“Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of [title 38 of the Code of Federal Regulations.]” 38 C.F.R. § 3.103(c)(1). “It is the responsibility of the [VA] employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position [on appeal].” 38 C.F.R. § 3.103(c)(2). This provision “imposes … two distinct duties on the hearing officer …: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.” Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (per curiam). These requirements are designed “‘[t]o assure clarity and completeness of the hearing record.'” Thomas v. Nicholson, 423 F.3d 1279, 1285 (Fed. Cir. 2005) (quoting 38 C.F.R. § 3.103(c)(2)); see also Bryant, 23 Vet. App. at 499.
“The entire thrust of the VA’s nonadversarial claims system is predicated upon a structure which provides for notice and an opportunity to be heard at virtually every step in the process.” Thurber v. Brown, 5 Vet. App. 119, 123 (1993); see Cushman v. Shinseki, 576 F.3d 1290, 1300 (Fed. Cir. 2009) (Due Process Clause applies to proceedings for veterans benefits); Gambill v. Shinseki, 576 F.3d 1307, 1310-11 (Fed. Cir. 2009) (same). The Fair Process doctrine does not prohibit administrative procedures based on a claimant’s perception that they may be “unfair.” Rather, the doctrine provides claimants with the procedural protection of requiring that they receive notice and an opportunity to be heard, not just once, but “at virtually every step in the process.” Thurber, 5 Vet. App. at 123.
In order to follow this regulatory mandate, a hearing officer “cannot ignore a lack of evidence in the record on a material issue and not suggest its submission, unless the record (or the claimant at hearing) clearly shows that such evidence is not available.” Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010) (per curiam). In regard to the duty to explain issues fully, the Court has stated that when the RO has denied a disability claim because there is no current disability, no nexus to service, or no incident in service, etc., then the Board hearing officer should explain that the claim can be substantiated only when the claimed disability is shown to exist and shown to be caused by an injury or disease in service, and the Board hearing officer’s explanation and discussion should be centered on these issues. Bryant, 23 Vet. App. at 496. In regard to the duty to suggest the submission of overlooked evidence, the Court in Bryant clarified that “nothing in the regulation limits the Secretary’s duties to advise the claimant to submit evidence only to those situations when the existence of such evidence is raised at the hearing;” rather, the hearing officer “must suggest the submission of evidence when testimony during the hearing indicates that it exists (or could be reduced to writing) but is not of record.” Bryant, 23 Vet. App. at 496- 97.
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