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Do You NEED That Board Hearing

Do You NEED That Board of Veterans' Appeals (BVA) Hearing?

Video Transcription:

Robert: Welcome to CCK live! Today, we are going to be discussing. Do you need a board hearing and the backlog at the board. Joining me today are Christine Clements and Brad Hennings. Board hearings have historically been an important part of the VA appeals process, Christine. What are the options today if a veteran wants a hearing?

Christine Clemens: So, veterans have a few options and I am going to talk a little bit about Legacy System versus AMA. Currently, a veteran can have a central office hearing which is a hearing at the Board of Veterans Appeals in Washington DC. They could have a Regional Office hearing which is a hearing at the local VA Regional Office. The judge at those hearings is via a virtual link. The third option is virtual tele-hearing which are hearings from any location that has internet or device capability. And the fourth option is only available in legacy. And that is a travel board hearing where the board judge presides over the hearing at the local regional office in person.

Robert: So Brad, what is the fastest option for veterans to choose if they do want to have a hearing?

Brad Hennings: Today, the fastest option is the virtual tele-hearing which is a fairly new option that the VA has made available particularly in light of the COVID-19 pandemic. So the virtual tele-hearing is definitely the fastest and it is the one that the Board of Veterans Appeals is encouraging veterans to use. Because many of the Regional Offices are still closed due to COVID and folks understandably have anxiety about sort of getting out of their house unnecessarily. And it does seem to work generally well. There can be technical difficulties, whether it is having a compatible device that works with the board’s televideo platform or the veteran’s familiarity and the ability to use that device. The board is using the same platform as the Veterans Health Administration uses for their Telehealth appointments. But again, you have to be able to use a computer or an iPhone or an iPad, or your Android device. You have to have something that connects to the internet and that has a video attached to it.

Robert: Christine, why might a veteran want a hearing?

Christine: So there are few reasons why veterans might want a hearing. For a lot of them, they feel like this is the first time they actually get to talk to someone at VA to present their case and they can speak to the judge face-to-face. So I think for a lot of people they feel like if they are able to do that, that it will be more likely that their claim will be granted because VA will have a better understanding. There is a more personal aspect to it. And I think for some cases, there are facts that you can look at in a record and it does not really tell you that much. But if somebody can explain what it was like, what it smelled like, what it sounded like, that it lends an air of personalization to the case that may not be there otherwise.

Robert: I am gonna sort of take the opposite of this and say why a veteran might not want a hearing if I could. I think one of the challenges in the system is delay, and we now know that wait times are substantial for hearings. They just take longer by nature and many veterans select this option when appealing. So you have to really think, “am I willing to wait a longer time to have my hearings?”. The other thing I would say is that people, veterans, and claimants can put evidence in the form of statements. And the VA has to consider statements the same as they would live testimony. So backlogs that both the AMA and Legacy hearings are substantial and there has been increasing wait times, it is virtually impossible to get a hearing, a Travel Board Hearing, and Legacy right now at the Regional Offices because those are mostly closed. And then there is the challenge with a veteran testifying regarding credibility challenges. Christine, could you talk a little bit about the credibility issues that we have encountered over the years?

Christine: Yes, definitely. So, I think that is one of the challenges especially if somebody maybe has mental health issues, they have issues with memory. Their statements might not be consistent and sometimes the statements that they give whether it is nerves or memory or whatever other reason, they might not be consistent with what is in the file. And the board judge can use that as evidence against the veteran that they find them maybe not credible. They think it is because it is not consistent in some way, instead of reconciling those facts, they may take that as the veteran maybe not being truthful.

Robert: So another reason you might not want a hearing is you cannot choose your judge. The scheduling system is such that you really do not know who your judge is in most cases until you walk into the hearing. In Legacy, if you have a hearing, you get the same judge throughout. So if you lose your case and you appeal it to court and you get a remand, you go back to the same judge. And in some instances, we have seen cases get remanded three or four times and go back to the same judge. And that can be challenging to win after remand under circumstances like that. In the AMA, it does not specify the same judge must conduct the hearing and adjudicate the case. So imagine testifying in front of Judge A and then Judge B decides the case. Well, how does Judge B know how you testified and the emotional impact of that testimony? I think that is a challenge. And the last part of AMA is VA chooses the type of hearing you get. Although I think there is some flexibility with changing that, they will give you the hearing that they want. And Brad, could you talk a little bit about how much does the veteran’s law judge knows about the case when you go in as a claimant or a veteran to testify?

