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M21-1MR, Part I, Chapter 4, Table of Contents

Chapter 4. Hearings

Table of Contents

1. General Information on Hearings 4-1

2. General Conduct for Hearings 4-5

3. Scheduling and Preparing for the Hearing 4-7

4. Conducting the Hearing 4-9

5. Additional Issues Raised During the Hearing 4-15

6. Transcribing the Hearing 4-16

7. Reviewing the Evidence of Record 4-18

Chapter 4. Hearings

1. General Information on Hearings

Introduction This topic contains information on

• the purpose of a hearing

• regional office (RO) responsibility for hearings

• requesting, canceling or rescheduling hearings

• who conducts

 pre-decisional hearings

 post-decisional hearings, and

 hearings for employee-claimants

• the end product code for formal hearings

• where to hold a hearing

• attendance at hearings, and

• presenting evidence and testimony.

Change Date May 6, 2005

a. Purpose of a Hearing A hearing is a formal procedure that VA must provide at the request of the claimant or his/her representative. Its purpose is to allow the claimant to present testimony. A claimant or his/her representative can request a hearing at any time and on any issue.

A hearing can be conducted

• by video conference, or

• in person.

Reference: For more information on the purpose of a hearing, see 38 CFR 3.103©.

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1. General Information on Hearings, Continued

b. RO Responsibility for Hearings Each RO designates a person responsible for

• scheduling the hearing

• contacting the claimant and his/her representative

• maintaining records on the hearing, and

• coordinating the hearing schedule with the Decision Review Officer (DRO) or Veteran Service Center Manager (VSCM) designee.

Note: Maintain all scheduling records under RCS VB-1, Part I, Item 13-004.000.

c. Requesting, Canceling, or Rescheduling Hearings A claimant may request, cancel or reschedule a hearing in writing, by e-mail, by fax, by telephone, or in person. If this is done by telephone or in person, the DRO or VA employee receiving the request should promptly complete a VA Form 119, Report of Contact, to document the request.

d. Who Conducts Pre-Decisional Hearings Pre-decisional hearings are conducted before one or more Veterans Service Center (VSC) employees who have decision-making authority over the issue(s) involved.

e. Who Conducts Post-Decisional Hearings The DRO is empowered to hold post-decisional hearings on VBA benefit issues. The duties and authorities of the DRO may also be exercised by the VSCM.

The DRO serves as an integral member of the Appeals Team, reporting to its Coach.

Note: If the DRO participated in the original decision, another DRO or acting DRO must hold the hearing.

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1. General Information on Hearings, Continued

f. Who Conducts Hearings for Employee-Claimants In some situations, an employee of VA or a veterans service organization (VSO) is also the claimant in the hearing.

Use the table below to determine who conducts hearings for employee-claimants and service officer-claimants.

If the hearing is requested by a … Then the …

RO employee-claimant • DRO or other VSC employee at that RO

 conducts the hearing, and

 sends the transcript and any evidence to the RO of jurisdiction, and

• DRO or other VSC employee at the RO of jurisdiction makes the decision.

Note: Employee-claimants may request a video conference hearing or travel to the RO of jurisdiction for their hearing. Travel is conducted at their own expense.

VSO representative (service officer)-claimant • DRO or other VSC employee at the VSO representative’s RO

 conducts the hearing, and

 transfers the claims folder to the RO of jurisdiction, and

• DRO or other VSC employee at the RO of jurisdiction makes the decision.

Note: Service officer-claimants may request a video conference hearing or travel to the RO of jurisdiction for their hearing. Travel is conducted at their own expense.

Reference: For more information on jurisdiction and transfer, see M21-1MR, Part III, Subpart ii, 5.

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1. General Information on Hearings, Continued

g. End Product Code for Formal Hearings Use EP 174 for formal hearings. Do not clear the EP 174 until

• a decision is issued

• the appeal is withdrawn, or

• the appellant

 dies

 fails to appear, or

 cancels the hearing request.

h. Where to Hold a Hearing Hold hearings at the

• RO of jurisdiction, or

• RO nearest to the claimant’s residence.

Do not conduct hearings in the VSC work area.

The hearing is part of VA’s duty to assist and, as such, it is non-adversarial in nature. Avoid the appearance and atmosphere of a formal trial or any similar proceeding.

Note: Subject to available resources, and at the option of VA, a formal hearing may be held at any other VA facility or Federal building where suitable hearing facilities are available. Display the United States flag appropriately.

i. Attendance at Hearings The person requesting the hearing and witnesses are expected to appear in person at the hearing. An exception may be made for extenuating circumstances that prevent him/her from attending, such as incarceration or a serious medical condition.

