UNITED STAT ES COURT OF AP P EALS FOR VETERANS CLAIMS

N O

. 11-1253
A L F R E D P R O C O P I O , J R ., A P P E LL

A N T ,
V

. E R I C K. S H I

N S E K I , S E C R E TA R Y O F V E TE 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’ Appe als (De cided Oc tober 16, 2012 )
Glenn R. Bergmann and Thomas Polseno , both of Be thesda, Mary land, wer e on the brief for the appe llant.
Ka r e n H a r tr idge , Appellate Attorney , with whom W ill A. Gunn , Gene ral Counsel; R

. R a n d a ll Campbell , Assistant Ge n eral Counsel; and Carolyn F. W ashington , Deputy Assistant Gene ral Counsel, all of Washington, D.C., we re on the brief f or the a ppellee.
Be fore KASOL D, Chief Judge , and HAG ELand SCHOEL EN, Judges

.
HAGEL , Judge : A lfred Procopio, J r., appea ls throug h counsel a Marc h 16, 2011, Boa rd of Veter ans' Appea ls (B oard) decision denying entitlement to VA benef i t s fo r p ro state canc er and diabetes mellit us ty

pe I I with edema , both t o i n cl u d e as seconda ry to herbic ide ex posure. Record (R.) at 3-15. Mr. Procopio' s Notice of Appea l was timely , and the Court has jurisdiction to r eview the Board decision pursuant to 38 U.S.C. § 7252(a)

. Be cause the Boa rd member conducting the September 2010 hear ing did not comply with 38 C.F.R. § 3.103(c) (2) (2010), the Court will vacate the Marc h 16, 2011, Boa

rd decision and remand t he matter for readjudication consistent with this decision.I. F ACTS

Mr. Procopio serve d on active duty in the U.S. Navy from September 1963 to Aug ust 1967, including se rvice on board the U.S.S. Intrepid off the c oast of Viet Na

m. R. at 862-63, 1025. 1 Mr. Procopio filed cl aims for VA benef its for diabetes mellitus and prostate canc er in October 2006 and October 2007, respe ctively

. R. at 694-97, 999-1015. Specifica lly , Mr. Procopio

asser ted that those conditions wer e cause d by his exposure to herbic ides in service while aboar d the U.S.S. Intrepid in "the Gulf of Tonkin and on the southern coast of Vi etnam," which "w as responsible for launching airc raf t that spray ed

. . . Ag ent Ora ng e." R. at 696, 1009. A VA reg ional office attempted to obt ai n re co rds to verify his alleg ations, but the National Personnel Records Center indicated that no such rec ords exis ted. R. at 836. Consequently , in Marc h 2009, the reg ional office sent Mr. Procopio a l etter reque sting additional information and evidenc e perta ining to his exposure to herbicide s in service . R. at 368-75. I n response , Mr. Procopio submitt ed a statement indicating that, while aboar d t h e U.S.S. Intrepid , he "quite fre quently handled [herbicides] a nd the airc raf

t a nd equipment that was used to spray these chemica ls" and dra n k "w ater that was pulled from the Gulf [of Tonkin] and ' purified' throug h co-distillation.

. . ." R. at 362. He also submitt ed an undated study funded by the Australian Depa rtment of Veter ans' Affa irs (her ei n after the Roy al Australian Navy study) indicating that "e vaporative distil lation [of s ea wa t er ] m ay allow [di ox in]

. . . to enter water supplies and to

conce ntrate in the distil late," which "pr ovides evidenc e that contamination via water may have been

an important pathway for contamination of [R oy al Australian Navy ] personne l with [di ox in] on board ships." R. at 366. I n April 2 0 0 9 , t h e reg ional office denied Mr. Procopio' s claims. R. at 354-60. He filed a timely Notice of Disag ree ment with that decision and included a May 2009 treatment note from his private p h y s i cian, Dr. Gordon Gra do, who opined that Mr. Procopio' s conditions wer e associate d with exposure to Ag ent Orang e on the fli g ht deck of the U.S .S. Intrepid and from water collecte d

VAm aintain s a list of U.S. Navy and Coa st Guard ships in op eratio n o ff the coast o f Viet Nam w hose crew 1
m em ber s w ere pr esum ed to be exposed to A gent Orange. See U.S. Navy an d Coast Gua rd Sh ips in Vietna m , U.S. D EP ' T OF V ET ER

A NS A F F A I RS , http:// w w w .publichealth.va.gov/ex po sures/ag entorange/sh iplist/index.asp (last vis ited June 4, 20 12 ). T he Court takes j udicial notice of the fact that the U.S.S. In trepid is not inclu ded on that list. See Smith v. D e rw inski , 1 Vet.App. 23 5, 23 8 (1 99 1) (" Courts m ay take j udicial notice of facts not subjec t to reaso nable dispute." (citing F ED

. R. E V I D

. 20 1( b) )); Bran no n v . Derwinski , 1 Vet.App 31 4, 31 6-17 (1 99 1)

