Preparing For A Hearing - On My Own...

[justrluk]

Good Morning -

I've received both IM and forum feedback regarding the preparation for a hearing. LSS: my hearing is in two weeks and my VSO just quit (not just me, the whole organization). I received this feedback in another thread:

Sergeant G wrote:

Justrluk,

Preparing for the BVA hearing was not as labor intensive as were earlier stages of my appeal. By the time I had my BVA hearing, I had already conducted 95% of my research as a result of preparing for DRO hearings, writing notices of disagreements, filing the substantive appeal, etc. Therefore, I just had to compile information I already had and tailor it to attack the Statement of the Case issued by the regional office.

Aside from compiling the information, I prepared by making an outline of the relevant issues and supporting arguments. Using the outline, I also practiced presenting my information. I sort of had a “script,” but my goal was to sound as though I was speaking with a conversational tone (without reading from my outline). I wasn’t sure if the Veterans Law Judge was going to ask questions throughout my presentation, or to just let me “run with it” by allowing me say everything I wanted to and then he would ask questions afterward. I would advise you to prepare with the assumption that it will be the later scenario, just so you don’t leave anything out. In my case, the VLJ already scanned my substantive appeal before the hearing and just asked a few questions to clarify my arguments. Therefore, I didn’t even go through my script/outline. However, it is definitely better to be over-prepared rather than not.

As for conducting the actual research, there are a few things to keep in mind. In law school, students are taught to use the “IRAC” method, which stands for “issues,” “rules,” “application,” and “conclusion.” First, make sure you have narrowed down the specific issues in dispute. That will provide a roadmap to finding relevant statutes, regulations, and case law (i.e., “rules”). After you do this, look at your Statement of the Case and Supplemental Statement of the Case, if applicable. Apply the law to the facts of your case. Show the VLJ how the regional office failed to comply with the law and then argue how you meet the criteria for the benefits you are seeking. Finally, make your conclusion.

Have you conducted any research so far? What sources of information have you used? I’m happy to provide additional research tips regarding sources of law and how to find them, but I don’t want to tell you stuff you may already know. Just let me know what you are looking for.

Also, if you feel comfortable sharing, please tell us what your service-connected disabilities are and what you are appealing (such as a higher rating, IU, earlier effective date, etc.). This information will help us to help you better."

Also, several elders (john999, Carlie and Berta to name a few) have responded to other posts with more info. Bottom line: the IRAC approach G mentioned is a common thread.

So, in response to G, here are my issues:

Bilateral Knees 22% (reduced from 44%)

Migraines: 50

Psoriasis: 30

Degenerative Disk Disease C5-C6: 30

Bipolar: 30

Asthma: 30

Tinnitus: 10

Hemi-Colectomy: 10

SMC-K

The issue on appeal is the bilateral knees. They reduced the rating stating the condition pre-existed service. My initial entrance exam states nothing of the kind, but all SMRs were lost after separation. I've requested the 22% be restored to 44% and that's all. I have a copy of the entrance exam, but no other documents.

G recommended an IMO, but my doc was nowhere near me at the time of entrance. I had a bad strep infection the summer after I entered active service and this is a known potential trigger. Both psoriasis and psoriatic arthritis started showing symptoms within two years of the infection, but only used OTC meds and wore knee braces under my work clothes. I didn't want to lose my job, so I tried not to make a big deal of it.

Either way, I think I need to stick to the issue that they did not use the presumption of soundness for my first period of active service (1984 - 1988) and that this is when I believe I became symptomatic.

I have started to outline Berta's references to the CFR and M21-1MR along with my best recolection of the course of events. I could use any/all help at this point.

Thanks!

[justrluk]

Update:

My experience at the BVA VTC hearing:

I arrived early, filled out the little blue card that put me in the cue and waited. My VSO came to get me within 1/2 hour. We went to her desk and discussed the history of the issue. I handed her my documents specific to the appeal. She said the documents were already in my file so I didn't need to waive rights to VARO review. I asked for this in the hearing regardless.

The hearing was cordial. The VSO asked me questions, most were "Yes/No" questions. The VLJ started asking questions because as I discussed my current condition, I mentioned that my neck is getting worse and that I have an MRI on the 28th. I also mentioned that my feet swell from time to time. He said that wasn't part of the claim on appeal and I agreed. He kept asking questions about my neck and feet. I kept saying that I didn't know if it was relevant to the issue at hand (very nicely on my part; no confrontations). I reiterated what I thought was incorrect throughout the hearing. My VSO was particularly interested in the progression of the disease (Psoriatic Arthritis). I told her I had been on immunosuppressives (Enbrel, Humira, steroids, Leflunomide) for years and that the VAMC in Augusta was the treating facility.

In the end, my VSO wrapped it up nicely. She asked that the VLJ consider ruling in my favor for a restoration of the 40% bilateral rating retro to 10/2004 OR HIGHER). I didn't expect this as we hadn't talked about it getting higher. She then said they (BVA) had my record and that they would go over it with a fine-toothed comb. I'll have to look it up, but I think the continuous use of immunosuppressives (plural for the same disease) may warrant a higher rating.

I felt as though it went well. The only thing I forgot was to ask your question: "If you do not find evidence to rule in my favor, what evidence would suffice?" Either way, I finally had my proverbial day in court. My VSO said that I shouldn't expect anything from 6 - 12 months.

I tried to take notes, but it was going so fast that I didn’t have time to write and answer questions. I asked for a transcript in the end and that any added evidence be waived from VARO review.
jrl

[john999]

I had a BVA hearing in front of traveling judge some years ago on my CUE. My lawyer was with me and had written a brief. The hearing amounted to just an intake of my brief and a few questions regarding the nature of CUE's in general. The hearing lasted maybe 15 minutes. My lawyer seemed a bit baffled that nothing was resolved and that it just seemed like an intake session. 6 months later we got a denial and then appealed to the CAVC. I was glad I had the lawyer because the judge and every other officer that has done VA hearings in the past on this subject seems to believe we are asking to reweigh the evidence when we state very clearly we are not. I am not sure of the value of BVA hearings, but you have to go there to get to CAVC.

I guess what I am saying is to just hang in there and don't expect any fast decisions either way unless your claim is just black and white and if it were you should never have got to BVA. My claim involves a lot of retro so I see why they are stalling.

[justrluk]

John,

I wasn't quite sure what to expect when I went in. I got the standard "it's informal; just relax" answers and I tried to do this, but it was nearly impossible. I thought it was black-n-white, but who knows what the judge saw/heard in my statements and responses to the questions. I'm sorry you're still waiting. I told my wife that if I have to go to the next level, I'm getting a lawyer. I'm not ready to shop just yet, but if/when the time comes, I'll be reaching out for a good one.

[john999]

If you have to go the next level you should have a lawyer. You can leave it in your lawyer's hands at that point because it is all legal arguments etc. Let's hope the BVA will resolve it. I imagine they will make a ruling and then remand it back to RO for implementation. The thing is, as you know, it takes time. Years waiting on some docket for a hearing and then back onto some other docket.

[justrluk]

Yeah, I had that sensation. I walked through the office that processes the files for BVA hearings and they were stacked up like cordwood. It's no wonder things get lost.

[justrluk]

So, I'm guessing that since my file is with the VLJ no action on other issues is possible. No resolution on a dependency claim that will be a year old in March; my COLA hasn't processed either. My AB8 still has a Dec 2011 date, so until my folder comes back all has stopped??? At least the VLJ HAS my folder, so I'm not complaining what so ever. Just making an observation. Has anyone else had this happen??