Brad: When I think it is like so many answers in the law, and that is, it depends. I am a former Veterans law judge at the Board of Veterans Appeals and because of the nature of the scheduling system, there were times where I had my docket, meaning all of the claimants I was going to see in hearings set weeks ahead of time. And I had plenty of time to review all the files, take notes and fully prepare myself for the hearing. Unfortunately, there were times where a judge gets sick or something happens with scheduling. There are a lot of administrative problems as we know at the VA, particularly in the hearing process. And so, you may not know who you are seeing until they walk into the room. I certainly have had hearings where veterans I was not expecting had been scheduled. I was not notified and so I had to quickly familiarize myself with the file as we are conducting the hearing, basically. So the answer is, you just do not know. The VLJ should be familiar with your file, at least familiar enough to walk you through the hearing. Chances are, they are not going to be as familiar maybe as you would like them to be. And in some cases, they are not going to be familiar at all, depending on the circumstance of the case. So you just do not know.

Robert: And I think the last thing I will say before we move on from this topic about why you might not want a hearing is, after the hearing, the VA gets a transcript of the hearing and the case cannot be decided until that transcript is printed up and made available for the record. And in the past, there have been delays in the transcription process. So not only do you have to wait for the hearing, sometimes you also have to wait for the transcript to be done. So that gets to the issue of the backlog, Brad. And right now, what do we know about the backlog and why is it so high for a hearing, in particular?

Brad: The Board of Veterans Appeals has a tremendous number of hearings pending. The most recent numbers that I have seen say they have about 90,000 hearing requests pending. About 50,000 in the Legacy system and over 40,000 or 41,000 in AMA. And the reason for this is, the board has not been equipped to do so many hearings and these hearing requests have built up. Last year, they held 13,868 Legacy hearings. Well, you can think about that with 50,000 pending hearing request, that is going to take years to get through that backlog. Now, I will say the board has said that they are scheduling a lot more hearings. But particularly with COVID, it has been very difficult and they have not met their numbers. And they wanted to hold 50,000 hearings this year and they are not going to get close to that number in my opinion. So what that means ultimately is, you are talking about potentially years of wait for a hearing. Either in Legacy or the AMA.

Robert: If a veteran does not choose a hearing, they can still submit evidence to the board in the evidence lane or if they believe the record is complete, they can go into direct docket lane and their decisions will be made in either of those lanes quicker than they would in the AMA in the hearing lane. Is that correct?

Christine: Absolutely. And you know, I think a lot of times I mentioned some of the reasons why someone might want a hearing but I think sometimes, the best evidence that somebody could submit would be in writing. And so, if somebody does want to submit evidence, instead of having a hearing, they can tell the board exactly what they would have wanted to convey at the hearing and do that in the evidence lane.

Robert: I am going to share a little bit of data. I know data can be difficult to interpret, but I am just going to go to a couple of numbers here if I could. So for legacy hearings, at the start of fiscal year 2020, there were 76,000. The board held 13,000 legacy hearings and finished was 55,000 still pending at the end of fiscal year 2020 which ended in September 30th 2020. For AMA hearings, there were 11,300 at the start of fiscal year ’20, the board held 19,083 and finished with 31,584 hearings. So obviously, there is a backlog growing for hearings in the AMA. The total hearings pending was 86,000. The board currently receives about 2,000 AMA hearing request per month. The board’s goal as Brad said for this fiscal year 2021 from October 1st, 2022 to September 30th 2021 was to do 50,000 hearings and they are nowhere near that pace at this point. So it does not look realistic that they will meet that goal. The board says it has the capacity to hold a thousand virtual tele-hearings per week with technology improvements. Is this realistic, Brad?

Brad: No. And the reason is that the hearing scheduling process is very complicated. There is a lot of moving parts including technological parts. And it is a logistics issue and there just is not the manpower and the planning, in my opinion, to be able to quickly get something like that done.

Robert: Is representation, Christine, important in the court hearing process. So if a veteran or a claimant is going to have a hearing, is it important that they be represented?

Christine: Absolutely, with the caveat being that the representatives accredited, I think it is really important. Competent representation can really change the outcome for a veteran, representatives can guide the veteran with what types of questions the judge might ask, what information is important for a claim to be granted. And I think a lot of times, that sort of the most important thing is figuring out- and sometimes can be the most difficult thing for a veteran is to know where their cases and what is needed in order for VA to be able to grant their claim.