. 2from evapor ators on that ship. R. at 339-43. I n October 2009, the reg ional office issued a Statement

of the Case that continued to deny Mr. Procopio' s claims beca use there was "no rec ord that [he was] exposed to Ag ent Ora

ng e" and the U.S.S. Intrepid car ried "A -1 Sky

raiders used for bombing and rocke ting targ ets–not spray ing Ag ent Ora

ng e." R. at 308. Mr. Procopio subsequently perf ecte d his appea l. R. at 281. I n September 2010, Mr. Procopio testified at a Boa rd video confe renc e hear ing about his inservice ex p o s u re t o h erbic ides. R. at 41-50. At that time, Mr. Procopio submitt ed a May 2010 treatment note from Dr. Gra do that included an impression of "A g ent [O] rang e exposure in Vietnam

as [a] Blue Water Sailor" and a treatment plan to "[s]upport [hi s] history of Ag ent Ora ng e exposure 2 in [t he] milit ary , as I have had many other patients who wer e ' Blue Water Sailors' with Ag ent Ora ng e exposure while off- shore in Vietnam." R. at 34. Mr. Procopio subsequently submitt ed an October 2010 letter from Dr. Gr ad o o p i n i n g: "I f Mr. Procopio was off the coast of Vietnam when Ag ent Ora ng e was being used and he was th er ef o re exposed to Ag ent Orang e, then [hi s] prostate cance r can be associate d with his Age nt Orang e exposure." R. at 22. I n Marc h 2011, the Boa

rd issued the decision curr ently on appea l, which denied entitlement to VA benef

its for prostate canc er and diabetes mellitu s t y p e I I with edema , both to include as seconda ry t o h er b i ci de exposure. R. at 3-15. Specifica lly , the Boa rd considere d and reje cted the Roy al Australian N avy

study as " too g ener al in nature " a nd Dr. Gr ado' s opinions as "c onditional." R. at 12.

II. P ARTIES' ARG UMENTS On appea l, Mr. Procopio essentially posits three arguments. First, he argues that the Boa rd hear ing office r violated her duty to "e x plain fully the issues and sug g est the submissi on of evidenc e which the claimant may have overlooke d" under 38 C.F.R. § 3

. 1 0 3 (c )(2) (2010) and Bryant v. Shinseki , 23 Vet.App. 488, 496 (2010). Second, he assert s that the Boa rd provided inadequate

rea sons or bases f

or finding that Mr. Procopio was not e x posed to herbic ides via water distillation

In VA par lance, the term " blue w ater" refers to those veterans w ho served on shi ps in the w aters off the coast 2 of Viet Nam , w

hereas the term " br ow

n w ater" refer s t o t hose veterans w ho served on vess els in the m uddy , inlan d w aterw ay s of Viet Nam

. See gen erally Ha as v. Pea ke , 5 25 F.3 d 1 16 8 ( Fed. Cir. 2 00 8)

. 3aboar d the U.S.S. Intrepid

. Third, he argues that the Secre tary violated the duty to assist by failing

to reque st that the J oint Service Records Resear ch Center verify his exposure to herbic ides and fa i l i n g t o m ake rea sonable eff orts to discover the method of water distil lation used by U.S. Navy ships. The Secre tary disputes eac h of these arguments. First, he arg ues t h at t h e Bo ard hear ing office r adequa

tely explained that exposur e t o h erbicides was the issue on appea l and that Mr. Procopi o had actua l knowledg e of the evidenc e nece ssary to substantiate his claim. Second, he contends that the Boa

rd adequa tely addre ssed the evidenc e of rec ord, including the Roy al Australian Navy study , in support of its finding that Mr. Procopio was not exposed to herbic ides. Third , h e argues that a J oint Service Records Resear ch Center reque st is not re q u ired by the VA Be nefits Adjudication P roce dure Ma nual Rewrite ( M21-1MR) in U.S. Navy ship cases a

nd that there is no
rea sonable possibili ty of substantiating Mr. Procopio' s claim throug h further investiga tion reg arding water distil lation.

III. ANALYSIS A. Hea ring Offic er D uties Mr. Procopio argues that the Boa rd member who co n d u cted the September 2010 video confe renc e hear ing failed to comply with the duties outlined in 38 C.F.R. § 3.103(c) (2) beca use she "a sked no pertinent questions," "f ailed to explain that the chief fac tual issue in the case was whether [he] had actua lly been exposed to herbic ide ag ents while serving aboar d the U.S.S. Intrepid off the coast of Vietnam," and did not "sug g est to [hi m] th at h e s ubmit evidenc e" demonstrating such exposure. Appellant' s Br ief (B r.) at 9 (italics added)

. The Secre tary responds that, "[b]ecause [Mr. Procopio] has maintained throug hout the course of his appea l that he was exposed to [Age nt Ora ng e] aboar d the [U.S.S

. Intrepid ], i t borders on a

bsurd to presume that [he] w as unawa re of the ne ed to submit evidenc e showing he had actua lly been exposed to herbic ide ag ents in service ." Secre tary ' s Br

