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Updated Nov 22, 2024

In This Section
This section contains the following topics:
Topic
Topic Name
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1.  General Information on Hearings

Introduction
This topic contains general information on hearings requested and/or conducted in connection with RO adjudication, including

Change Date
January 19, 2024

X.v.1.D.1.a.  Definition:  Hearing
A hearing is a formal, recorded proceeding wherein a party presents sworn or affirmed testimony, and/or other evidence, with or without accompanying argument, that is relevant to an issue pending adjudication before the decision maker.
A claimant is entitled to a hearing on any issue involved in a claim before the Department of Veterans Affairs (VA) issues notice of a decision on an initial or supplemental claim; this includes a hearing in connection with proposed adverse actions.  A hearing is not available in connection with a request for higher-level review.
VA regional office (RO) hearings can be pre-determination or post-determination.
  • Pre-determination or pre-decisional RO hearings are on matters related to an adjudicative issue that is pending an initial or supplemental claim decision.
  • Post-determination or post-decisional RO hearings are on matters related to an adjudicated issue such as a
    • legacy appeal, or
    • proposed reduction or termination when the claimant or beneficiary requested a pre-decisional hearing, but the hearing request was not timely.
References:  For more information on

X.v.1.D.1.b.  Purpose of an RO Hearing
The purposes of an RO hearing include
  • to satisfy the claimant or beneficiary’s due process right to a requested hearing
  • to provide a claimant or beneficiary with the opportunity to present, in person, evidence material to the issue(s) including
    • their own testimony
    • testimony of witnesses, and/or
    • other evidence (exhibits)
  • to provide a claimant or beneficiary (and/or representative) an opportunity to present argument on the hearing issue(s), or
  • to emphasize the credibility of testimonial evidence through the personal presentation of testimony before the decision maker.
Note:  Do not schedule a hearing solely for a representative to offer arguments, absent a witness to offer testimony.  Arguments can be presented in writing or in an informal conference.
References:  For more information on

X.v.1.D.1.c.  Definition:  Testimony
Testimony refers to a person recounting factual matters experienced and/or offering opinions premised upon other facts.  It usually denotes a sworn or affirmed evidentiary use in an adjudication context.
Typical subjects of testimony related to RO proceedings include history/onset of an injury or disease, treatment in service and/or thereafter, current symptoms, and physical capabilities and employment.
Hearing testimony is usually oral.  Written testimonial evidence includes affidavits or other certified statements, or transcripts from another proceeding.

X.v.1.D.1.d.  Definition:  Argument
Argument is an effort to establish a point by a course of reasoning.  There is legal argument, factual argument, and argument on how the law applies to fact.  For example, a claimant and their representative might make arguments that
  • certain items of evidence are competent, credible, and probative, and establish facts
  • established facts meet the legal requirements for a benefit
  • the evidence is in relative balance regarding a point such that the benefit of the doubt may be applied
  • a regulatory term has a particular meaning, or
  • a particular case is precedential.
Forms of argument at a hearing include verbal statements made at hearing by the claimant/beneficiary or representative in an introductory or closing statement, or a written contention, or a brief filed at the hearing.

X.v.1.D.1.e.  Definition:  In Person
In person, when referring to a hearing, means that hearing participants/attendees are
  • present in the same physical space, or
  • not in the same physical space but are in the same virtual space, able to see and hear one another, and interact as if they were physically together.
Reference:  For more information on the right to an in person hearing, see 38 CFR 3.103(d).

