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: eBene-fits just went from "No Info" to "With VLJ".

[carlie]

Update: eBene-fits just went from "No Info" to "With VLJ".

just,

About all I can suggest it to take your most pertinent evidence with you to the

video hearing and clearly bring up your points of contention into the record.

Before the hearing is over ask the judge exactly why they evaluation is at 20 percent

versus 40 percent - and discuss the VA stating pre-existing - the records that they have

not been able to locate that were in their custody - any MEB/PEB findings that are

pertinent, etc . . .

Ask the judge EXACTLY what evidence could overcome the denial and

(if they do not seem to be in agreement that your argument and the evidence currently of record,

is sufficient for a revision in the appealed decision)

then ask the judge to leave the claim pending any further action

(for a specific amount of time)

prior to you submitting whatever the judge says you need

to over come the evaluation of less than 40 percent.

WAIVER - WAIVER - WAIVER - SIGNED !

JMHO

[justrluk]

Carlie,

I will do just that (no pun intended.... well maybe some). I'll do this as well as read the statement I submitted in the "Let's Make a Deal" statement I submitted. Also, what do you mean by "WAIVER - WAIVER...."?

Thanks!!!

Edited January 10, 2013 by justrluk

[carlie]

Carlie,

I will do just that (no pun intended.... well maybe some). I'll do this as well as read the statement I submitted in the "Let's Make a Deal" statement I submitted. Also, what do you mean by "WAIVER - WAIVER...."?

Thanks!!!

The waiver prevents the BVA from having to remand

any evidence not yet considered by your VARO -

back to your VARO, for their consideration on the issue/s.

7. What is a waiver of initial consideration of evidence by a local VA office?

By law, you have the right to have the local VA office conduct an initial review of any new evidence submitted in your case, even if the case is with BVA and the evidence has been submitted directly to BVA. See 38 C.F.R. § 20.1304©. If you provide a waiver of this right, then you agree to let BVA consider the new evidence and issue a decision without your local VA office reviewing that evidence first. Alternatively, if you chose not to waive this right, BVA must then automatically remand your appeal (i.e., send your appeal back to your local VA office) so that office can conduct an initial review of the new evidence and issue a new decision. If you choose to waive initial review by the local VA office, you must submit a statement to this effect in writing with the evidence to: Board of Veterans Appeals, 810 Vermont Avenue, NW, Washington, DC 20420, or fax to (202) 565-4720. You may also waive this right on the record at a BVA hearing, if you have one.

VA_Waiver_of_RO_Consideration.pdf

[carlie]

just,

You fill out SIG and SUBMIT the WAIVER

directly to the BVA.

DO NOT SUBMIT THE WAIVER TO YOUR VARO.

If you are going to submit a WAIVER - tell

the judge this during the hearing.

I would prepare everything to read slowly, loud enough,

clearly and verbatim into the record and request a written copy

of the hearing transcripts be mailed directly to you along with verification

of your current address of record.

[carlie]

http://www.va.gov/vetapp12/Files1/1206044.txt

Concerning the issues of entitlement to higher ratings for the bilateral knee disorders and GERD, and service connection for Addison's disease, since the issuance of the last Supplemental Statement of the Case in May 2009,

additional VA outpatient records have been added to the claims file without a waiver of initial RO consideration. As the issues of entitlement to a higher rating for GERD and service connection for Addison's disease are being remanded to the RO for other reasons, the RO will have the opportunity to review these records in the first instance.

As these records pertain primarily to current treatment for GERD and Addison's disease and treatment for disorders not on appeal, no useful purpose would be served in remanding the other claims on appeal for yet more development. Such a remand of the other issues would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the appellant. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).