. at 9-10. The Secre tary also contends that "a ny failure by the hear ing office r to explain the need for e vidence of direc t herbicide exposure was ha rmless beca

use t he record demonstrates that [Mr. Procopio] had actua l know ledg e of the evidenc e nece ssary to substantiate his c laim." Id

. at 10. I n his reply brief, Mr. Procopio asser ts that his hear ing testimony confirms that he was not awa re that

4he neede d to submit evidenc e, other than Dr. Gra do' s opinions and his own lay statements, "that he

had been in direc t bodily contac t with a substa n ce t h at co u ld rea sonably be identified as Ag ent Ora ng e." Appellant' s Reply

Br . at 1. 1. Applicable Law & Regulatory History Section 3.103(c) (2) provides, in pertinent part: "I t i s t h e responsibility of the employ ee or employ ees conducting the hear ings to explain fully the issues and sug g est the su b mi s s io n of evidenc e which the claimant may have overlooke d and which would be of advanta ge t o the claimant' s position." 38 C.F.R. § 3.103(c) (2). As the Court explained in Bryant , this regulation imposes "two distinct duties" on hear ing of fice rs: (1) " a duty to fully explain the i ssues still outstanding that are rele vant and materia l to substantiating the claim," and (2) a duty to "sug g est that a claimant submit evidenc e on an issue material to substantiating the claim when the record is m issing any evidenc e
on that issue or whe n the testimony at the hea

ring raises a

n issue for which there is no evidenc e in the rec ord." 23 Vet.App. at 492, 496. Of particula r importance to this appea l, the Court held that 3 those duties applied with equal forc e to VA employ ees conducting hear ings at the ag ency of orig inal jurisdiction and the B oard. Id. at 497-500. The Secre tary had an opportunity to appea l the Court's decision in Bryant to the U.S. Court of Appea ls for the Fe dera l Circuit, but elec ted not to do so. Rather, VA responde d to that decision by publishing an Aug ust 2011 rule "amending its hearing regulations to clarify that the provisions reg arding hear ings befor e the Ag ency of Orig inal J urisdiction

. . . do not apply to hear ings befor e the Boa rd of Veter ans' Appea ls.

. . ." 76 Fe d. Reg

. 52,572, 52,572 (Aug

. 23, 2011). VA explained that the Court's relianc e in Bryant on Douglas v. De r w i n s ki , 2 Vet.App. 435 (1992), which held that § 3.103(c) applied to Boa rd hearing s, was mi splace d beca use that ca se wa s decide d in the context of a differ ent regulatory scheme

. Id

. at 52,573. Namely , pursuant to the regulations in eff ect at the time that Douglas was decide d, "if an appellant chose to have a hear ing befor e employ ees of the [age ncy of orig inal jurisdiction] acting as a hear ing age n cy fo r t he Boa rd, then he or she was not entitled to a subseque nt hear ing be fore a B oard Member." Id

. (citing 38 C.F.R. § 19.160 (1991))

.

T he purp ose of those duties is to "a ssu re [the] clarity

an d com pleteness of the hearing record ," a critical and 3
som etim es m arginalized com po nent of a claim ant' s r i gh t t o a fair and fu ll adj udication befor e VA

. 38 C.F.R. § 3 .10 3( c)( 2) ; see Brya nt , 2 3 Ve t.App. a t 49 9.

5Shortly afte r Douglas , VA "a mended its hear ing regulations to terminate the prac tice of [age ncy of orig inal jurisdiction] personne l holding appellate hear ings on the Boa rd' s behalf" beca

use VA deter mined that "' a clea

r demar cation should exis t betwee n the conduct of hear ings by the Boa rd and hear ings conducte d by [Veterans Be nefits Administration] emp l oy ees at reg ional office s.' " Id

. (q u o t i n g 5 8 Fe d. Reg

. 27,934, 27,934 (May 12, 1993)). Acc ording to VA, that 1993 amendment "r efle cted VA' s intent to clea rly distinguish hear ings befor e [age ncies of orig inal jurisdiction] from hear ings befor e the Boa

rd, inclu d i n g t he duties of the respe ctive VA personne l conducting the hear ing," despi t e t h e fac t that the final rule implementing that amendment did not mention § 3.103(c) (2). Id .; see also 58 Fe d. Reg

. at 27,934. Neve rtheless, following that 1993 amendment, it beca me "sta ndard VA prac tice and proce dure" to apply § 3.103 only to hear ings befor e the ag ency of orig inal jurisdiction, and to apply 38 C.F.R. § 20.706 to hear ings befor e the Boa rd. 76 Fe d. Reg

. at 52,572. At that time, § 20.706 did not contain any expli cit ref ere nce to the duties to fully explain the outstanding issues and to sug g est the submissi on of overlooke d evidenc e co ntained in § 3.103(c) (2). See 38 C.F.R. § 20.706 (1993) (re quiring the presiding Boa rd member, among other things, to "a ssure that the course of the hear ing rema ins rele vant to the issue, or issues, on appea l")

