BILHARZ V. COLLINS, _____VET.APP._____ , NO. 22-6158/NO. 23-7931 (AUGUST 14, 2025)

Pertinent issues before the Court:

1.      Whether fair process or due process of law under the Fifth Amendment requires the same Veterans Law Judge (VLJ) who conducted a Board hearing to also issue the Board’s decision.   

2.      Whether the Bryant duties apply to Board hearings under the Appeals Modernization Act (AMA).

Fair Process

Holding: VA’s practice of delegating duties to multiple VLJs in a Board appeal does not violate fair process or due process. 

Exception to the rule: The Court appears to provide a narrow exception. It stated that “a claimant could establish an as-applied violation of the Due Process Clause” such as when a VLJ conducting the Board hearing makes a favorable-finding on the record and a different VLJ issuing the Board’s decision contradicts this finding.

This exception follows the Court’s holding in Smith v. Wilkie, 32 Vet.App. 332 (2020). In Smith, the Court held that “fair process requires notice and an opportunity to respond when the Board . . . purports to reverse its prior characterization . . . that evidence is credible or otherwise satisfactory.” 32 Vet.App. at 338.

Bryant Duties

Holding: “Board members must continue to comply with the Bryant duties when conducting AMA hearings.”

Pursuant to 38 C.F.R. § 3.103, VLJs were required to, “among other things 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.”  The Court held that when implementing the AMA, “38 C.F.R. § 3.103(c) became subsection (d) and only applies to hearings prior to the initial/supplemental claim decision. However, when VA adopted 38 C.F.R. § 20.705, . . . VA expressly stated that Board members conducting AMA hearing have the same obligation to assist claimants as Board members conducting legacy hearings had under Bryant.”