Robert: Say we want a hearing, I am a client, I come in, I want a hearing. What do you recommend? What does CCK’s advice?

Brad: In CCK’s advice is that in most cases, we do not feel that a hearing is actually necessary. We think that there are all sorts of other ways to win your case that are faster and often more effective. That being said, it is a case-by-case analysis and there are times where a hearing may be appropriate, depending on the facts of your case. If you have particular credibility issues that you feel that you need to explain, as a VLJ, I always thought hearings were very helpful for veterans who did not have representation. In the sense that they were not always as good with their VA submissions. And so getting in front of a judge, they were able to tell their story. But when you have a representative when you have someone like CCK representing you, you have a team of people who are crafting your appeal, who are crafting your message, and able to tell your story in a way that the VA should understand.

Robert: If we are gonna do this kind of hearing, Christine, obviously, the quickest way to do it is the virtual one, correct?

Christine: Yes, the virtual tele-hearing. Those are the ones that VA believes they can- you cited that number of a thousand but Brad said he does not think it is possible. But they can certainly coordinate those more easily and more quickly and they are more convenient for many veterans as long as they have the technological capability.

Robert: So let us just take a closing minute here to talk about the technology because I think that is a really important piece. My understanding is that any internet device that has a camera and audio you can use. So that could be an iPhone, for example, or an Android phone, or an iPad, or some kind of device like that, is that true?

Brad: Absolutely. And it is my understanding that many veterans have conducted their hearings that way. And what I think is really the need part of the technology is you will have the veterans law judge wherever they are located right now. That is probably at their home. You have the veteran at their home and you will have the representative somewhere else. So you have three different people all participating using either a computer or a cell phone or some other kind of device. It sort of democratizes the hearing process and it is much less burdensome on veterans and their representatives.

Robert: So I think the last piece is that veterans if they are scheduled for a hearing or asked for a hearing can always withdraw their hearing as long as they do it with a clear statement to the board saying go ahead and decide the case. So that is one option if they do not want to be delayed. Any other advice on the withdrawal, Christine?

Christine: Yes. I think it is really important that they do, as you said, make sure that the words that they use are important. So indicating that they are not withdrawing the claim or they are not withdrawing the appeal but just the request for a hearing. The other thing as I mentioned earlier, it is important to work with an accredited agent or attorney on this. The outcomes for veterans who are unrepresented at the board are not quite simply not as good. For veterans who are not represented, the allowed rate of decisions about 26.2 percent and this is by the board’s own annual report. Whereas veterans working with an agent or accredited agent or attorney, the range for the allowed decisions is 32 to 40.9 percent. So I think it is important that veterans think about that. That they know how to do it, that the credit agents and attorneys know how to do this and they will make sure that the wording is proper. There are ramifications for not doing it the right way and if the board thinks that the claim is withdrawn, there could be potential ramifications on the effective dates that veterans are awarded.

Robert: I will just add one little piece of data to your statement about the allowed range of 32 to 40, almost 41 percent, that includes veteran service organizations, and they are all accredited agents so they would be included in that as well. So I just wanted to make a point that whether you go with a veteran service organization, an accredited agent, or an accredited attorney, it is important that you have someone that is accredited in representing you. So in closing, I think my main takeaway here is that there is a delay if you go into the hearing lane. The fastest lane is the virtual lane, but you do not have to. Any other thoughts, Christine? And then we will turn it over to Brad.

Christine: Yes. I think I have sort of said this a few times. I think it is important to work with an accredited agent, attorney, or veteran service organization. If a veteran has any questions, they should not feel bound by a previous decision. And if the veteran does not know why they requested a hearing, that might be a good example of a case where they may not need one.

Brad: I agree with exactly what Christine said. It is crucial to have some kind of accredited representative help you through the process. And by help you through the process, I mean both determining whether a hearing is necessary or not. And if you do go forward with the hearing, to help you at the hearing itself. You really do not want to go in there alone. It can be intimidating, it can be challenging. And an accredited representative will be able to walk you through the steps. And certainly, in CCK, we tend not to do a lot of hearings because we feel that we can better represent veterans in other ways. But again, hearings are always an option that is available. Just make sure you get someone to give you a hand.

Robert: Christine, Brad, thank you for joining us today at CCK live. Please follow us on social media, on Facebook, and on Instagram. And thank you for joining us today.