. Following Bryant , VA amende d § 3.103(c) (2) and § 20.706 to ref lect its intent and prac tice with respe ct to hear ings. VA explained that its amendment "me rely clar ifies curr ent proce dures for obtaining and conducting a hear ing on a claim for VA benef its befor e the VA age n cy o f orig inal jurisdiction or the Boa

rd," "doe s not cre ate new proce dure," and repr esents "no substantive chang e." 76 Fe d. Reg

. at 52,573. There fore , on Aug ust 23, 2011, VA promulg ated the amende d rule without notice and comment and it beca me eff ective that same day

. See 5 U.S.C. § 553(b)( A) (exception to the notice-a

nd-comment rulemaking require ments for "inter pretive rules, g ener al sta t ements of policy , or rules of

ag ency org anization, procedur e, or pr actice ") ; 76 Fed. Re g . at 52,572. Howeve r, in April 2012, VA resc inded the Aug ust 2011 amendment beca use it deter

mined that it should have been promulg ated throug h the notice-a nd-comment proce dure outlined in 5 U.S.C. §§ 553(b )-(c). 77 Fe d. Reg

. 23,128 (Apr. 18, 2012). VA explained that notice-andcomment rulemaking was require d beca use the amendment "a ltered the lang uag e [of § 3.103(c) (2)] upon which the Bryant Court relied." Id

. Acc ording to VA, t h i s Ap ri l 2 0 1 2 rule was meant "to

6return the regulations to the lang uag e in eff ect befor e Aug ust 23, 2011." Id. The resc ission of that amendment be came eff

ective June 18, 2012. 77 Fe d. Reg . at 23,128. I n light of these regulatory chang es post- Bryant , both parties wer e ordered to file supplemental memoranda of law on which version of § 3.103(c) (2) is applicable to this case
. Both parties a sserted that the version of § 3.103( c)( 2), as a pplied in Bryant , is for application here. See Secre tary ' s Memorandum of L aw (Mem.) at 2 (" As the Boa rd hear ing in this case took place in 2010, well befor e 38 C.F.R. § 3.103(c) (2) was amende d in [August ] 2 0 11, the Secre tary asser ts that 38 C.F.R § 3.103(c) (2)[, as applied in Bryant ,] is applicabl e t o t h e Bo ard hear ing in this case .") ; Appellant' s Mem. at 8-10 (noting that the Aug ust 2011 amende d rule "doe s not apply to the Marc h 16, 2011, Boa

rd decision on appea l," and that [§] 3.103(c) (2) as di s cu s s ed i n Bryant is for application" ). The Court agre es. See Abington Mem orial Hosp. v. Hec kler , 750 F.2d 242, 244 (3d Cir. 1984) (" [V] aca

ting or resc inding invalidly promulg ated regulations has the eff ect of reinstating prior regulations." (citing Act i o n o n S mo king & Health v. Civil Aeronautics Board , 713 F.2d 795, 797 (D.C. Cir. 19 8 3 )) ); s ee Paulsen v. Daniels , 413 F.3d 999, 1008 (9th Cir. 2005) (" The eff ect of in v al i d at i ng an ag ency rule is to reinstate the rule previously in forc e." ) ; see also Bowen v. George town Univ

. Hosp. , 488 U.S. 204, 208 (1988) (" [A] dminist rative rules will not be construed to have retroa ctive eff

ect unless their lang uag e require s this result." ); E r vi n v. Shinseki , 24 Vet.App. 318, 32 2 (2 0 11) (" I f [t he Secre tary ] did expressly speak to the temporal rea ch of the regulation, then the Court should apply the regulation as indicated b y t h e lang uag e of the regulation.")

. Acc ording ly , the Court c oncludes that the Boa rd member conducting Mr. Procopio' s September 2010 vide o confe renc e hea ring was oblig ated to fully explain the outst anding issues in Mr. Procopio' s appea l and sug g est the submissi on of evidenc e that he might have overlooke d. See Bryant , 23 Vet.App. at 492.

2. Application of § 3.103(c ) ( 2) to Mr. Procopio's Appeal I t is undisputed that Mr. Procopio' s claims wer e denied by the reg ional office beca use of a lack of co m p et ent evidenc e of (1) in-servic e exposure to herbic ides and (2) a nexus betwee n any such exposure and his cur rent disabilities. R. at 266-78, 288-309, 354-60. The ref ore, pursuant to § 3.103(c) (2), the Boa

rd member was obligated to explain those issues to Mr. Procopio and to

7sug g est the submissi on of evidenc e rele vant to those issues that he might have overlooke d. See

