Do You Really NEED that Board of Veterans’ Appeal (BVA) Hearing?

CCK Law: Our Vital Role in Veterans Law

The Board of Veterans’ Appeals, or BVA, has a significant backlog of hearings.  As a result of this, many veterans have been left to wait longer to receive a decision on their VA claim.  Continue reading to learn more about the advantages and disadvantages of choosing a BVA hearing.

Veterans’ Options for Board of Veterans’ Appeals (BVA) Hearings

Veterans have different options for Board Hearings, depending on whether their claim is in the Legacy system or the new system under the Appeals Modernization Act (AMA).  Below are some of the examples:

Central Office Hearing—A hearing which is at the Board of Veterans Appeals in Washington DC.

Regional Office Hearing—A hearing at the local VA Regional Office.  The judge is at these hearing via virtual link.

Virtual Tele-hearing—Hearing from any location that has an internet or device capability.

Travel Board Hearing—This option is only available in Legacy.  In this instance, the Board judge will preside over a hearing at the local Regional Office in person.

What is the Fastest Option for a BVA Hearing?

Currently, the fastest option for veterans to receive a hearing is through the virtual tele-hearing option.  VA has made this option available largely due to the COVID-19 pandemic.  The Board of Veterans’ Appeals also encourages veterans to use virtual tele-hearings, as many of the Regional Offices are still closed on account of the pandemic.  Many veterans may have anxieties about leaving their house unnecessarily and facing risk of exposure, so this option allows veterans to attend hearings from the comfort and safety of their own homes.

However, there are technical difficulties that can inhibit these tele-hearings.  These could include connection issues such as a slow or disrupted internet connection, incompatibilities between the veteran’s device and the Board’s tele-video platform, or the veteran may not be familiar or comfortable with this technology.  The Board is currently using the same platform that the Veterans’ Health Administration uses for their virtual telehealth appointments.  This platform does mean that the veteran needs to have access to a device that can connect to the internet and also has video capabilities such as a computer, iPhone, Android, or iPad.

Why Might a Veteran Want a Hearing?

There are a multitude of reasons why a veteran may want a hearing.  Many veterans feel as though a hearing is the first time they will be able to talk to someone at VA and present their case.  Veterans might also favor being able to speak to a judge face to face.  This can allow many veterans to feel as though their claim will be more likely to be granted because VA will have a better understanding of their case.

Personalization and Persuasion

There is a more personal aspect to a hearing and, in some cases, veterans may feel they are better able to explain and convey their case through spoken word, rather than just what is in the record.  An example of this might be if a veteran is able to speak in person about their PTSD stressor and can include details such as what they saw, what they smelled, what their surroundings sounded like, or how they felt when they experienced the stressor.  Some feel that when this type of personalization is added to the case, it may make the veteran’s claim more compelling overall.  Without being able to speak in person about their condition, some veterans feel as though their claim will not be understood as well.

Why Might a Veteran NOT Want a Hearing?

One of the challenges of the VA claims and appeals system is the delay.  Wait times for hearings are substantial and take longer by nature.  Many veterans select this option when appealing, making it a popular choice that contributes to an overwhelming number of hearings that need to be held.  Veterans may want to ask themselves if they are willing to wait longer in order to have a hearing.  If not, then a hearing might not be the right option for them.

Veterans, and other claimants such as survivors or dependents, can put forth evidence in the form of statements.  VA must consider these statements the same as they would in-person testimony.  The ability to write a statement, versus having to give live testimony, may appeal to some veterans who may have difficulty public speaking or memory issues which could cause them to leave out details crucial to the case.  Typically, statements are submitted on VA Form 21-10210, or Statement in Support of Claim.  Submitted statements may also be referred to as “lay evidence.”

Credibility Considerations at BVA Hearings

One of the concerns with BVA hearings is credibility, particularly in cases where the claimant might have mental health issues, memory issues, or even just gets nervous speaking in front of people.  If the claimant’s testimony contradicts previous statements or evidence in the record, the Board judge may use that as evidence against the claimant and find them not credible.  Instead of reconciling the testimony, or facts the claimant gives, the judge may take this as the claimant being untruthful.

Judges are Assigned at BVA Hearings

The scheduling system for BVA hearings makes it so that the claimant will often not know who the judge presiding over their case is until they arrive at the hearing.  In the Legacy system, the veteran will have the same judge throughout the claims and appeals process.  This means that if the veteran loses their case and they appeal it to court and receive a remand, they will then have their appeal decided by the same judge.  In some instances, cases may get remanded three or four times and end up going back to the same judge.  This can make it challenging to win a case after a remand under certain circumstances.  It can also cause veterans to feel overwhelmed and dismayed about their case.

In the AMA system, there is no specification that the same judge must conduct the hearing and adjudicate the case.  This means that one judge could hear the case and another judge could end up adjudicating the case.  Essentially, this means that the emotional impact of the testimony can be buried and not considered in the adjudication process.  Additionally, in AMA, VA chooses what type of hearing the claimant receives.

