§3.103-PRE AND POST AMA RE HEARINGS


In the prior post Home Alone–The AMA, a fellow NOVA member and VA Agent (Jim Radogna)  queried me on the status of the availability of hearings at the AOJ level and how they are conducted now in the post- AMA phase. I promised I would explain my comments further here and clarify it.  Mr. Radogna’s  actual question was:

“I’m confused. Your statement “There is no such thing as a DRO hearing now unless you opted to stay in Legacy. If you want something close, we have the HLR (higher level of review) available…So, a formal face-to-face hearing has evaporated into, at best, an unannounced informal hearing via telephone only if you’re lucky enough to be in the office in Seattle and not in East Bumfork, Michigan at a BVA videoconference with your Veteran.” doesn’t jibe at all with my reading of §3.103 (d). Am I missing something??? What part of §3.103 leads you to believe that Veterans aren’t any longer entitled to a comprehensive face-to-face hearing at the AOJ???

I guess I zone in on comprehensive but that isn’t quite it. The easiest way to portray this is to begin with the pre-AMA §3.103. I’ll start with the actual hearing language where it begins in the old Legacy subsection at  §3.103(c)(1),(2) (pre-2/14/2019):

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter subject to the limitations of §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans Appeals for appellate review. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or,  subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

[§20.1304 deals with a request for a change in representation of the claimant within 90 days following receipt of Notice of Disagreement.]

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee, or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record.”

The last sentence in (c)(2) has been removed and we are no longer granted this tool to have our condition(s) confirmed as debilitating at a hearing- unless….unless you’re still in the Legacy DRO hearing or a BVA hearing path. This isn’t such a loss as I’m zero for five tries both at the Regional AOJ as well as the Board. A good IMO will now have to stand in its stead and be far more “independent” than a VA-provided medical opinion.

——————————————————————————————————-

Reasonable minds can agree this is not the same language in the newer post-AMA version which I reprint below.

Let’s start with §3.103(c)(1) (post-1/19/2019):

(1) General rule.

VA will include in the record, any evidence whether documentary, testimonial, or in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim, except as prescribed in paragraph (c)(2) of this section and § 3.2601(f).

(c)(2) as mentioned in (c)(1) above says:

(2) Treatment of evidence received after notice of a decision.

The evidentiary record for a claim before the agency of original jurisdiction closes when VA issues notice of a decision on the claim. The agency of original jurisdiction will not consider, or take any other action on evidence that is submitted by a claimant, associated with the claims file, or constructively received by VA as described in paragraph (c)(2)(iii) of this section, after notice of decision on a claim, and such evidence will not be considered part of the record at the time of any decision by the agency of original jurisdiction, except as described in § 3.156(c) and under the following circumstances:

Subparagraph (c)(2) (iii)  covers the contingency of §3.156(c)(1) service department records which have never before been associated with the claims file.

§3.2601(f) acts to close the evidentiary record immediately following issuance of a decision. A higher level of review (HLR) action must rest on the evidentiary record alone forward from the decision date even if new and relevant evidence is discovered prior to the HLR.

From the above, we can see there is no mention whatsoever of  hearings being granted on request or otherwise. The regulation speaks only to  documentary, testimonial, or evidence in other form, submitted by the claimant in support of a pending claim and any issue, contention, or argument a claimant may offer with respect to a claim. Conspicuously absent is any mention of a hearing in person at the AOJ level before employee or employees while conducting a new claim (VAF 21-526EZ), a supplemental claim (VAF 20-0995) or a higher level of review (VAF 20-0996).

This is why I stated the DRO hearing-or any hearing for that matter- is no longer available as it was pre-2/14/2019. The only exception to this rule is that Legacy regulations are going to have to lie in parallel with the new AMA version for at least 50 or 75 years. If a 75 yr. old Veteran wins a CUE from 1968, s/he would be entitled-nay-required to appeal via the traditional Legacy path using the 21-0958 post 3/25/2014. Having two systems creates a paradox in these successful Motions to Revise.

We now find all the hearing related regulations have moved from (c) to (d) in the new post 2/19/2019 AMA version. But wait. Read the red highlighted sentence at the preamble to (1).

(d) The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter…

before

VA issues notice of a decision on an initial or supplemental claim.

A hearing is not available

in connection with a request for higher-level review under § 3.2601. VA will provide the place of hearing in the VA field office having original jurisdiction over the claim, or at the VA office nearest the claimant’s home having adjudicative functions, or videoconference capabilities, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Upon request, a claimant is entitled to a hearing in connection with proposed adverse actions before one or more VA employees having original determinative authority who did not participate in the proposed action. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

Summary

So, we can see a hearing can be requested at the AOJ level but the hearing may not be conducted after the initial decision. There is no mechanism to rebut an adverse finding of fact utilizing the former DRO hearing review method. The hearing, if granted, merely permits the claimant to introduce evidence or testimony in the first instance up until the time of the decision. This sham hearing process could just as easily be accomplished with paper or electronic records. Depriving a Vet of the guaranteed hearing at the AOJ level after a decision has been rendered essentially deprives him/her of that additional step of due process at this stage. Offering one telephone call (unannounced) as a panacea in a HLR venue as being tantamount to an informal DRO review hearing is ludicrous. Absent any requirement of prior notification like a Rule 33 conference, the regulation violates due process by depriving you from participating in your own funeral.  The old Legacy DRO hearings were specifically designed to allow the Veteran claimant to produce new and material evidence which might convince the VA examiner to change his mind locally and thus preserve scare judicial resources for others at the higher appellate venues.

