Hearings with the Board of Veterans’ Appeals
The Board of Veterans’ Appeals is an entity that conducts hearings and decides claims for veterans’ benefits once they have been appealed from the agency of original jurisdiction, usually a VA Regional Office. The Board partakes in what is called a “de novo review,” meaning a fresh look at the veteran’s case. They then make a decision based off the evidence of record.
When veterans file a VA Form 9, the appeal to the Board of the Veterans’ Appeals, they have the option of requesting a hearing before the Board to discuss their claim and present new evidence for their case. Veterans do not have to participate in a hearing, it is entirely optional and the choice to request a hearing will depend on each individual’s case.
What is the “hearing docket” at the Board of Veterans’ Appeals?
Under Appeals Reform, the Board provides three dockets for claimants to choose from when submitting a Notice of Disagreement: the direct docket, evidence docket, and hearing docket. The hearing docket is for claimants who want to have a hearing before a Veterans Law Judge. Hearings in the new appeals system will either take place at the Board in Washington, D.C. or via videoconference. Importantly, travel board hearings held by Veterans Law Judges at local Regional Offices will only be available to claimants in the Legacy appeals system. Overall, claimants are entitled to a hearing on any issue involved in an appeal.
What evidence is allowed during Board hearings?
Board hearings permit claimants to introduce into the record, in person, any available evidence which they consider relevant and any arguments or contentions that they may consider pertinent to their VA disability claim. Additionally, claimants have the opportunity to produce witnesses, but the witnesses must be present for the hearing. The Board will then consider the following evidence in rendering its decision:
- The evidence of record at the time of the agency of original jurisdiction (AOJ) decision on the issue or issues on appeal;
- The evidence submitted by the claimant and/or his or her representative at the hearing, to include testimony at the hearing; and
- The evidence submitted by the claimant and/or his or her representative within 90 days following the hearing
- However, the Board will NOT consider evidence submitted by the claimant after the initial rating decision but before the hearing.
What is the process involved with Board hearings?
How to Request a Hearing
Claimants have the opportunity to request a Board hearing when submitting their Notice of Disagreement. In doing so, claimants must elect the hearing docket option. Requests for hearings at any other time or in any other format will be rejected.
Board’s Determination of the Method of Hearing
The new appeals system gives the Board the authority, upon request for a hearing, to determine what type of hearing it will provide a claimant, while affording the claimant the opportunity to request an alternative type of hearing once the Board makes its initial determination. Specifically, the Board will determine if the hearing will be held in Washington, D.C. or by videoconference at a local VA office. After making its initial determination, the Board will notify the claimant and/or his or her representative of the method by which the hearing will take place.
How to Request a Change in the Method of Hearing
If a claimant declines to participate in the method of hearing selected by the Board, the opportunity to participate in the hearing will not be affected. Claimants are allowed to make one request for a different method of hearing. The Board will grant the request and then notify the claimant of the change.
Notification of Scheduling a Hearing
The Board will notify the claimant and/or his or her representative of the scheduled time and location of the hearing at least 30 days prior to the hearing date.
Board Hearing Transcript
Following the hearing, the Board must provide a copy of the hearing transcript if requested by the claimant or the claimant’s representative.
Which Type of Hearing Should I Choose?
Veterans should discuss whether or not they would like to request a hearing, and what type, with their legal representative or veteran service officer. However, there are advantages and disadvantages to the different types of hearing.
- Videoconference hearing. These types of hearings are usually quicker to schedule and more convenient for the veteran in terms of travel burden. They are typically scheduled more quickly because the hearing does not need to be worked around the VLJ’s travel schedule. These hearings will be scheduled at a local VA regional office which can lessen the veteran’s travel burden. Videoconference hearings are the same as those conducted in person in terms of structure and impact.
- In-person hearing in Washington, D.C. This type of hearing has several downsides, two of the most notable being that they can take a very long time to schedule, and the veteran must pay for the cost of travel to Washington, D.C.
In general, requesting a Board hearing of any type will add significant delays to a veteran receiving a decision. In the Board Chairman’s 2017 Annual Report to Congress, the Board was said to have held 16,626 hearings during fiscal year 2017, and states that “for those appeals that were resolved by the Board, Veterans waited, on average, 7 years from the date they initiated their appeal until resolution.” Appeals at the Board can take a long time to be resolved even without a hearing. Requesting a hearing does significantly increase the amount of time a veteran will wait for a decision.
What Happens At a Board Hearing?
The structure and guidelines of a Board hearing will be the same no matter which type of hearing you choose. Hearings are informal and while the judge will ask questions about your time in service and your conditions, you are not on trial. However, you will be testifying under oath at the hearing. You will be asked to swear or affirm that you will tell only the truth in your testimony before the VLJ.
One of the advantages of a Board hearing is that you can present your story and your case to the VLJ directly. You will offer your testimony and explain to the VLJ why you are entitled to the benefits you are seeking on appeal. The VLJ will ask questions in order to get an understanding of your case and your conditions, and if you have a representative present at the hearing, they will also ask you questions relevant to your appeal. Additionally, you can submit additional evidence for your appeal during your hearing, such as statements or medical records. The evidence will be added to your file for review by the Board.
It is important to understand that the VLJ will not decide your appeal at the hearing. A hearing is an avenue for veterans to submit evidence and explain their case to a VLJ, not a way of obtaining a decision directly. There will be a transcript of the hearing which will be added to your file in addition to any evidence you submit at the hearing. The transcript will be reviewed by the Board when it decides your appeal.
What if a claimant needs to reschedule the hearing?
Requests to change Board hearing dates may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. Examples of good cause include, but are not limited to, illness of the claimant, difficulty in obtaining necessary records, and the unavailability of necessary witnesses. Such requests must be filed with the Board in writing and explain why a new hearing date is necessary. If good cause is shown, the hearing will be rescheduled for the next available date.
If a hearing request is withdrawn, the Board decision will be based on a review of the evidence already of record and any evidence submitted within 90 days of receipt of withdrawal. Likewise, if a claimant does not appear for his or her hearing and it is not rescheduled, the Board will review the evidence already of record and any evidence submitted within 90 days of the scheduled hearing.
- Board wrongly denied referral for extraschedular TDIU, higher rating for sensorineural hearing loss
- Board prematurely denied entitlement to extraschedular referral for the Veteran’s bilateral hearing disability
- Denial of extraschedular referral for bilateral hearing loss disability rested on provision of inadequate reasons or bases
- Board Fails to Provide Adequate Examination and Discussion of Effects of Veteran’s Bilateral Hearing Loss
- BVA erroneously denies extraschedular consideration of bilateral hearing loss and tinnitus
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