Bryant , 23 Vet.App. at 496-97. Howeve r, the Boa rd m em b er failed to do so. Specifica lly , afte r administering an oath to Mr. Procopio and announcing t h at the rec ord would be held open for 60 day s to allow him to submit additional evidenc e, the Boa rd member turned the hear ing over to Mr. Procopio' s repr esentative and did not ask any questions or otherwise comment on his appea l. I n fac t, afte r the veter ans service org anization r e p r e s e ntative finished eliciting testimony from Mr. Procopio, the Board m em b er stated that she had no questions for Mr. Procopio and that she understood his contentions. R. at 49. She then thanked the m both and conclude d the hea ring . R. at 49-50. Despite the Boa

rd member' s minimal participa tion in the hear ing, the Secre tary asser ts that the Boa rd member complied with her duty to fully explain the outstanding issues in Mr. Procopio' s claims bec ause she stated at the outset of t he hearing that the issues on appe al wer e entitlement to benef its fo r p rost ate cance r and diabetes mellit us, to include as a result of ex posure to herbic ides. R. at 42. Howeve r, t he C ourt in Bryant held t hat a simil arly g ener ic statement of the scope of the claims was insufficient to satisfy § 3.103(c) (2). 23 Vet.App. at 497 (holding that the Boa rd member' s statement that the issues on appea l included entitlement to benef its for bilatera l hear ing loss, tinnitus , squamous cell car cinoma, and frostbite of both fee t did not satisfy § 3.103(c) (2) beca use the Boa

rd member did not inform the a ppellant that the outstanding elements nece ssary to substantiate those claims wer e proof of curr ent d i s ab iliti es and medical nexuses). Acc ording ly , beca use the Boa

rd member in the i nsta n t ca se di d not explain that Mr. P rocopio' s claims could onl y be subst antiated by submitt ing evidenc e of in-servic e exposure to herbic ides and a nexus betwee n that exposure and his curr ent disabiliti es (the missing elements in his claims), the Court conclude s t h at the Boa rd member failed to dis ch ar ge h er duty to fully explain the outstanding issues under § 3.103(c) (2). 23 Vet.App. at 496 (" [W ]hen the [reg ional office ] has denied a disability claim beca use there is no
curr ent disability , no nexus to service , or no incident in serv i ce , et c. , t h en
. . . the Boa rd hear ing office r' s expl anation and disc ussion should be center ed on these issues.")

. Next, with respe ct to the Boa rd member' s duty to sug g est the submissi on of evidenc e that Mr. Procopio might have overlooke d, the Secr etar y argues that any

failure in that reg ard w as har mless beca use "the rec ord dem o n s t ra t es that [Mr. Procopio] had actua l knowledg e of the evidenc e
nece ssary to substantiate his claim." Secre tary ' s Br

. at 10 (ci t i n g Mayfield v. Nicholson ,
819 Vet.App. 103, 121 (2005) (holding that no preju d i ce ex i s t s wher e a claimant had actua l

knowledg e of the evidenc e nece ssary to substantiate his claim), rev'd on other g r ounds , 444 F.3d 1328 (F ed. Cir. 2006)). I n support of this argument, the Secre tary notes that Mr. Procopio has consistently asser

ted and submitt ed evidenc e that he was exposed to herbic ides aboar d the U.S.S. Intrepid , his ve tera

ns service org anization r epre sentative asked him dur ing the hear ing whether he

was "e x posed chemica lly " to herbic ides in service (R. at 47), and the October 2009 Statement of the Case explained that " both the [R oy al Aust ralian Navy ] study and Dr . Gra do' s medical opinion . . .

wer e not in themselves sufficie nt to prove that he had actua lly been exposed to herbic ide ag ents in service " ( Secre tary ' s Br . at 11). This ar g ument, howeve r, is misplaced for sever al re asons. First, the Secre tary is conflating the duty to fully explain the outstanding issues with the duty to sug g est the submissi on of o v erlooked evidenc e. Even assuming that the fore g oing evidenc e demonstrates that Mr. Procopio was awa re that he neede d to submit evidenc e of in-servic e exposure to herbic ides and a nexus betwee n that exposure and h i s curr ent di sabilities, his testimony clea rly ref lects that he w as unaw are of what ty pe of e vidence was ne cessa ry to prove those e lements. Specifica lly , Mr. Procopio' s repr esentative at the hear ing reque sted that the rec ord befor e the agency be held open for 60 day s to allow M r. P rocopio to submit another nexus opinion from Dr. Gra do that was based on a revie w of his service rec ords beca use VA had deter

mined that Dr. Gra do' s previous opinions based on his statements wer e inadequate to demonstrate a nexus. R. at 43-44. At that point, the Boa

rd member should have interjec ted, explaining that a nexus opinion alone would be i n s ufficie nt to substantiate his claims without evidenc e of in-servic e exposure to herbic ides, which g ener ally cannot be provided by a private doctor deca des afte r the alleg ed exposure. Fur ther, the Boa rd member should have rec og nized that, if Mr. Procopio is able to establish in-servic e exposure, he would be entitled to presumptive servic e conne ction for pr ostate ca ncer and diabe tes mellitus t y

pe I Iunder 38 C.F .R. § 3.309(e), a lleviating the need f or a ne x us opinion. Yet, the B oard me mber did not aler t Mr. Procopio that he was overlooking evidenc e of inservice exposure to herbic ides. I nstead, the Boa rd member violated § 3.103(c) (2) by allowing Mr. Procopio to proce ed under the assumption that submitt ing a nexus opinion alone would be sufficie nt to substantiate his claims–eve n though the hear ing testimony indicated otherwise–a nd by failing to sug g est evidenc e that he could submit to demons t ra t e ex p o s u re. See Bryant , 23 Vet.App. at 496