X.v.1.D.1.f. Who Conducts Hearings
RO management assigns a claims processor with original determinative authority over the issue(s) to conduct or preside over a hearing.
Hearings held in connection with proposed adverse actions can only be conducted by employees who did not participate in the proposed action.
Important:  In the legacy appeal hearing context, this principle only means that the hearing official cannot have participated in the decision with which the notice of disagreement (NOD) was filed.  It does not require a hearing requested after an appeal decision is made (for example a statement of the case (SOC) at the NOD stage or a supplemental SOC at the substantive appeal stage) to be conducted by a second appeals staff member.
Note:  Videoconference hearings at an alternative worksite/home office may only be performed by approved employees of the station of jurisdiction (SOJ) who meet the criteria in this block.  Telework agreements, home office requirements, duty schedules, and assignment of work are the prerogative of RO management.
References:  For more information on

X.v.1.D.1.g.  Definition:  Original Determinative Authority
Original determinative authority means, with respect to RO hearings, that in assigning hearing duties, RO management will assign a hearing to a person with the appropriate job title and decision-making authority to render a decision on the issue that is the subject of the hearing.

X.v.1.D.1.h.  Policy Applications of the Original Determinative Authority Concept
The following are policy applications of the original determinative authority concept in 38 CFR 3.103(d)(1):
  • Legacy appeal hearings will be conducted by appropriate personnel as determined by the Office of Administrative Review.
  • Pre-determination and post-decisional hearings on a rating issue may be conducted by a Rating Veterans Service Representative or a Decision Review Officer.
  • In some categories of cases, there are a limited number of staff members authorized to issue a decision.  In such cases, only the designated authorized staff members can conduct hearings.  For example, limited staff members access those cases designated as sensitive or former prisoner of war.
  • In any case where more than one person is assigned to hold a hearing, at least one hearing official must have the authority to issue a decision on all issues without a concurring signature.
  • A Veterans Service Representative (VSR) or Senior VSR can conduct a hearing in connection with a non-rating determination.
  • A Fiduciary Service Representative can conduct a hearing, during the due process period, in connection with a proposed rating regarding a beneficiary’s inability to manage VA benefits unless one of the exceptions in FPM, Part I, 1.A.2.b, applies.
Reference:  For more information on pre-determination hearings, see 38 CFR 3.105(i).

X.v.1.D.1.i.  Hearing by an Employee Who Did Not Participate in the Prior Decision
The phrase did not participate in the proposed action means the hearing official did not
  • issue the decision under their sole signature, or
  • second sign the decision.
Explanation:  This is to assure the claimant/beneficiary or appellant that the hearing official will not have pre-judged the issue.

X.v.1.D.1.j.  Who Must Issue the Decision After a Hearing
The hearing official must issue the subsequent decision based on the hearing testimony.
Rationale:  Presenting testimony in person before the decision maker is key to the due process right to a hearing.  Being able to hear and see the participants during the proceedings gives the hearing official the ability to observe the appearance and demeanor of the witness, which may emphasize or highlight the credibility of that evidence among any conflicting evidence of record.

X.v.1.D.1.k.  Procedure if the Hearing Official Cannot Make the Subsequent Decision
In some cases, the hearing official may not be available to make the subsequent decision.  For example, an employee may
  • receive a promotion to management
  • transfer to a different office in VA, or
  • retire.
In such a case, notify the claimant/beneficiary that
  • the hearing official is not available to make the decision, and
  • one of the following options must be chosen:
    • appear at another hearing before a new hearing official, or
    • proceed without a new hearing; the decision maker will review the prior hearing transcript in rendering the decision.
Although in the second option the claimant/beneficiary loses the potential for personal interaction with the decision maker, this is their choice.  Evidence is generally taken at face value and a witness should only be found lacking in credibility as provided in M21-1, Part V, Subpart ii, 1.A.2.b.
Notes:
  • Notification can be oral or in writing.  However, in the event of oral communication, document the conversation with VA Form 27-0820, Report of General Information, and send a copy to the representative if one exists.
  • In the case where another decision maker is assigned to decide the claim based on the hearing transcript, that decision maker must
    • have original determinative authority over the issues, and
    • not have participated in the prior decision (in connection with a proposed adverse action).
Important:  Scenarios often arise where the pension management center is the SOJ, but the hearing official may not be available to make the subsequent decision that utilizes the information received during hearings due to
  • a request for a personal hearing at the RO closest to a beneficiary’s residence, and
  • the SOJ is not the RO closest to a beneficiary’s residence.
In such a case, and consistent with the guidance found in M21-1, Part X, Subpart v, 1.D.1.m, notify the beneficiary of the option to
  • waive their right to have the decision made by the hearing official, or
  • be provided the opportunity for a videoconference hearing with a decision-making official at the SOJ.

