Attorneys Do It In Their Brief? VA Hearing verses A Brief

Veterans have a right to a hearing in front of a Decision Review Officer after a Notice of Disagreement is filed, and in front of a Veterans Law Judge after a Form 9 is filed after the second denial.   Although decisions clearly explain the right to a hearing, it is not always clear to the veteran. Historically although not always, traditional representatives have at times discouraged a veteran from appealing a claim and/or having a hearing. Also sometimes the one who could actually do a hearing is not the person the veteran has been personally speaking with which creates other problems. Whether a veteran representative is willing to have a hearing for the veteran may be a skills issue, a matter of convenience, or cost or it just might make sense. Some representatives such as attorneys prefer hearings others prefer to do it in their briefs.


When a claim has been adjudicated from the Regional Office to the Board of Veterans’ Appeals and then to the Court of Appeals for Veterans’ Claims (CAVC); of course, there is no hearing unless the attorney does the hearing at the court. Normally at the CAVC, the attorney does do it in his brief.   If there’s a Clear and Unmistakable Error or a matter of law, it makes more sense for an attorney to do it in his brief as well. A hearing would be a waste of time, and ultimately would put additional cost on the veteran. Other than those clear circumstances, a veteran needs to know when it’s in his best interest to have a hearing.   The veteran doesn’t always know the difference. The truth be said sometimes an attorney or other representative does not do hearings as a result of his own skills or mindset, convenience, efficiency of time or reasons of cost rather than what’s in the best interest of the veteran.


Also, there is a school of decision makers and representatives that do believe a hearing is a waste of time. They believe that if the decision maker would not be able to find it in the records, it doesn’t matter. Other representatives with a mindset like mine believe hearings are very important. They believe the adequacy of a VA examination may not be able to be challenged without a veteran being able to testify why the veteran believes the examination to be inadequate. The veteran’s testimony or the testimony of his witness can clear up any gray areas or conflicts in the medical or psychiatric records at a hearing as well. Witnesses can help the decision maker with finding which expert should be believed, the veteran’s expert witness or the VA examiner.   Moreover, when the rating schedule is subjective for any disability, testimony can assist the decision maker with interrupting subjective complaints in the veteran’s favor.


Over the years, when I was representing veterans myself, I usually requested hearings when I appealed the veteran’s claim. When the veterans hearing was actually scheduled then I would advise a veteran if it was in his best interest to not have the hearing considering time, cost, the possibility of being successful without a hearing as well as other factors. If the possibility that the claim could be resolved in the brief the veteran would be advised the hearing was not necessary.


Note, scheduling a hearing does put the VA in the position to pick up the file at a time known to the representative, so the representative can prepare at the same time as the VA.


Sometimes it is not necessary for a veteran to have a hearing and a statement in support of claim or other evidence could be sufficient in lieu of a hearing. Likewise, there are some issues that are not subjective in the ratings schedule but objective for interpretation, such as hearing loss, in these circumstances a hearing would not be warranted except for a veteran to testify that his hearing loss has worsened, and that could be done in a statement in support of claim. There are various issues involving unit records, verifying stressors, and the reconstruction of records which may influence a veteran’s representative on whether or not to have a hearing as well.


What is most important to a veteran is that a decision on whether or not to have a hearing should depend upon whether or not it’s in the veteran’s best interest to have the hearing. For you as a veteran need to know, that you do have a right to a hearing.


Is it better for you to have a VA hearing or is it better for your attorney or representative to do it in his brief?

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