VARO & BVA Hearings

1. VARO & BVA Hearings:
When To Hold ’Em,
When Not To
National Association of County Veterans Service Officers
CVA Training 2019 – Cleveland, OH
Presenters:
Katrina J. Eagle, Esq.

3. Why does the claimant want a
personal hearing?
If proper basis, then submit
written request:
If elected DRO review: 38 CFR
3.2600(c)
If not yet transferred to BVA: 38
CFR 3.103(d)(1)
If at BVA: 38 CFR 20.700(a)

4. What kind of hearing was
requested?
Pre-Determination Hearing: Must
be requested within 30 days of VA
proposal to reduce or sever

38 CFR 3.105(i)
“Any time, on any issue” Hearing:
Case must still be at RO

38 CFR 3.103(d)(1)

5. 38 CFR section 3.103(d)(1):
“Upon request, a claimant is entitled
to a hearing on any issue involved in a
claim…before VA issues notice of a
decision on an initial or supplemental
claim. A hearing is not available in
connection with HLR.”

6. 38 CFR section 3.103(d)(2):
“It is the responsibility of the [VA]
employee conducting the hearing to
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 [on appeal].”

7. Hearing Prep @ RO / BVA
 Know the record (be able to tell his/her
“story”), prepare your client and provide
questions you’ll ask at hearing
 Narrow the hearing to the issue(s) on
appeal – HO will thank you!
 Ask the HO “what evidence is still needed in
order to grant this appeal?”

8. Post-Hearing
Close with list of “demands”
Transcript (always get something in
writing!)
Written follow-up
Provide missing evidence

9. Pros to Personal Hearing
Stats re: improved chances of being
granted benefits
Create/confirm a complete record
Veteran gets to speak directly to a
VA decision-maker
Advocate can determine exactly
what is needed to support a grant

10. Cons to Personal Hearing
Time (2+ years for BVA hearing).
Is it really necessary?
Can be frustrating.
Can be harmful to the veteran: “A
hearing will not normally be
scheduled solely for purpose of
receiving argument by a POA. Such
argument should be submitted in
form of written brief.”

11. Appeals Sans Hearing
Legal error(s)?
Did the RO misapply VA law?
Are there any clear violations (not
to be confused with C&UE)?
There’s more to VA law than the
benefit of the doubt . . .

12. RO fails to consider all relevant
theories of entitlement to
service connection.
Presumptive // direct

Combee v. Brown, 34 F.3d 1039
(Fed. Cir. 1994)
Polovick v. Shinseki, 23 Vet.App.
48 (2009)

13. RO fails to apply current
regulations when developing and
adjudicating claims.
Evidence submitted by Veteran
TDIU (still NOT a separate claim;
also NOT a medical determination!)
PTSD vs. any other mental health
condition

14.  Summary
 Understand the Path of a Veteran’s Claim /
Appeal; Anticipate next step and end goal
 Question everything; Keep asking “Why?”
Until The Answer Makes Sense and Cents (or
of some tangible benefit to veteran)
 Be the logical, rational, knowledgeable voice
(written and spoken) for your client
 An computer-driven system cannot be devoid
of logic and reasoning.

15.  Background Facts for VA Hearing:
 V served in South Korea from 2/68 to 11/68;
MOS = Armor Crewman and Gunner
 V filed s-c claim for IHD and PD
 VARO denied because:
a) his Army unit was not one that DoD
identified as being in an area where
herbicides were used; and
b) JSRRC said no E that V’s unit was on or
near the DMZ

16. As part of initial claim, V submitted:
1. Detailed lay statement
2. Two buddy statements detailing his
duties near the DMZ
3. Pictures of V and his buddies with the
DMZ fence in the background
4. Detailed maps of the DMZ area
5. An official military document that
detailed the areas where herbicides were
sprayed.
•V appealed and requested DRO Hearing. YOU
are his Representative. What will you present &
argue at DRO hearing?