X.v.1.D.1.l.  Who Conducts Hearings for Employee-Claimants and VSO-Claimants
Use the table below to determine who conducts hearings for employee-claimants and Veterans Service Officer (VSO)-claimants.
If the hearing is requested by …
Then an …
an RO employee-claimant
employee at the SOJ over claims from the employee-claimant’s home station, or the Restricted Access Claims Center (RACC),
  • conducts the hearing, and
  • makes the decision.
Notes:
  • The hearing at the SOJ or RACC will be conducted by videoconference unless the employee-claimant wishes to travel to the SOJ or RACC for a personal hearing at their own expense.
  • The employee-claimant may choose to have their hearing conducted by an RO employee at the employee-claimant’s home station (the employing RO) in lieu of a videoconference hearing or travel to the SOJ or RACC.  However:
    • A home-station employee may not decide a claim of an RO employee-claimant.
    • The employee-claimant must be informed (and agree in writing) that by this choice they waive the right to a decision made by the hearing official. (Retain this waiver in the claims folder.)
    • The hearing official at the home station will send a transcript and any other evidence obtained to the SOJ or RACC.
    • An employee of the SOJ or RACC will make the decision based on the transcript and other evidence of record.
a VSO-claimant
employee at the SOJ or RACC
  • conducts the hearing, and
  • makes the decision.
Notes:
  • The hearing at the SOJ or RACC will be conducted by videoconference unless the VSO-claimant wishes to travel to the SOJ or RACC for a personal hearing at their own expense.
  • The VSO-claimant may choose to have their hearing conducted by an employee at the VSO-claimant’s home station in lieu of a videoconference hearing or travel to the SOJ or RACC.  However:
    • A home-station employee may not decide a claim of a VSO who represents claimants/beneficiaries before that RO.
    • The VSO-claimant must be informed (and agree in writing) that by this choice they waive the right to a decision made by the hearing official. (Retain this waiver in the claims folder.)
    • The hearing official at the home station will send a transcript and any evidence to the SOJ or RACC.
    • An employee of the SOJ or RACC will make the decision based on the transcript and other evidence of record.
Note:  VSOs who represent claimants before an RO fall under the same claim-handling jurisdictional policies that apply to employee-claimants.
Reference:  For more information on jurisdiction and transfer, see M21-1, Part II, Subpart ii, 3.

X.v.1.D.1.m.  Where to Hold a Hearing
Hold hearings with the attendees at the SOJ hearing facility unless an exception applies.
Exceptions:
  • In the case of employee-claimants and VSO-claimants, hold hearings as provided in M21-1, Part X, Subpart v, 1.D.1.l.
  • A hearing may be held at another RO that is nearer to the claimant’s residence with the following qualifications:
    • This hearing should be before a hearing official at the SOJ via videoconference whenever possible.
    • If a videoconference hearing is not available, the hearing may be conducted by a hearing official at the RO nearer to the claimant’s residence.  However, in such cases
      • The claim remains under the jurisdiction of the SOJ, and the decision must be made by the SOJ.
      • The claimant must be informed (and agree in writing) that they waive the right to have the decision made by the hearing official.  (Retain this waiver in the claims folder.)
      • The hearing official will send a transcript of the proceedings and any other evidence obtained to the SOJ.
      • An employee of the SOJ will make the decision based on the transcript and other evidence of record.
  • Subject to available resources, and at the option of VA, a formal hearing may be held at any other VA facility or Federal building where suitable hearing facilities are available.  This hearing will be conducted by an employee of the SOJ.
  • At the claimant’s preference, a videoconference hearing using a Veterans Benefits Administration (VBA) approved videoconference application is permitted.  When a claimant requests a videoconference hearing, the hearing official will either preside from the SOJ hearing facility or from an approved home office/alternative worksite.  Hearing administration, the assignment of work, and where work is conducted are management decisions.
Reference:  For more information on scheduling a hearing and the choice of a hearing type, see M21-1, Part X, Subpart v, 1.D.3.