When there are extenuating circumstances, an individual holding power of attorney may represent this person.

j. Presenting Evidence and Testimony The claimant or his/her representative can

• present documentary evidence as well as oral testimony at the hearing, and

• bring witnesses to the hearing to provide testimony, or

• make arguments and contentions with respect to the facts and applicable law.

2. General Conduct for Hearings

Introduction There are general guidelines for VA personnel’s conduct during hearings.

This topic contains information on

• the non-adversarial nature of hearings

• the obligation to assist in developing facts

• the decorum and appearance of VA personnel

• the prohibition against conveying an “expected’ decision during a hearing.

Change Date August 24, 2004

a. Non-Adversarial Nature of Hearings Proceedings before VA are non-adversarial in nature. Questions by VA employees in the nature of cross-examination are inappropriate. Structure all questions to fully explore the basis for claimed entitlement rather than with intent to refute evidence or discredit the claimant’s statements.

b. Obligation to Assist in Developing Facts VA is obligated to assist the claimant in developing facts pertinent to the claim. Make suggestions to the claimant as to the submission of evidence

• that the claimant may have overlooked, and

• that would be advantageous to his/her position.

c. Decorum of VA Personnel The VA hearing may be the only personal contact a claimant may have with VA. The claimant’s opinion of VA is influenced by

• proper hearing facilities, and

• the appearance and conduct of VA personnel, including

 courteous treatment of the claimant and his/her witnesses

 paying close attention to the proceedings, and

 expressing an openly positive interest in assisting the claimant.

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2. General Conduct for Hearings, Continued

d. Prohibition Against Conveying an “Expected” Decision during a Hearing Under no circumstances may the DRO or other authorized personnel convey the “expected” decision to the claimant or his/her representative during a hearing until the formal decision has been signed and, if necessary, approved.

3. Scheduling and Preparing for the Hearing

Introduction Schedule the hearing and prepare for it by reviewing the evidence.

This topic contains information on

• scheduling a hearing

• scheduling a hearing when a request is received without a notice of disagreement (NOD), and

• preparing for the hearing.

Change Date May 6, 2005

a. Scheduling a Hearing Schedule hearings within a reasonable amount of time from the date the request is received.

b. Scheduling a Hearing Request Without a NOD Schedule a post-decisional hearing when a hearing request is received but a NOD has not been filed.

c. Preparing for the Hearing To prepare for the hearing, review all of the issues and evidence.

Use the table below to determine how to conduct the review.

If … Then …

the review disclosed a need for additional evidence from a third-party or another issue that should be considered • request the additional evidence

• address the other issue, and

• refer the issue to the appropriate activity for development.

Note: Do not postpone a hearing for receipt of evidence.

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3. Scheduling and Preparing for the Hearing, Continued

c. Preparing for the Hearing (continued)

If … Then …

you did not receive the third- party evidence you requested provide the claimant with the standard notification that the evidence was not received.

Reference: For more information on providing standard notification to the claimant, see M21-1MR, Part I, 1.B.3.

4. Conducting the Hearing

Introduction This topic contains information on

• explaining the proceedings

• the presence of an attorney

• advising the claimant of his/her right to a representative

• the statement of the issues

• administering the oath or affirmation

• starting the hearing

• gathering testimony and asking questions

• an alternate order of testimony and questioning

• conduct during the hearing, and

• ending the hearing.

Change Date August 24, 2004

a. Explaining the Proceedings Follow the steps in the table below to greet the appellant and explain the proceedings.

Step Action

1 • Escort the claimant, witnesses, and his/her representative to the hearing room or appropriate waiting area

• introduce yourself and other VA personnel present, and

• begin the hearing without delay.

Note: Listen carefully to the correct pronunciation of names.

2 Explain the

• nature and purpose of the hearing, and

• necessity for and use of recording equipment.

3 Tell the claimant that a copy of the transcript is

• placed in the claims folder, and

• sent to the claimant, if requested.

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4. Conducting the Hearing, Continued

a. Explaining the Proceedings (continued)

Step Action

4 Tell the claimant and witnesses that they may “go off the record” to

• collect their thoughts, or

• clarify any matter.

5 Explain the necessity of an oath or affirmation.

b. Presence of an Attorney When the claimant’s representative is an attorney, emphasize

• the informality of the hearing

• that the rules of evidence do not apply, and

• that leading questions are permissible.

c. Advising the Claimant of His/Her Right to a Representative Follow the steps in the table below when the claimant is not represented by an attorney, veteran service organization (VSO), agent, or other third party.

Reference: For more information on requesting representation by a power of attorney, see M21-1MR, Part I, 3.A.

Step Action

1 Explain the availability of

• a representative, or

• assistance by a member of the VSC.