9(explaining that a hear ing office r "must not only be familiar with the claims file but also be eng ag ed

in the hear ing proce ss") ; 38 C.F.R. § 3.103(c) (2) (stating that the purpose of the regulation is to "a ssure [the] clarity

and complete ness of the he aringrec ord" ). This is not to say that the Boa rd member was require d to prea djudicate Mr. Procopio' s claim. As the Court explained in Bryant , "[p]readjudication or the weig hing of conflicting evidenc e
. . . is

no t re q u i re d for a hear ing office r to deter mine that evidenc e is not in the rec ord with reg ard to a particula r, materia l e lement of the claim." 23 Vet.App. at 493. Her e, the reg ional office expli citly stated in its October 2 0 0 9 S t at ement of the Case that there is "no rec ord of [Mr. Procopio' s] purported exposure to herbic ides in service ." R. at 309. A Statement of the Case is a document that "a h earing office r shoul d have encounter ed in his revie w of the record, [ that] will likely assist

. . . in identify

ing the outstanding issues. Bryant , 23 Vet.App. at 496, n. 3. As such, the Boa rd member did not need to weig h the evidenc e of rec ord to deter mine that a letter reg arding nexus alone would not substantiate Mr. Procopio' s claim. Thus, the Boa rd member should have informed Mr. Procopio that the i ssue of in-servic e ex posure to herbic ides was be ing ove rlooked, a nd the Board member' s failure to do so thus constitutes err or. See id

. at 493-94 (explaining that a Boa rd m ember "c annot ignor e a lack of evidenc e in the rec ord on a materia l issue and not sug g est its submissi on, unless the

rec ord (or the claimant a

t [ the] hearing ) cle arly

shows that such evide nce is not ava ilable" ). Second, the Secre tary ' s argument t h at t h e issuance of a pre- hear ing Statement of the Case

cure s a Boa

rd member' s failure to sug g est the submissi on of overlooke d evidenc e essentially evisce rate s the duty require d by § 3.103(c) (2). I f the Secre tary ' s arg ument wer e corr ect, then ever y claimant would have actua l knowledg e of the evidenc e nece ssary to substantiate a claim at the time of a Boar d hear ing beca

use S tatements of the Case pr ece de Substantive Appea ls to the Boar d, see 38 U.S.C. § 7105, and the Boa rd member, there fore , would never be obligated to perf orm that duty

. Cf. Cuevas v. Principi , 3 Vet.A pp. 542, 548 (1992) (holding that a pre- hear ing notice letter identify ing the evidenc e nece ssary to substantiate a claim was not sufficie nt to satisfy § 3.103(c) (2))

. Consequently , the Court must reje ct t h e S ec re t ary ' s proposed prejudicia l err or analy sis beca use it rende rs a portion of § 3.103(c) (2) a leg al nullity

. See, e.g. , Buchanan v. Nicholson , 451 F.3d 1331, 1 3 36 (F ed. Cir. 2006) (re jecting the Secre tary ' s proff ere d interpre tation beca

use it "w ould rende r portions of the statutes and r eg ulations [ g overningclaims for V A bene fits] meaning less")

.
10Ba sed on the for egoing, the Court conclude s that the Boa rd member conducting the September 2010 video confe renc e hear ing did not comply with her duties to appr ise Mr. Procopio of the elements of his claims that still neede d to be proven and to sug g est the submissi on of evidenc e there of that he might have overlooke d. See Bryant , 23 Vet.App. at 496-97. As explained above, the Boa rd member made no eff

orts to explain to Mr. P ro co p io that he neede d to submit evidenc e reg arding his in-servic e exposure to h e r b ic id e s , d e s p it e te stimony indicating that he was unawa re that this element of his claims rema ined outstanding and that he was confuse d about what evidenc e was
nece ssary to substantiate his claims. See id

. at 499 (explaining that "pr ejudice arises from the failure of the hear ing office r to assure the 'cl ar i t y and completene ss of the hear ing rec ord,' and the lost additional opportunity to try and subm it such evidence before [t he] claim [ is] finally adjudicate d" (quoting 38 C.F.R. § 3.103(c )( 2 ))) (interna l citations omitted). There fore , vacatur and rema nd is

war rante d. See Tuck

er v. W est , 11 Vet.App. 369, 374 ( 1998).

B. O ther Ar g uments Al t h o u g h the Court has alre ady deter mined that rema

nd is nece ssary , the Court will

never theless addre ss Mr. Procopio' s rema ining arguments. See Quirin v. Shinseki , 22 Vet.App. 390, 396 (2009) (holding that the Court may addre ss an appellant' s other arguments afte r deter mining that

rema nd is warr anted to provide g uidance to the Boa rd). 1. Reasons or Bases Mr. Procopio contends that the Boa rd provided an inadequate statement of rea sons or bases for its deter

mination that he was not exposed to herbic ides in service

. Specifica l l y , M r. Procopio points to a particula

r passag e in the Boa

rd decision discussing "a simil ar Australian study " that VA previously revie wed and deter mined was insufficient to support an extension of the presumption of exposure t o h er b i cides to simil arly situated veter ans, and asser ts that "the Boa

rd' s err or was
e s s e n ti a ll y [a d

ju dicating ] whether the evidenc e prese nted by [Mr. Procopio] was sufficie n t to w a r r a n t presumptive service connec tion for all veter ans in his ci rcumstanc es, rathe r than direct service

connec tion based o n t he unique fac ts of his claim." Appellant' s Br

. at 12 (empha sis in orig inal). This arg ument is not supported by the re cord.