X.v.1.D.1.n. RO Hearing Facility Requirements
If RO facilities allow, designate a permanent hearing room.  The following requirements apply to an RO hearing facility:
  • Do not conduct hearings in a work area, or any location where the witnesses must pass through a work area with access to restricted personally identifiable information on other claimants and beneficiaries.
  • The hearing facility should provide privacy for witness testimony, including walls and a door.
  • Display the U.S. flag appropriately.

X.v.1.D.1.o.  Facility and Other Requirements for Videoconference Hearings
Videoconference hearings must be conducted from an RO hearing facility meeting the requirements in M21-1, Part X, Subpart v, 1.D.1.n, or from a home office/alternative worksite pursuant to an approved telework agreement.
Hearings conducted from a home office/alternative worksite must be conducted with strict attention to safeguarding the privacy of witness testimony and personal information.  Accordingly, the following requirements apply:
  • The home office hearing facility must have walls and a door that must be closed for the duration of the hearing.
  • The hearing official will use a headset.
In addition, the following requirements apply:
  • A background image or effect should be utilized to avoid hearing participants’ viewing the hearing official’s work area.  RO management may require a standardized virtual background image.
  • To the extent that the hearing official’s work area is visible on camera, it must be clean, and professional in appearance.
  • Display of a U.S. flag is not required in a home office/alternative worksite.
  • Professionalism dictates that hearings should not be held in a home office/alternative worksite if there is a realistic likelihood of undue distractions or interruptions during hearings.
  • RO management may impose additional requirements.
Important:  That conducting videoconference hearings from a home office is an option does not imply that any employee assigned a videoconference hearing is necessarily permitted to conduct the hearing from a home office.  Telework agreements, home office requirements, duty schedules, and assignment of work are the prerogative of RO management.

X.v.1.D.1.p.  Tracking Hearing Requests
For information on tracking hearing requests, see

X.v.1.D.1.q.  Attendance at Hearings
Attendance at a hearing by the claimant/beneficiary and witnesses on the date and time scheduled is mandatory.
Exceptions:  Non-appearance at a scheduled hearing by the claimant/beneficiary will be excused if
  • the hearing was rescheduled or canceled up to the scheduled time of the hearing as provided in M21-1, Part X, Subpart v, 1.D.1.3
  • VA mailed the hearing notice to an incorrect address, or
  • there are extenuating circumstances constituting good cause such as
    • incapacitation from a serious medical condition
    • hospitalization
    • death of an immediate family member, or
    • incarceration.
The hearing official or other decision maker, a supervisor, or a division manager may decide whether the stated reason for not reporting to a scheduled hearing constitutes good cause.
When the claimant fails to report for the hearing without good cause, make a record annotation and update applicable systems indicating that the hearing was canceled for failure to report.  Proceed with development or a decision as applicable.
Reference:  For more information on action to take when a claimant fails to report for a pre-determination hearing without good cause, see

2.  General Conduct for Hearings

Introduction
This topic contains information on general conduct for hearings, including