2 • Inform the claimant that there is

 no obligation to join a VSO

 no charge for representation, and

• advise the claimant that representation is not mandatory.

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4. Conducting the Hearing, Continued

c. Advising the Claimant of His/Her Right to a Representative (continued)

Step Action

3 Did the claimant request a representative?

• If yes

 take the claimant and his/her witnesses to the chosen representative

 explain the situation to the representative, and

 go to Step 4.

• If no, proceed with the hearing.

4 • Set a new time for the hearing to begin, and

• allow adequate time for the representative to review the evidence.

d. Statement of the Issue(s) State the issue(s) in detail before testimony begins. This will not be used to limit the scope of the relevant issue(s) or indicate to the claimant that testimony is to be curtailed.

Ask the claimant and his/her representative if this is their understanding of the issue(s) and clarify any misunderstandings at this time.

e. Administering the Oath or Affirmation All hearing testimony is to be given under oath or affirmation. Administer the oath or affirmation before recording begins.

Note: The DRO or presiding member of the hearing panel has the authority to administer oaths and certify documents as evidenced by VA Form 4505 series.

Follow the steps in the table below to administer the oath or affirmation.

Step Action

1 Ask the claimant and his/her witnesses to stand and raise their right hand.

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4. Conducting the Hearing, Continued

e. Administering the Oath or Affirmation (continued)

Step Action

2 Administer the oath substantially as follows:

“Do you swear (or affirm) the testimony you are about to give will be the truth and nothing but the truth?”

Note: If the claimant or any witnesses refuse to take the oath or affirmation, request a solemn declaration using words the person considers binding on his/her conscience.

f. Starting the Hearing The DRO or VSCM designee starts recording the hearing with the opening statement which includes the

• fact that a hearing is being held

• date and time of commencement of the hearing

• name of the authorized individual before which the hearing is being held

• the name of either the veteran or claimant (if not the veteran)

• file number

• fact that the claimant and any witnesses have been duly sworn, and

• brief statement of issue(s).

g. Gathering Testimony and Asking Questions The table below describes how to gather testimony and ask questions.

Stage Who is Responsible Action

1 • DRO, or

• VSCM designee • Asks the representative, if present, if he/she desires to make an opening statement, and

• gives the claimant this same opportunity.

Note: A representative is allowed to introduce the claimant’s testimony and ask questions about it.

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4. Conducting the Hearing, Continued

g. Gathering Testimony and Asking Questions (continued)

Stage Who is Responsible Action

2 Claimant Provides testimony.

3 • DRO, or

• VSCM designee Asks questions that

• are consistent with the non-adversarial nature of the hearing, and

• elicit all relevant testimony.

4 Witness(es) Provides testimony.

Note: Repeat stages three and four for any additional witnesses.

h. Alternate Order of Testimony and Questioning Some representatives may ask that the witness testify immediately after the claimant and before questioning. In this circumstance, question the claimant and witness after completion of all testimony.

Before questioning the claimant

• ask if he/she objects to any of the witnesses being present, and

• if so, excuse the witness(es).

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4. Conducting the Hearing, Continued

i. Conduct During Testimony Interrupting the Claimant

The appropriateness of interrupting the claimant or the witness(es), or suggesting areas that should be further developed during the course of testimony, depends on the individual hearing.

Limiting the Witness(es)

Exercise care and tact in limiting the witness(es) and guard against any suggestion that the testimony is not important.

Cross-examination

While cross-examination should be avoided, it is important that the claimant be questioned sufficiently to elicit all relevant testimony.

j. Ending the Hearing Follow the steps in the table below to end the hearing.

Step Action

1 • Give the claimant and his/her representative an opportunity to make a final statement when

 testimony is complete

 discussion of any area raised by questioning has been concluded

• ask if anyone wishes to add anything, and

• identify any evidence referenced in the hearing testimony that

 the claimant has agreed to furnish, and/or

 VA will attempt to acquire.

2 Explain

• VA’s procedures regarding notification, and

• that the claimant will not be provided with oral or written notification of the formal decision until it has been signed and, if necessary, approved.

3 • Note the time the hearing concludes for the record

• have the claimant complete any medical release forms needed to obtain private treatment records, and

• escort the claimant and/or witness(es) from the hearing area.

5. Additional Issues Raised During the Hearing

Introduction This topic contains information on

• handling additional issues raised during the hearing, and

• what to do when the claimant

 requests to file a NOD or substantive appeal during the hearing, or

 disagrees with a previous decision.

Change Date August 24, 2004

a. Handling Additional Issues Properly consider additional issues raised by the claimant or his/her representative during or after the hearing.

b. Claimant Requests to File NOD or Appeal If a NOD or substantive appeal was not filed, but the claimant or his/her representative indicates during the hearing that he/she wishes to file one, provide the claimant with either

• VA Form 21-4138 to prepare a written NOD, or

• VA Form 9 to file a substantive appeal.

