## Facts

- A U.S. Army veteran sought VA service connection for bilateral hearing loss, tinnitus, squamous cell carcinoma (skin cancer), and frostbite residuals of both feet.
- The VA regional office denied the claims, finding no current frostbite residuals, no service nexus for hearing loss and tinnitus, and no evidence of squamous cell carcinoma.
- The record contained VA treatment evidence of skin cancer, including Bowen’s disease (a form of squamous cell carcinoma).
- At a Board hearing, the Veterans Law Judge addressed the claimed conditions but did not clearly identify the material missing elements (including nexus) or suggest submission of specific missing evidence (such as a medical nexus opinion).
- The Board affirmed all denials, and the veteran appealed to the Court of Appeals for Veterans Claims.

## Issues

1. Whether 38 C.F.R. § 3.103(c)(2) applies to hearings before the Board of Veterans’ Appeals.
2. If it applies, what duties it imposes on a Veterans Law Judge conducting a Board hearing.
3. Whether any failure to comply with those duties was prejudicial as to each claim.

## Decision

- The court held that 38 C.F.R. § 3.103(c)(2) applies to Board hearings.
- The court held the regulation imposes two duties on the hearing officer: to fully explain material, outstanding issues and to suggest submission of evidence that may have been overlooked.
- For frostbite, hearing loss, and tinnitus, the court found any hearing error nonprejudicial and affirmed the denials.
- For squamous cell carcinoma, the court found the hearing error prejudicial, vacated the denial, and remanded for further development and readjudication.

## Legal Principles

- 38 C.F.R. § 3.103(c)(2) governs Board hearings and binds the Veterans Law Judge who conducts the hearing.
- The hearing officer must identify and fully explain the material elements still required to substantiate the claim (e.g., current disability and medical nexus).
- The hearing officer must suggest submission of missing evidence when the record lacks evidence on a material element or when hearing testimony raises an issue not supported by evidence of record.
- Relief depends on prejudicial-error analysis; a regulatory violation warrants remand only if it affected the claimant’s opportunity to substantiate the claim.

## Conclusion

The court required Veterans Law Judges at Board hearings to explain the material, outstanding elements of a claim and to suggest missing evidence when appropriate, but it affirmed denials where the record was already developed and no prejudice resulted, while vacating and remanding where the claimant was deprived of a fair opportunity to obtain critical nexus evidence.


Bryant v. Shinseki, 23 Vet. App. 488 (2010)