Change Date
January 19, 2024

X.v.1.D.2.a.  Non-Adversarial Nature of Hearings and Questioning Witnesses
The hearing official may question witnesses, structuring all questions to fully explore the basis for claimed entitlement.  However, proceedings before VA are non-adversarial in nature.  VA does not oppose a claim.  Accordingly, the hearing official must avoid an inappropriate cross-examining style of questioning.
Cross-examination denotes supplemental questioning of a witness, called to testify in support of a party, by the advocate of the opposing party for one or more of the following purposes:
  • impeachment (discrediting the witness by eliciting facts or opinions that diminish credibility or the weight of evidence offered by the witness)
  • elicitation of facts or opinions that may be useful for additional development adverse to the party for whom the witness’s testimony was offered, and
  • witness control (to prevent explanation or elaboration).
The term also connotes an attacking or aggressive style of questioning with a belligerent/antagonistic, sarcastic, or skeptical tone that permits only “yes” or “no” answers.
Important:  The fact that an appropriate question by the hearing official may lead to information that results in, or is followed by, testimony that may show an inconsistency or otherwise negatively impact the witness’s credibility or the weight of evidence on a particular matter does not mean that the hearing official engaged in cross-examination or that the testimony is not admissible.  This is not intent to refute evidence or discredit the claimant’s statements.
References:  For more information on

X.v.1.D.2.b.  Decorum and Appearance of VA Personnel
When conducting any hearing, including a videoconference hearing, VA personnel are expected to
  • act with decorum, and
  • present a professional appearance.
Decorum means that hearing officials must
  • treat the claimant, witnesses, and representative with courtesy, even when witnesses may be angry, irritable, or critical
  • pay close attention to the proceedings, and
  • be objective and fair in questioning or comments made during the hearing.
Do not
  • express personal feelings or biases or allow those to influence the hearing proceedings
  • express skepticism, sarcasm, or anger in response to testimony
  • engage in a cross-examining style of questioning, or
  • give any suggestion of having prejudged the issue.
Professional appearance must be judged by local office directives for the standard of dress expected for interaction with claimants.  Except in the case of unusual or unforeseen circumstances (for example, an employee is assigned the task of holding a priority hearing the same day and an alternative hearing official is not available), casual outfits, such as tennis shoes, shorts, tee shirts, and jeans, are not acceptable.

X.v.1.D.2.c.  Obligation to Assist in Developing Facts
VA is obligated to assist the claimant in developing facts pertinent to the claim.  Express an openly positive interest in assisting the claimant.  If applicable (given the evidence already in the claims folder and the hearing proceedings), the hearing official should suggest submission of evidence that
  • the claimant may have overlooked, and
  • would be advantageous to their position.

X.v.1.D.2.d.  Prohibition Against Conveying an “Expected” Decision During a Hearing
The hearing official must not communicate a planned, anticipated, or expected decision or imply that a decision has been reached during the hearing.
If the claimant/beneficiary, representative, or other hearing attendee asks what the decision will be, the hearing official may say only that the decision will be communicated in writing after all the evidence is obtained and considered.

X.v.1.D.2.e.  Inappropriate Behavior by Hearing Attendees
The hearing official has discretion to terminate any hearing for inappropriate (abusive, disrespectful, aggressive, or violent) behavior by hearing attendees.  Such behavior includes, but is not limited to,
  • repeated interruption of the hearing official
  • yelling
  • insults or demeaning/disrespectful comments directed at the hearing official or any other hearing participant
  • sexual comments directed at the hearing official or any other hearing participant or that do not bear on the issues (for example, a sexual assault posttraumatic stress disorder issue)
  • threatening/menacing behavior, and/or
  • inappropriate touching, assault, or battery.
Use the table below to determine the actions the hearing official should take in response to inappropriate behavior by hearing attendees.
If …
Then …
there is any perceived risk of violence/harm to any hearing attendee
follow local office emergency/security procedures.
Note:  In emergent circumstances, the hearing official is not expected to notify the hearing attendees that the hearing is being terminated.
behavior from a hearing attendee is
  • grossly inappropriate, or
  • repeatedly inappropriate
follow local office emergency/security procedures if warranted by the facts.
Note:  In non-emergent circumstances, inform the hearing attendees that the hearing is being terminated for inappropriate conduct.
inappropriate conduct is not violent or not otherwise grossly inappropriate
consider giving a warning before terminating the hearing.
Notes:
  • Inform the hearing attendees in a courteous manner that
    • the behavior is inappropriate, and
    • further instances of inappropriate behavior will result in the hearing being terminated.
  • If, in the judgment of the hearing official, termination is warranted, inform the hearing attendees in a courteous manner that the hearing is terminated for inappropriate conduct.
Notes:
  • In exercising discretion over whether to terminate the hearing where inappropriate behavior does not rise to the level of an emergency, the hearing official should keep in mind that for many individuals a hearing is their only exposure to an actual VA employee involved in their claim. It is understandable that they may be frustrated or angry at the claim process or a decision they have received. They may also have serious disabilities, such as a mental disorder or traumatic brain injury, manifested by social impairment, diminished impulse control, or anger that predisposes them to inappropriate behavior.
  • In any cases where a hearing is terminated for inappropriate behavior, annotate the claims folder and applicable systems.
  • In any case where a hearing is terminated for inappropriate behavior, rescheduling will be permitted only upon RO discretion, and rescheduling may be conditioned on the availability of additional security for the hearing.