11Although Mr. Procopio is corr ect that the cited passag e perta ins to presumpti v e s er vice

connec tion, he ignor es t he fact t hat t he Board separately considere d whether the R oy al Aust ralian Navy study that he submitt ed was sufficie nt to demonstrate exposure to herbic ides in service for the purposes of establishing direc t service connec tion and deter mined that it wa s not. To that end, the Boa rd re cited the law with r espec t to the probity of medical treatise evidenc e and noted that "[t]he article in the curr ent ca s e d o es n o t provide statements for the fac ts of [Mr. Procopio]'s specific

case "–na mely , it did "not show to any deg ree of specific ity that [he] was exposed to Ag ent Ora ng e while drinking water

on the [U.S.S

. Intrepid

]." R. at 12. Consequently , the B oard c oncluded that the Roy al Australian Navy study was "too g ener al in nature to provide, alone, the nece ssary evidenc e to show that [Mr. Procopio] was exposed to Ag ent Ora ng e while onboard [t hat ship] ." Id .; see also Haas v. Peake , 525 F.3d 1 1 6 8, 1194 (2008) (noting VA scientists' and experts' problems with the Roy al Australian Navy study , as enumer ated in 73 Fe d. Reg. 20,566, 20,568 (Apr. 16, 2008)). Be cause the foreg oing discussion was sufficient t o enable M r. P ro copio to understand the prec ise basis for the Boa

rd' s decision an d t o fa ci litate revie w in this Court, the Court conclude s that the Boa rd' s statement of rea sons or bases was not ina dequate in that r eg ard. See Gilbert v. Derwinski , 1 Vet.App. 49, 57 ( 1990). 2. Duty To Assist Mr. Procopio also ar g ues that the Boar d' s deter mination that VA satisfied its duty to assist him in substantiating his claims was clea rly err oneous beca

use VA (1) "f

ailed to comply with its own pro ce d u res for investigating claimed exposure to herbic ides in service outside of the landmass of Vietnam," and (2) made "no effort .

. . to confirm whether the water distil lation method describe d

12in the [R oy al] Australian Navy stud[ y ] was used aboar d the U.S.S. Intrepid ." Appellant' s Br

. at 15, 4 19 (italics adde d). Wit h respe ct to Mr. Procopio' s first contention, t h e M 2 1 -1MR direc ts the reg ional office , "[ i] n all case s wher e a [v] eter an claims that he/she serve d on a ship that stored or transporte d herbic ides," to place in the veter an' s claims file a copy of th e m emora ndum prepa

red by the J oint Service Records Re s ea rc h C enter stating that it "ha s no evidenc e to support [an alleg ation] of herbic ide exposure based solely on shipboard service ." M21-1MR, pt. I V, subpt. I I , ch. 2, § C-10(l). Although the Secre tary conce des that this memorandum was not place d in Mr. Procopio' s claims file, Mr. Procopio fails to demonstrate prejudice

. See S h inseki v. Sanders , 556 U.S. 396, 410 (2009) (appe llant bear s burden of demonstratingprejudice on appea l). The memorandum is intended to serve as a "substitute for individual inqui ri es t o t h e [VA Compensation and Pension] Service ' s Ag ent Ora ng e mailbox and to the [J oint Service Records Resear ch Center]" beca

use the J oint Service Records Resear ch Center "ha s found no evidenc e that indicates Navy

. . . ships transporte d tactica l herbic ides from the United States to the Republi c of Vietnam or that ships operating off the coast of Vietnam used, stored, tested, or transporte d tactica l herbic ides," "c annot document or verify that a shipboard Veter an was exposed to tactica l herbic ides based on contac t with airc raf t that flew over Vietnam or equipment that was used in Vietnam," and "c an provide no evidenc e to support a Veter an' s claim of exposure to tactica l herbic ide ag ents while serving aboar d a Na

vy . . . ship dur ing the Vietnam era ." M21-1MR, pt. I V, subpt. I I , ch. 2, §§ C10(l), (m ). Consequently , any rema nd to the Boa

rd to place that memorandum in Mr. Procopio' s claims file or for a J oint Service Records Resear ch Center reque st would be futile b ec au s e i t h as alre ady been de termined that no such re cords e x ist. See Soy ini v. Derwinski , 1 Vet.App. 540, 546

