Board hearing process presentation - Court of Appeals for Veterans

Board hearing process: An
Steven D. Reiss, Veterans Law Judge
(VLJ) at the Board of Veterans’
Appeals (BVA or Board)
Right to a Board hearing
• An appellant has a right to a Board hearing.
• 38 C.F.R. § § 20.700(a), 20.703.
Pre-hearing conference and formal
• The pre-hearing conference (which is off the
record) and the components of that process
and its imperatives; and
• The actual on-the-record hearing
Pre-hearing conference
• Is contemplated to afford the appellant and
his representative the opportunity to clarify
the issues on appeal and to discuss the
hearing procedures.
• 38 C.F.R. § 20.708.
Pre-hearing conference
• Purpose of the pre-hearing conference
• Elements and sequence of the pre-hearing
• Discussion of case law impacting hearings
Purposes of the pre-hearing
• To clarify the issues
• To explain the process to the appellant so he is
comfortable with the structure and sequence
of events
• To advise the appellant that VLJ may ask
questions so that he is prepared to respond.
• To identify any witnesses who may be
Pre-hearing conference: Purpose
• To advise the appellant that:
• Hearings conducted by the Board are non-adversarial.
• Oath or affirmation required
• Formal rules of evidence do not apply.
• Cross-examination is not permitted.
• 38 C.F.R. § § 20.700(c), 20.706
The pre-hearing conference: Elements
and sequence
• Identify the appellant (and his/her witnesses)
• Go over the basic ground rules for the
proceeding, i.e., the likely sequence of events
at the hearing.
Pre-hearing conference: Sequence of
VLJ opening
Representative’s opening statement
Representative’s questioning
VLJ questioning-3.103(c)(2)
Representative’s closing statement
Adjournment of hearing
The pre-hearing conference: Elements
and sequence
• The VLJ acknowledges the importance of the
hearing to the appellant, who has the right to
speak at any point during the proceeding.
• Advise appellant that with his consent, any
witnesses can speak on his behalf
Pre-hearing conference: Elements and
• The VLJ will note that once the hearing
actually begins (when we go on the record),
the VLJ will identify everyone in the room (or
note the different locations as most Board
hearings are now conducted by
Pre-hearing conference: Case law
impacting hearings
• Bryant v. Shinseki, 23 Vet. App. 488 (2010)
• Procopio v. Shinseki 26 Vet. App. 76 (2012)
• 38 C.F.R. § 3.103(c)(2) imposes two distinct duties on
the VLJ:
(1) a duty to fully explain the issues, and
(2) a duty to suggest that a claimant submit
evidence on an issue material to substantiating the
Pre-hearing conference: Case law
impacting hearings
• The VLJ will clarify the issues. This is critical
because sometimes, based on the pre-hearing
conference, issues may be recharacterized
• VLJ may have to inform the appellant that the
Board does not have jurisdiction over a
particular claim.
Pre-hearing conference: Case law as
to the “issues” before the Board
• Significant decisions impacting the identification of the issues:
Rice v. Shinseki, 22 Vet. App. 337 (2009)-TDIU?
Clemons v. Shinseki, 23 Vet. App. 1 (2009)-service connection
Evans v. Shinseki, 25 Vet. App. 7 (2011)-impact of selecting box
9A, which indicates that he wants to appeal all of the issues listed in
the SOC and SSOC.
DeLisio v. Shinseki, 25 Vet. App. 45 (2011)-the withdrawal of a claim
must be explicit, unambiguous, and done with a full understanding
of the consequences of such action on the part of the claimant.
Pre-hearing conference: Prior
• This relates to whether the appellant testified at
a prior hearing on some or all of the same issues
that are currently before the Board.
• Former VLJ versus a current VLJ.
• In Arneson v. Shinseki, 24 Vet. App. 379, 386
(2011) the CAVC held that a claimant has the
right to have the opportunity to testify at a Board
hearing before all the VLJs who will decide his
Pre-hearing conference:
“Housekeeping issues”
• Will new evidence be submitted?
• Will there be a request to hold the record
• Should the appeal be advanced on the Board’s
docket due to age, financial hardship or
serious illness?
Pre-hearing conference: Recap
• The purpose of the pre-hearing conference is
to clarify the issues and to ensure the hearing
goes smoothly so as to better serve the
• It must be emphasized that anything
substantive that is discussed at the prehearing conference is again addressed
explicitly on the record.
• The VLJ opening, identifying the appellant and any other
witnesses by name, the location of the hearing, the
location of the parties, the name of the
attorney/representative and veterans service organization.
• Following the Representative’s opening statement and
initial questioning, the VLJ may ask a few questions.
• As noted above, the VLJ advises the appellant that it is not
an adversarial proceeding and that the VLJ is simply
discharging his legal obligations, i.e., the VLJ is not crossexamining the appellant.
38 C.F.R. § 3.103(c)(2)
• The duty to fully explain the issues
• Duty to suggest the submission of evidence that
may have been overlooked
38 C.F.R. § 3.103(c)(2): The issue
• The discussion of the issues relates to the first
duty, i.e., Rice, Clemons, Evans, DeLisio
38 C.F.R. § 3.103(c)(2): Submission of
• As to the second duty, the VLJ has to be
familiar with the case because the VLJ must
know why the claim was denied.
38 C.F.R. § 3.103(c)(2): Submission of
• In Procopio, the VLJ, who agreed to hold the
record open for an additional medical nexus
opinion, erred in failing to explain that a nexus
opinion alone would be insufficient to
substantiate the Veteran’s claims without
evidence of in-service exposure to herbicides
38 C.F.R. § 3.103(c)(2): Submission of
• VLJ’s obligation extends to evidence not yet in existence
• As the Court noted in Bryant, in Sizemore v. Principi, 18 Vet.
App. 264 (2004), a Veteran seeking service connection for
post-traumatic stress disorder described at a hearing his
experiences in Vietnam. Id. at 274.
• VLJ should have advised the Veteran as to the types of
information that may help corroborate his claimed inservice stressors; VLJ failed to notify him that he could
submit corroboration in the form of “buddy statements.”
38 C.F.R. § 3.103(c)(2): Submission of
• The VLJ may also inquire, in either a service
connection or in claim seeking a higher rating,
whether there is any potential evidence that
may not yet be in existence that may help
substantiate the claim.
• Medical nexus statement
• Lay evidence of onset of disability in service
• Medical or lay evidence of current severity
38 C.F.R. § 3.103(c)(2)
• Also additional theories, including those not
raised by the appellant in light of the Federal
Circuit’s decision in Schroeder v. West, 212 F.
3d 1265 (Fed. Cir. 2000) and its progeny, VA
has an obligation to investigate all theories
raised by the record or raised by a
sympathetic reading of the claimant’s filing.
End of Hearing
• Following representative’s closing statement,
the VLJ will ask the appellant whether he is
satisfied with the hearing
• VLJ will express appreciation for his
• The VLJ will then formally adjourn the hearing

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