3. Scheduling and Preparing for the Hearing

Introduction

 This topic contains information on

Change Date

 January 19, 2024

X.v.1.D.3.a.  RO Responsibility for Hearing Administration

 Each RO designates a person responsible for
  • scheduling hearings
  • coordinating the hearing schedule
  • contacting the claimants and representatives, and
  • maintaining hearing records (including all scheduling records).
Reference:  For information on the RO’s responsibilities in organizing and managing BVA Travel Board and video hearings, see M21-5, Chapter 7, Section H.

X.v.1.D.3.b.  Scheduling of Hearings

 A hearing request can be made in writing, by e-mail, or by telephone.  A claimant may also submit a verbal hearing request at the RO.  Verbal hearing requests must be documented on a VA Form 27-0820. When a request for a hearing is received, the office’s designated hearing coordinator (or designee) will contact the claimant/beneficiary (and representative as applicable) to acknowledge the request and (as needed) clarify what type of hearing is requested (such as hearing at the RO, a hearing at another qualifying facility, or a videoconference hearing).  If the contact is verbal, document the conversation and outcome on a VA Form 27-0820. After a hearing request has been received and the type of hearing is known, the hearing coordinator will schedule a time and date for the hearing and send a letter to the claimant (and representative if applicable). Important:
  • Hearing requests and any further communication regarding the hearings must be uploaded to the Veterans Benefits Management System (VBMS).
  • The letter regarding a scheduled hearing will contain the time and date of the hearing and other details for participating in the hearing.
  • For videoconference hearings the letter should include
    • an invite for the videoconference with a link or the phone number and conference ID
    • instructions on how to join the videoconference, and the expectation that all hearing participants will appear on camera
    • the anticipated length of the hearing
    • expectations regarding privacy and choosing an appropriate private location
    • an explanation for submitting evidence other than hearing testimony, and
    • instructions on authorizing witnesses to attend the hearing.
<div” style=”box-sizing: border-box;”> For a videoconference hearing to be considered in person, as defined in M21-1, Part X, Subpart v, 1.D.1.e, attendees who are participating in the hearing by testifying or offering argument must be both visible and audible to the hearing official and vice versa.  If the claimant/beneficiary only has audio connectivity or otherwise cannot or will not appear on camera, the hearing official will not be able to conduct a videoconference hearing.  If a videoconference hearing cannot be conducted for that reason, the claimant/beneficiary may change the hearing request to a hearing at the RO or withdraw the hearing request and proceed with an informal conference.  In cases where any other participant cannot or will not appear on camera they cannot participate in the videoconference.  They may submit their testimony in a signed written statement.  Hearing attendees who are not submitting evidence or argument (for example a family member present only for support) do not need to be on camera.</div”> Inform the claimant/beneficiary that any previously unsubmitted evidence to be added to the record should be submitted by mail, in person at an RO, or electronically. An authorization form (VA Form 5571, Authorization to Disclose a Record in the Presence of a Third Party, or VA Form 21-0589, Authorization to Disclose a Record in the Presence of a Third Party, as appropriate) must be completed and submitted prior to the hearing date for each attendee other than the claimant/beneficiary and representative (if applicable) who will be present at the hearing. Reference:  For more information on VA Form 5571 and VA Form 21-0589, see M21-1, Part X, Subpart v, 1.D.4.a.