T he Court notes that Mr. P ro cop io do es not argue that the Bo ard had a duty to seek clarification of Dr. Grad o's 4 Octob er 20 10 letter. See Sa vag e v. Sh inseki , 24 Vet.App. 25 9, 27 0 (2 01 1) (holding that VA ha s a d ut y t o clarify am biguous private m edica l opinions in lim ited c ircum stances, w here "the m issin g inf

or m ation is relevant, f

actual, an d ob j ective" ); Nieves-Ro drigu ez v. Pea ke , 22 Vet.App. 29 5 , 3 0 0 ( 2 0 08 ) (explaining that the Court' s pr ior caselaw

" e stablish[es] that the content of inf or m ation and evidence received by VA m ay req uire an app ro pr iate r e sp o ns e , consistent w ith the duty to assist " ); Dave s v. Nicholso n , 21 Vet.App. 46 , 51 -52 (2 00 7) (" Where

. . . the m edica l exam iner specifically states that a m edica l op inion cannot be pr ovided w ithout inf or m ation not currently available, the Secretar y ' s duty to assist req uires that th e Secr etary de term ine w

heth er that inform ation m ay be rea sonably

ob tained, and if so, to m ake eff or ts to ob tain it.

. . ." ). T herefore, the Cour t d e e ms a ny such argum ent abando ned. See Grivois v. Brown , 6 Ve t.App. 1 36 , 1 38 (1 99 4) (hold ing that issu es or claim s not argued o n app eal ar e co nsi der ed abando ned). 13(1991) (holding that the Court need not order a remand based on a technica l err or of law wher e a

rema nd would unnece ssarily impose additional burdens on the Boa rd with no benef

it flowing to the veter an). There fore , the Court conclude s that Mr. Procopio has faile d t o ca rry his burden of demonstrating that VA committed prejudicia l err or in failing to include that memorandum in his claims file. See 38 U.S.C. § 7261(b)( 2) (re quiring the Court t o "take due acc ount of the rule of prejudicia l error ") ; Sanders , supra ; Conway v. Principi , 353 F.3d 1369, 1374 ( Fe d. Cir. 2004). Wit h respe ct to his second contention, Mr. Procopio acknow ledg es that VA previously had made an inquiry and was "una ble to obtain officia l co n fi rm at i o n
. . . from the Depa rtment of Def ense" that any U.S. Navy ships used that proce ss, 73 Fe d. Reg

. 20,363, 20,364 (Apr. 15, 2008), but never theless argues that he "f

ails to see why the U.S. Navy , pursuant to a clea r reque st based on the fa cts of this particular case , would be unable to determine w hether the U.S.S. Intrepid

utiliz ed [t hat] ty pe of water distil lation. .

. ." Appellant' s Reply Br

. at 5 (italics added)

. Although this may be true, he fails to identify –and the rec ord does not ref lect–whe re in the rec ord he reque sted that VA obtain information as to whether the U.S.S. Intrepid used the evapor ative distil lation proce ss descr ibed in the Roy al Australian Navy study

. He also fails to demonstrate why , g iven the response to VA' s g ener ic reque st reg arding use of that proce ss by U.S. Navy ships, VA should have submitt ed

an additional, more tailored, reque st for information, specific to the U.S.S. Intrepid

. See Robinson

v. Peak e , 21 Vet.App. 545, 552 (2008) (B oard must addre ss all issues raised by the claimant or
rea sonably by the rec ord), aff' d sub nom. Robinson v. Shinseki , 557 F.3d 1355 (F ed. Cir. 2009); see als o 3 8 U. S

. C. § 5103A(b)( 1) (" [T] he Secre tary shall make rea sonable eff orts to obtain rele vant

rec ords (including private rec ords) that the claimant adequately identifies to the Secretary

. . . . " (empha s i s ad d ed )); Hilkert v. W est , 12 Vet.App. 149, 151 (1999) (en banc) aff' d per curiam , 2 3 2 F. 3 d 9 0 8 (F ed. Cir. 2000) (table)

. Of course , in light of the need to rema nd this matter, M r. Procopio may pursue this matter o n rema nd. See Kay v. Principi , 16 Vet.App. 529, 534 (2002) (noting that, on rema

nd, claimants may prese nt, and the Boa rd must consider, any add i t i o n al evidenc e and a

rg ument in support of rema nded matter s). On rema nd, Mr. Procopio is fre e t o s u b m i t additional evidenc e, including the ty pes of alternative evidenc e of herbic ide exposure identified in his reply brief, and argument in acc ordanc e with Kutscherousky v . W

est , 12 Vet.App. 369, 372- 73 (1999) ( per c uriam order). See Kay , supra
.

14"A rema

nd is meant to entail a critica l examination of the justification for the decision" by the Boa rd. Fletche r v. Derwinski , 1 Vet.App. 394, 397 (1991). I n addition, t h e Bo ard shall proce ed expeditious ly , in acc ordanc e with 38 U.S.C. § 7112 (expedited treatment of r emande d claims).

IV. CONCLUSION Upon consideration of the fore g oing, the Marc h 16, 2011, Boa rd decision is VACATED and the matter is REMANDED for r eadjudication consistent with thi s decision.

15