the re cord is other wise inade quate" ). F. Mr. A rneson' s Remaining A rg uments Be cause the matters of plantar fasc iitis and a knee disability are being rema nded, the majority of Mr. Arne son' s rema ining assertions – that the Board erre d i n its duty to assist, probative value, and cre dibilit y deter

minations – are rende red moot. See Dunn v. W est , 11 Vet.App. 462, 467 (1998) (re mand of claim under one theory moots the rema ining theories advanc ed on appea l). Wit h reg ard
to benef its for hallux valg us, the parties ag ree – and the rec ord ref lects – that Mr. Arne son' s orig inal claim for benef

its for a foot condition rea sonably included a claim fo r b enef its for hallux valg us. See Clemons v. Shinseki , 23 Vet.App. 1, 5 (2009) (" [T] he claimant' s intent in filing a claim is
para mount to construing its brea dth.") . Thus, rema nd is warr anted. Tucker , supra
. G. Remand On rema nd, Mr. Arne son is fre e to submit additional evidenc e and arg ument on the rema nded matters, and the Board is require d to consider any such re levant evidence and arg ument. See Kay

13v. Principi , 16 Vet.App. 529, 534 (2002) (stating that, on rema nd, the Boa

rd must consider additional evidenc e and arg ument in assessing entitlement t o b en ef i t soug ht); Kutscherousky v. W est , 12 Vet.App. 369, 372-73 (1999) (per curia m or der)

. The Court ha s held that "[a] r emand is meant
to en t ail a critica l examination of the justification for the decision." Fletche r v. Derwinski , 1 Vet.App. 394, 397 (1991). The Boa rd must proce ed expeditious ly , in acc ordanc e with 38 U.S.C. § 7112 (re quiring Secre tary to provide for "e x peditious trea tment" of claims rema nded by the Court).

IV. CONCLUSION Upon consideration of the fore g oing analy sis, the r e c o r d o n appea l, and the parties' pleading s, the November 20, 2008, Boa rd decision d en y i ng service connec tion for plantar fasc iitis and knee disability is VACATED. Those matters, along with the appellant' s claim for entitlement to service

connec tion fo r h allux valg us, are REMANDED for further development and rea djudication consistent with this opi nion.

KASOL D, Chief Judge, concur ring in the result: I ag ree that a claimant is entitled to the o p p ortunity for a persona l hear ing in front of the Boa rd member or panel that adjudicate s his administrative appea l, but I find this entitlement in the statutes, not the reg ulation. Although the Secre tary arg ues that his regu l at i o n s permit the adjudication of an appea l by a Boa rd panel without the opportunity to be hear d in front of the entire panel, he fails to rec og nize that this prac tice, once authorized by statute, is no longe r authorized. See Pub. L

. No. 103-271. I t is axiom atic that a reg ulation may not contra

vene a statue. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (if "Cong ress has direc tly spoken to the prec ise question at issue . . . that is the end of the matter" ). When examining the statuto ry t erms of the rele vant provisions in their context and with a view to their place in the overa ll statutory scheme , it is clea r that amendments to title 38 enac ted in 1994 fundame ntally

chang ed a c laimant' s rig ht to a hear ing. See Tyle r v. Cain , 533 U.S. 656, 662 (2001); see also FDA v. Brown & W illiamson Toba cc o Corp. , 529 U.S. 120, 133 (2000) (" [T] he

mea n i n g o f o n e statute may be aff ecte d by other Acts, particula rly wher e Congr ess has spoken subsequently and more specific ally to the t opic at hand." ); United St ates v. F a u s t o , 484 U.S. 439,

14453 (1988) (" Th[e] classic judicial task of rec onciling many laws enac ted over time, and g etting them

to ' make sense' in combination, nece ssarily assumes that the implications of a statute may be altere d by the implications of a later statute." ). Post-1994 section 7102(a) states that a proce eding befor e the Boa rd may be assig ned to one Boa rd member or a panel of at least three Boa rd members. 38 U.S.C. § 7 1 0 2 (a). The assig ned Boa rd m ember or panel "sha ll make a deter mination" on the claimant's appeal. Id. Howeve r, t he Boa rd "sha ll decide [t he] appea l only afte r aff ording the appellant an opportunity for a hear ing." 38 U.S.C. § 7107(b). I n this context, this "B oard" that aff ords an opportunity for a hear ing rea sonably

can be construed only as the "B oard" that decide s the appea l, claimant' s assig ned Boa rd member or panel. Thus, beca

use a claimant' s appea l cannot be adjudicate d until he is aff orded the opportunity
to be hear d by the Boa

rd assig ned to adjudicate his appea l, it follows that the claimant has a rig ht to be hear d by the Boa

rd member or panel assig ned to adjudicate his administrative appea l. As such, altering the assig ned members of the Bo ar d wi t hout subsequently aff ording the claimant an opportunity to be hear d befor e any newly assig ned Boa rd members falls afoul of the leg islative scheme

. This conclusion is bolstered by section 7107(e) (2), which expli citly presc ribes that a hear ing throug h technolog y would be "in l i eu o f h ear ing held by persona lly appea ring befor e a Boa

rd member or panel." The lang uag e employ ed in this sec tion more specif ically evidenc es Cong ress' s intent – in a ddition to the g ener al intent taken from the totality of the above cited provisions – that

a claimant is enti t l ed t o a hear ing befor e the Boa rd member or panel assig ned to decide his administrative appe al. Reg ardle ss of the basis of the claimant' s rig ht, my colleag ues corr ectly hold tha t a claimant has a rig ht to notice and an opportunity to be hear d upon the post-hear ing addition of Boa rd members
to an app ea l , and Mr. Arne son was deprive d of that rig ht. Fur ther, althoug h it cannot be said definitively whether a new hear ing will aff ect the outcome of Mr. Arne son' s appea l, my colleag ues

corr ectly find that Mr. Ar n es o n has demonstrated prejudice beca use he was deprive d of the opportunity to meaning fully participa te in the proce ssing of his claim – i.e., to persona lly testify in front of all his decisionmake rs – in a way t h at co u l d have altere d the Boa rd' s cre dibilit y deter minations. See Shinseki v. Sanders , 129 S. Ct. 1696, 1708 (2009) (finding prejudice not

15demonstrated when appellant did not explain, and Court could not discern, how err or could have

made a differ ence i n o u t co m e); Ove rton v. Nicholson , 20 Vet.App. 427, 435 (2006) (any err or depriving a claimant of "a meaning ful opportunity to participa te eff ectively in the proce ssing of his or her claim . . . must be consider ed pre judicial")

.

16