The BVA Hearing Process
Most claimants request a Travel Board hearing when they file their Form 9, but can request it at any time after the Form 9 is filed and through the end of the 90-day period that begins when the case is transferred to the BVA. The claimant will receive a letter indicating that he or she has 90 days to submit new evidence or change representatives.
Strategies for the BVA Hearing
The claimant and the attorney should meet prior to the hearing, review the claims file, and make certain that the file contains all the necessary evidence to satisfy the legal elements of proof. In addition, the attorney and the claimant should review and prepare the testimony and the evidence that will be presented. The hearing is nonadversarial. This means that there is no opposing side to offer competing evidence or to cross-examine witnesses. The Federal Rules of Evidence do not apply.
The primary issues of a nexus and an in-service occurrence should hopefully be established with the documentary evidence. Thus, it is a good idea to focus on the issues where lay evidence can buttress the case. For instance, on the issue of continuity of symptomatology, lay evidence can be very useful, and the attorney should make certain this testimony is elicited during the hearing.
In terms of basic procedure, when the claimant’s case is called, he and his attorney would go to the hearing room. Prior to the claimant and any witnesses being sworn in, an informal off-the-record discussion takes place. This informal discussion deals with the issues on appeal and what documentary evidence will be submitted.
Next, the attorney will provide an opening statement. The attorney should summarize the issues and what the testimony will show. He should also comment on the relevant legal requirements and discuss why the evidence shows entitlement to the benefits sought.
Following the opening statement, the attorney should lead the claimant and any witnesses through direct examination. The Veterans Law Judge (“VLJ”) will often then have an opportunity to ask some questions of the claimant to elicit information. The VLJ’s questioning should not be in the form of “cross-examination.”
Finally, the attorney can offer a closing statement.