The level of preparedness of each judge can also vary from hearing to hearing.  The nature of the scheduling system means that judges may have lots of time to review each case and prepare for the hearing, or they may have to attend a hearing and adjudicate a case with very little advance notice.

In essence, the judge should be familiar with the claimant’s file before the hearing.  However, there are circumstances where the judge may not have had time to review the file before the hearing.  This means that claimants should be prepared for both scenarios so as not to be caught off guard if the judge has not reviewed their file before the hearing begins.

Additional Delays

As mentioned above, the backlog of hearings has made the wait time substantially longer for veterans currently requesting hearings.  In addition to this, VA’s process for transcription can further delays to a veteran’s wait time.

After the hearing, VA will get a transcript of the hearing and the case cannot be decided until this transcript is printed and made available for the record.  There could be delays in the transcription process which can add to the already substantial wait times for the hearing.  The possibility for prolonged wait times may make hearings detrimental for some claimants.

Alternatives to BVA Hearings

If a veteran does not choose to have a hearing, they may still submit evidence to the Board in the Evidence Lane or, if they believe the record is complete, they can enter the Direct Docket Lane.  Decisions in either of these lanes will be made quicker than they would be in the Hearing Lane.

When submitting evidence, claimants may submit written statements.  Statements in Support of the Claim allow the veteran to write out a statement which can convey exactly what they would have wanted to say at the hearing, only in written form.

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Importance of Accredited Representation

If a veteran or claimant is going to have a BVA hearing, it is very important that they have representation.  Specifically, this representative should be accredited.  VA recognizes accredited representatives as being legally authorized and capable of assisting claimants in pursuit of benefits before the Department of Veterans Affairs.

Representation has the potential to change the outcome of a case for a veteran.  A representative may be able to help prepare the veteran for the hearing, giving insight into what questions the judge may ask and what information will be important for the claim to be granted.  The insight regarding what is necessary for a claim to be granted can be particularly valuable, especially in instances where the veteran may not understand why their claim was previously denied.

In most cases, CCK believes there are other ways to win cases without a BVA hearing, as the long wait time can outweigh the other benefits of a hearings.  However, there are times where a hearing may be appropriate or useful, depending on the facts of the case.  In instances where there are credibility issues, a hearing may be particularly useful, such as when the veteran feels the facts of their case can only be explained in person.  Hearings may also be helpful for veterans who do not have representation, since they may be able to explain why their VA submissions were not as detailed as they could have been.  The ability to speak before a judge and explain their circumstance could help the judge better understand their claim and what is in their file.  A hearing, in this case, is an opportunity for the veteran to tell their story.

Those who do have representation have a team of experts helping them to craft their appeal and tell their story in a way that VA should understand without a hearing.  This is why representation can be so beneficial to claimants, especially in instances where they may have been previously denied.

CCK also recommends opting for a virtual tele-hearing whenever possible, as these can be coordinated more easily with VA.  This option makes sense for claimants who want to get a hearing as fast as possible, though the wait time may still be substantial.

Technology Needed for Virtual BVA Hearings

Claimants who do opt for a virtual tele-hearing will need to make sure they have the following capabilities:

• Connection to the Internet
• A device that has audio and video capabilities
  • Such as an iPhone, Android, iPad, or Computer

Veterans will also want to be sure they are comfortable using this technology.  If not, they may want to enlist the help of a family member or friend who may be able to assist.

How to Withdraw Your BVA Hearing Request Correctly

In order to withdraw a BVA hearing request, the claimant will need to submit a clear statement to the Board indicating that they wish to withdraw their BVA hearing request.  This is the best option to ensure that there are minimal delays in the claim process.

The wording in this request is important, as the request could be misinterpreted if it is not worded clearly and the entire claim could be withdrawn.  The statement should specify that the claimant wishes to withdraw their request for a hearing, not their entire claim.

It is important to specify that the claimant is not withdrawing their claim or their appeal to ensure that VA does not misunderstand their request.  If the entire claim or appeal is withdrawn, there could be potential ramifications on the claim’s effective date, which could result in lesser compensation should the claim later be granted.  An accredited representative will be able to help word this statement to ensure that there are no disruptions to the process and that VA does not withdraw the claim.

VA Claim Success Rate Based on Representation at the Board

Working with an accredited attorney or claims agent can be beneficial in helping a veteran win their case.  Veterans without representation at the Board are typically less successful than those who are represented.  For veterans who are not represented, the allowed rate of decisions is roughly 26.2 percent, according to the Board’s annual report.  For veterans working with a representative, the allowed rate of decisions is about 32-40 percent.  This includes representation from Veterans Service Organizations (VSOs) which provide their services to veterans free of charge.  The data indicates that claimants with representation are more often successful than those without representation.

Getting Help with Your BVA Hearing

Deciding if you need a BVA hearing for your VA claim can be intimidating, especially when there are so many factors that need to be considered.  Claimants should know that they do not have to make these decisions alone.  If you need assistance with your VA claim, specifically with deciding if you will need a BVA hearing, the team of veterans’ lawyers at Chisholm Chisholm & Kilpatrick LTD may be able to help.  Contact us today at 800-544-9144.