Note: Encourage the claimant to complete the appropriate form prior to leaving the hearing.

c. Claimant Disagrees with the Previous Decision If the claimant expresses disagreement with a previously rendered decision during the course of the hearing, the DRO is responsible for preparing

• his/her decision on the issue specifically under consideration at the hearing, and

• a statement of the case concerning the other issue newly raised at the hearing, if the benefit sought is not fully granted.

6. Transcribing the Hearing

Introduction In most cases, when the hearing has concluded, transcribe the hearing.

This topic contains information on

• preparing the hearing transcript

• soliciting the claimant’s permission to not transcribe the hearing

• handling the claimant’s waiver of a hearing transcript, and

• preparing the transcript for Board of Veterans’ Appeals (BVA) transfer.

Change Date August 24, 2004

a. Preparing the Hearing Transcript If the case will be forwarded to BVA, transcribe the hearing, clearly labeling each tape with the date and issue and store the tapes until the transcript is verified.

b. Soliciting Claimant’s Permission Not to Transcribe Hearing In some situations, the DRO, or other appointed VA employee who conducted the hearing, determines with reasonable certainty that particular cases will not be referred to BVA.

Examples:

• Cases involving a complete grant of benefits.

• Instances in which the claimant is considered likely to withdraw the appeal.

In this situation, solicit the claimant’s permission not to prepare a typed transcript of the hearing.

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6. Transcribing the Hearing, Continued

c. Handling the Claimant’s Waiver of a Hearing Transcript If the claimant gives his/her permission not to prepare a typed transcript of the hearing,

• ask the claimant to sign the following statement at the hearing: “I hereby waive any requirement that the record of my hearing will be transcribed. A hearing transcript will be prepared if my records are eventually referred to the Board of Veterans’ Appeals for a decision on this issue,” and

• secure the tape recording or other electronic record in the claims folder for a period of at least two years after the hearing, at which time it will be recycled or destroyed.

d. Preparing the Transcript for BVA Transfer If the case is transferred to BVA for consideration of the issue(s) that was the subject of the hearing, place a transcription of the recording in the claims folder.

7. Reviewing the Evidence of Record

Introduction Review the evidence of record after the hearing.

This topic contains information on

• types of testimony

• a definition of argument

• analyzing the testimony for credibility and value

• competency of witnesses

• requesting corroborative evidence

• handling new issues, and

• when to request VA exams.

Change Date August 24, 2004

a. Types of Testimony Testimony is evidence presented as either

• written testimony

 in the form of affidavits, or

 certified statements, or

• oral testimony which consists of evidence sworn under oath.

Example: Testimony, as evidence, may include statements relating to

• history

• symptoms

• etiology

• employment, and

• treatment.

b. Definition: Argument Argument is an effort to establish a point by a course of reasoning.

Example: Contentions, inferences, or explanations offered by the claimant or representative as to why the evidence supports granting the benefit sought.

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7. Reviewing the Evidence of Record, Continued

c. Analyzing the Testimony for Credibility and Value Analyze the credibility and value of testimony presented by the claimant and others who testify on the claimant’s behalf.

Note: Take care to distinguish between testimony and argument.

d. Competency of Witnesses Only a witness qualified as a medical expert can provide medical determinations. A medical expert must have education, training, and knowledge in medicine.

Lay testimony concerning etiology or diagnosis of a medical condition is generally of no probative value. However, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. (38 CFR 3.159(a)(2))

e. Requesting Corroborative Evidence Under the Veterans Claims Assistance Act of 2000, the hearing official has a duty to assist the claimant in obtaining evidence to support his/her claim.

If the claimant identified sources of information or evidence while testifying that corroborates the claim

• attempt to obtain the additional evidence, and

• do not make a final decision on the claim until development has been completed.

Example: The claimant states that he was treated by Dr. John Smith, and Dr. Smith’s report is not in the file. Reasonable efforts must be made to obtain that report before making a decision.

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7. Reviewing the Evidence of Record, Continued

f. Handling New Issues If the claimant raises a new issue(s) separate from the decision being appealed

• resolve the new issue(s) at the same time as the decision on appeal, if possible, or

• refer the issue(s) to the appropriate VSC activity for development and decision.

Note: Do not delay making a decision on the issue(s) that was the subject of the hearing pending a decision on the new issue(s).

g. When to Request VA Exams If, during the course of a hearing or review of the claims folder, it is determined that an exam should have been or should now be ordered based on new evidence, request a VA examination if the claimant agrees to report for the exam.