Question On Va Hearings

[Berta]

http://209.85.165.104/search?q=cache:pm60w...=1&ie=UTF-8

I might be missing something but does a claimant have the right to submit an additional claim at a hearing?

I thought hearings were focused solely on the last SOC ,or denial, or whatever and the vet can present oral argument with additional evidence as well as witnesses-etc etc -this stuff in this m21-1 link-and a separate issue can potentisally be raised but I thought- only if it was probative to what the hearing was actually for.

Do vets go to hearings with additional new claims? If they do does the VA then do something with these new claims at the hearing?

Thanks all.

[Vike17]

Berta,

If a claimant raises an issue at a hearing that is not on appeal, such as a new claim, the VA employee at the hearing must address the new issue. I suspect that a new claim raised at a hearing would probably be an Informal Claim until the claimant submitted something in writing constituting a Formal claim. I say this because if this was a hearing for an appeal, that means the veteran already has submitted VA Form 21-526. So in essence a simple letter or statement would suffice for any additional Formal claims. Does this make sense?

Also take a look at M21-1MR, Part 1, Chapter 4, §5(a);

"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."

Vike 17

[Berta]

You always make PERFECT sense Vike-

and a new claim could actually have a direct bearing on the hearing issue-

but I imagine it would be accepted as a claim and in most cases-deferred until the hearing was over?

[Vike17]

Actually, if the new claim could affect the outcome of the appeal, then the DRO would hold off on making a decision on that appeal until the new claim has been decided. Since the new claim is out of the DRO's jurisdiction, the new claim would have to be sent through the normal process, i.e. Pre-Determination Team (the whole DTA thing) and then to the rating activity. Then once the new claim is decided, the DRO would come baclk and make a decision on the appeal(s).

Vike 17

[carlie]

At my last DRO Hearing I brought up two new issues for SC and a issue that has been pending for over 20 years, never adjudicated or action taken. These are clearly stated and discussed in the transcripts. In the Rating Decision, SOC and SSOC issued after the DRO Hearing there is not one mention of any of these 3 things. I think the DRO by M21 was supposed to take some action on all 3. What do ya'll think ?

carlie

[Vike17]

Carlie,

I would suspect if the issue(s) are mentioned in the hearing transript, that would constitute an Informal claim. From the date of the transcripts, you would then have a year from the date of the transcript to put something in writing that would suffice for a Formal Claim. You wouldn't need to necassarily fill out a 21-526 to accomplish this, you have already done in reference to your previuos claims.

Vike 17

[carlie]

Vike & Berta,

1) Is a hearing with the DRO the same as an informal conference ?

2) If a new issue is brought up at a DRO hearing, (going by the information below) would it fall under DRO's responsibilities to make sure action is taken,on any new issues discussed during a hearing and contained in the transcripts?

Thanks,

carlie

From M21

14. Informal Conferences, Continued

<H5 style="MARGIN: 0in 0in 0pt">f. Who May Attend an Informal Conference</H5>The appellant and his/her representative may attend an informal conference at their discretion.

Note: If the appellant’s representative is an attorney, emphasize

· the informality of the conference

· that rules of evidence do not apply, and

· that leading questions are permissible.

<H5 style="MARGIN: 0in 0in 0pt; mso-list: skip">g. Presenting Evidence During an Informal Conference</H5>During an informal conference, the appellant or his/her representative may

· introduce evidence into the record, and

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

<H5 style="MARGIN: 0in 0in 0pt; mso-list: skip">h. Informal Conference Report</H5>Use the Informal Conference Report to

· document the informal conference, and

· describe

- all the issues in detail (Example: The veteran seeks a rating increase from 50 percent to 70 percent for post-traumatic stress disorder.)

- specific additional evidence required

- a summary of the discussion during the informal conference, and

- the course of action agreed upon by the parties.

Note: The Informal Conference Report should be placed in the claims folder.

Reference: For a sample of the Informal Conference Report, see M21-1MR, Part I, 5.C.16.

<H5 style="MARGIN: 0in 0in 0pt; mso-list: skip">i. Handling New Issues Raised During an Informal Conference</H5>If a new issue is raised during the informal conference and a decision on that issue has not been made, refer it to the appropriate activity for development and a decision.