Friday, January 16, 2009

BVA & The Black Jesus Friday

(Currently, we are conducting a VA benefits advice outreach at The American Consulate in Cebu City. I haven't been able to do much blogging for the past week because of it. By next Monday I should be back in the saddle. In the meantime, I wrote the following post just before we left for Cebu. By the way, BVA stands for Board of Veterans Appeals).

I don’t know how many BVA hearings I’ve attended over the years, maybe 30 or so. I’ve done so representing other veterans in arguing their claims for benefits in front of various Board of Veterans Appeals judges.

The hearings are always interesting for me. Most I’ve attended have been like the ones we did last Friday, called video conference hearings where the judge hears the case real time from Washington D.C. via satellite conferencing. We sit in a small room in the embassy with basically a webcam and a microphone aimed at us, while the judge has the same setup on the other side of the world in D.C. It’s an incredibly good system with no lag at all—pretty high tech.

There were a total of 6 hearings, but only two of them were ours. The VA hearing scheduler tells all the claimants to show up at the same time, in this case all six at 9 am, and then makes them wait while the judge listens to each argument one at a time.

The messed up scheduling system reminds me of the way many physician specialists make their appointments in this country. They do it in gaggle fashion, just as VARO Manila lines up its BVA hearing appointments, where everyone shows up at once and then are told to wait their turn. I once showed up for a gastroscopy at the time I was told to show up and ended up waiting for four hours because 5 or 6 other people had arrived just before me. I suppose they get away with that ridiculous setup because hardly anyone has a job here, so I guess the idea is that no one is supposed to feel bothered (and evidently, the only people who ARE bothered by it are the whiny Americans, like me). Well, the VA has evidently adopted this same kind of maddening appointment arrangement. I suppose it’s a case of “when in the Philippines, do as they do.”

What made last Friday particularly “interesting” for everyone who had to show up for the hearings was that it also happened to be the same day as “The Procession of the Black Nazarene,” or more precisely, “Let’s take the Black Jesus for a Walk Day.” It already takes us about two plus hours to get to the embassy from Angeles City, so instead of leaving at 0’dark thirty, we had to leave about 30 or 40 minutes even before that. Five hours in a car, boy is that fun, and just wonderful on my bad back. Oh well, as long as it does some good, what the heck.

If you have never gone through a BVA Hearing, here’s the drill. Before turning on the recorder, and yes, the hearing is recorded, the judge introduces herself (last Friday I was fortunate to experience my first woman BVA judge), and then she asks everyone on the other side of the camera who they are. She also wants to know who will be doing the questioning and answering (the service rep, me, will usually lead the claimant through the questioning). Once that is all established, she turns on the recorder and announces all the participants and the issue under appeal.

I like to see my veteran claimant at least twice to prepare for the hearing. The first meeting is to discuss out loud one more time why WE KNOW that the VA was wrong in denying the claim. By this time we’ve already advanced the argument on the substantive appeal form called the Form 9, but sometimes it’s been almost a year since it was turned in, so it’s important that we get it straight in our minds again. And sometimes, more evidence has come into existence that could help buttress our case. It’s important to know that we can actually turn in new evidence like that during the hearing, as long as a waiver of local determination is also turned in. If the waiver is not done, then the regional office is supposed to readjudicate using the fresh evidence. Needless to say, we usually sign the waiver, since not doing it could possibly add another year to the process!

I like to know exactly what I’m going to say to the judge, every word. There’s nothing worse than trying to “wing it.” Try to do that and two bad things can happen: one, things are said that can hurt the claim, and two, things aren’t said that could have helped the claim. I don’t want to leave the hearings chamber in a daze due to poor planning (and lack of practice) and have the thought come to mind on the drive home, ‘Oh man, we forgot to bring up…!’ or, ‘Why did we say that; what the heck were we thinking!”

The Substantive Appeal is written by the claimant’s representative to address the Reasons & Bases for the VA decision, all included in a VA document to the claimant called “The Statement of the Case,” and often, there is an addendum to the “SOC” called, “The Supplemental Statement of the Case.” At the first meeting with the veteran, in getting ready for the BVA hearing, I like to break down each bit of denial R&B rationale, and specifically answer each on paper.

We ask “Why is the rater or Decision Review Officer wrong in making these assertions?” “What code was violated or not complied with by the VA?” With the answers to those questions in mind, everything and anything is written that we might eventually incorporate into our final appeal argument to the judge at the hearing. No stone should be left unturned. The fact that I might have missed something is what makes me lose sleep the night before the hearing, or I should say that’s one of many reasons I lose sleep.

Two important points that I always seek to drive home to my vets long before we show up at the hearing is that the judge’s time is important, so keep to the script, and on that same note, do not wander off into issues that are not listed in the SOC. Usually, the judge will politely listen when a veteran does this foolishness, but in effect it takes emphasis away from the only thing that the judge is going to address anyway, and that’s the issue at hand.

For instance, I’ve had claimants go off on tangents like, “Your honor, I just want to use this opportunity to talk about how poorly I’ve been treated at the clinic here. They won’t give me the meds or treatment I need… blah blah blah.” The judge will nod for a minute or so, but all that’s really been accomplished, if anything, is to piss her off. The judge’s job is to listen to all the evidence of THE ISSUES and to make a decision on ONLY those issues. Many times the decisions are subjective anyway, to the point that they could go either way, so why in the world would you want to alienate the one person that could make or break your case?

The point is, stay on point, and make all responses complete but as brief as possible; and by all means, be as respectful as you possibly can. That’s what I tell my guys anyway.

Within a week of the actual hearing day I like to have a practice hearing. This is where I walk my client claimant through each step of what will happen. I will have already written down all the questions that I might ask the veteran during the hearing, and I’ll also have asked him to write the answers down for me to go over on paper. Once we’ve done this, usually by email, we are ready to do a face-to-face practice hearing.

Judges hate to have things read to them, so I prefer to write all the questions and responses as point-by-point talking papers. I ask the vet to read from it ONLY if they absolutely have to. It’s rare, but some are so anxious that they need to read their answers, but I try to discourage them from doing it.

Inevitably, as we run through our practice sessions I am able to pick up on some things that either need to be emphasized at the actual hearing or completely left out. The idea is to make sure that there are NO surprises in front of the judge.

And speaking of the judges, all are different, but all have much in common in the way they run their hearings as well. They go by their own generic script I’ve noticed. They all utter the same welcoming and ending phrases, especially at the end, where they all say, “I want to thank you for coming here today. I think that the opportunity to actually hear your arguments is very beneficial… and finally, I’d like to thank you for your service. And if that’s all, I’ll bring these proceedings to a close.”

VA raters, decision review officers and judges, all attempt to be judicious and noncommittal in their reactions. Aside from their body language though, even if you come out and ask them, slyly or not, what they think will happen, they will merely say that they will consider all the evidence available and make the very best decision possible.

There ARE times though, such as last Friday, where it’s possible to figure out what direction they are swaying decision wise. Of course, I’ve been fooled by raters and DROs before, where they seem to express strong empathy and understanding for the argument, and yet, STILL come up with a decision completely counter to that apparent compassion.

At the end of the hearing, all my vets ask the same question: “How do you think it went?” Because I’ve seen what I’ve seen, I always shrug and answer, “We’ll just have to wait and see...”

1 comment:

KA said...

The VA has finally handled my GI Bill stuff. And I'm graduating this semester.