Let me be clear. A HLR hearing which limits you to only debating the existing facts and how they were evaluated limits and constricts the very essence of ex parte justice. It’s the antithesis of a nonadversarial, Veteran friendly venue in which to present our claims.

§3.103(d)(2) pretty much parallels the above (c)(2) subsection:

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers relevant and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses must be present. The agency of original jurisdiction will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony.

 As Mr. Radogna pointed out, I was remiss in suggesting hearings were no longer permitted at the AOJ level. I apologize for any confusion in that regard. The clear and unmistakable evidence shows they (hearings) are now relegated to the front end of the process before a decision has been made. I’m sorry. I don’t see the value or purpose in this. It combines two processes into one reducing the safeguards. It merely forces a Veteran into two more choices after denial-neither of which permit that magic hearing after a decision on the claim.

Granted, a supplemental claim might cure your deficit such as lack of an Independent Medical Opinion (IMO). Likewise, if a clear and unmistakable error (CUE) occurred in the initial decision, an HLR might cure the error- but only if the adjudicator is knowledgeable enough to discern it. An HLR can be conducted by anyone at a GS 11 level or higher. This is not the DRO review of yesteryear by a knowledgeable GS 13 or 14 with many years under their belts. Wouldn’t it be far easier to suggest the claimant obtain a solid IMO prior to submitting the claim at the beginning?

To my thinking, one should never need a Supplemental claim to cure a defect. Bryant v. Shinseki and §3.103 require the hearing personnel to identify anything missing that might help explore fully the basis for possible entitlement before a denial.

I have to stand by my assessment that no meaningful hearing mechanism now exists to provide the due process Veterans enjoyed under the old pre-AMA version of §3.103. Essentially, the former Notice of Disagreement (NOD) process, as well as a request for a hearing to submit new and relevant evidence, has merely been shoved up the ladder to the BVA. This is the much-touted “Improvement” in the adjudicative process.  I’m not buying it.

It is my opinion, and probably mine alone, that the BVA is already overwhelmed and inundated with appeals. The AOJ has now moved the workload out of the Regional level. This allows them to work on just new, supplemental and HLR actions. Gone is that intermediary step of a second set of knowledgeable eyes looking at exculpatory evidence (including a hearing) which might conserve scarce judicial resources at the appellate level.

The only good that come of this is  a real attorney, in the guise of a Veterans Law Judge, will now be that second set of eyes  and conduct a hearing, if so desired.  I suspect that will produce superior justice which will probably be more error-free than that served up at the AOJ level. Statistics collected to date for 2019 show the choice of HLR or a BVA NOD are just about equal. I don’t care if a HLR only takes two months. To me that’s two months you could have invested in waiting for your docket number. Haste merely makes waste.

I hope that settles the question of meaningful hearings at the AOJ level. I think we were sold a bucket of worms which will result in more errors, less Veteran participation due to ignorance and a marked decline in compensable claims. I’ve queried numerous Veterans Service Organizations locally here in the Tacoma area and none could cogently explain to me what I just recited above.  But then virtually all were unaware that there are higher levels of compensation above 100%- i.e. SMC.

Everyone is entitled to their opinions on whether we are better protected post-AMA than pre-AMA. I don’t make the rules. I’m forced to operate by them. It works no hardship on me personally other than having to learn a new way to skin a VA cat. For my fellow Veterans who are attempting to find their way through this maze, I feel sorrow. Without a Sherpa in the form of a good VA attorney or agent, many Vets are going to find themselves on the outside looking in for eternity.

And that’s all I’m going to say about that.

 

 

About asknod

VA claims blogger
This entry was posted in Appeals Modernization Act, Complaints Department, CUE, DRO and BVA Hearings, Duty to Assist, Food for thought, Independent Medical Opinions, KP Veterans, Lawyering Up, Lay testimony, Nexus Information, NOVA Attorneys, RAMP Appeals (AMA), Tips and Tricks, VA Agents, VA AMA appeals knowledge, VA Attorneys, VA BACKLOG, VA statistics, Veterans Law and tagged , , , , , , , , , , , , , , . Bookmark the permalink.

4 Responses to §3.103-PRE AND POST AMA RE HEARINGS

  1. Jim Radogna says:

    Alex, I respectfully disagree with your statement “So, we can see a hearing can be requested at the AOJ level but the hearing may not be conducted after the initial decision.”

    38 CFR §3.103 (d)(1): Upon request, a claimant is entitled to a hearing on any issue involved in a claim within the purview of part 3 of this chapter before VA issues notice of a decision on an initial OR SUPPLEMENTAL claim.

    I agree with you that the AMA entitlement to a VARO hearing is certainly more limited than that of Legacy, but let’s be accurate as to those limitations please. And FTR, I couldn’t agree more that HLR informal conferences are as worthless as worthless could be.

    • asknod says:

      Initial or supplemental are interchangable in this context. The operable understanding is there will be no hearing after a decision is made as in “No such thing as a DRO hearing”. After the decision is promulgated, the next opportunity to avail oneself of a hearing is to file a 10182 and check off the box for hearing /submission of new evidence. The 2 regulations are printed here showing the facts. Our interpretation is immaterial. VA will do what they will anyway.

      • Jim Radogna says:

        After an initial decision but before a supplemental claim decision the Veteran clearly has a right to a hearing. So no, initial and supplemental are NOT interchangeable. As accredited agents we are now entitled to represent Veterans from the time the initial decision is made. Thus we can file a supplemental claim AND have a VARO hearing before the supplemental claim is decided. Only after that would we be limited to a BVA hearing.

  2. Emmit Collier Jr says:

    That’s a mouth FULL!!!!!!!! Good luck to all of us Veterans.

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