Frantzis: There is no statutory right to have the same Board member who presided over a hearing decide the appeal

Frantzis v. McDonough, 35 Vet.App. 14 (2022)

HELD: under the ama, A VETERAN DOES NOT HAVE THE RIGHT TO HAVE THE SAME BOARD MEMBER WHO CONDUCTED THE HEARING DECIDE THE APPEAL.

Summary: In June 2018, veteran opts into the AMA via the RAMP. In May 2019, the veteran and his wife testify before a Veterans Law Judge. In September 2019, a DIFFERENT Veterans Law Judge issues a decision. This VLJ acknowledges the hearing testimony, but finds the medical evidence is more probative. 

At the CAVC, the veteran argues that 38 USC § 7102 requires the VLJ who held hearing to issue decision. The Secretary argues that 38 USC § 7107 controls - and this statute does not say that the Board member who conducted the hearing must write the decision. The CAVC agreed with the Secretary, noting that Congress removed the requirement that the Board member who conducts the hearing must issue the decision.

The dissent includes great language regarding the principle of fair process and the pro-veteran canon. This case was appealed to the Federal Circuit on August 28, 2022.