X.v.1.D.3.c.  Timely Scheduling of Hearings

 Schedule hearings within a reasonable amount of time from the date the request is received.  For pre-determination hearings, schedule the hearing for the earliest available date. Note:  For legacy appeal hearings, the following are all relevant to whether a hearing is scheduled in a reasonable amount of time:
  • the stage that the legacy appeal is in (NOD or substantive appeal)
  • the average pendency of legacy appeals in the stage
  • the individual’s appellate caseload, and
  • the existence of older and priority hearing requests to satisfy.
Important:  Expedite scheduling of hearings for all cases entitled to priority handling. Reference:  For more information on scheduling BVA hearings, see M21-5, Chapter 7, Section H.

X.v.1.D.3.d.  Providing Advance Notice of a Hearing

 When a beneficiary timely requests a hearing in response to a notice of proposed adverse action, 38 CFR 3.105(i)(1) requires VA to notify the beneficiary in writing of the time and place of the hearing at least 10 days in advance of the scheduled hearing date. Note:  A waiver of the 10-day advance notice is permissible by mutual agreement between VA and the beneficiary, and/or representative (if any). Reference:  For more information on the time limit to request a hearing in response to a proposed adverse action, see M21-1, Part X, Subpart ii, 3.B.3.

X.v.1.D.3.e.  Cancellations and Changing the Date or Type of Hearings

 A request to cancel a hearing, or to reschedule a hearing for a different date can be made in writing, by e-mail, or by telephone.  A claimant may also submit a verbal hearing request at the RO.  Verbal requests by telephone or made at the RO must be documented on a VA Form 27-0820. As provided in M21-1, Part X, Subpart v, 1.D.1.q, although good cause is required for failure to report for a scheduled hearing, a hearing may be rescheduled up until the date and time of the hearing.  Indefinite delays from repeated requests to reschedule should be avoided in the absence of good cause. A claimant may also request to change the type of hearing from a personal appearance at the RO to a videoconference hearing (or vice versa), or to choose an informal conference instead of a formal hearing.  Requesting a change from a hearing at the RO to a videoconference hearing does not require the claimant to execute a waiver.  Both hearings at the RO and videoconference hearings are considered in person hearings because the participants can see and hear one another as if they were physically present in the same room together.  Videoconference hearings are specifically permitted under 38 CFR 3.103(d). If a claimant who requested a hearing no longer wants a hearing but does want an informal conference by telephone, document the withdrawal of the hearing request for the file. References:  For more information on

X.v.1.D.3.f.  Reviewing the Evidence Prior to the Hearing
In advance of the scheduled hearing date, review the issues and evidence.  Determine whether additional evidence is required and consider whether an allowance of a claim or discontinuation of proposed adverse action will resolve the hearing request.
Use the table below to determine whether additional development or action is needed before the hearing is conducted.
If the review disclosed …
Then …
a need for additional evidence from a third party or another issue that should be considered
  • request the additional evidence
  • address the other issue, and
  • refer the issue to the appropriate activity for development.
Note:  Do not postpone a hearing for receipt of evidence.
non-receipt of the evidence requested
provide the claimant with the standard notification that the evidence was not received.
Reference:  For more information on requesting evidence from the claimant and controlling responses, see M21-1, Part III, Subpart i, 2.D.

X.v.1.D.3.g.  Preparing to Conduct the Hearing
Before conducting the hearing, review the principles and procedures in M21-1, Part X, Subpart v, 1.D.
In preparation for a hearing at the RO
  • ensure that the hearing facility is neat and orderly, and
  • test recording capability.
In preparation for a videoconference hearing
  • check that the videoconference link is operational
  • check that the video camera is set up and operational
  • ensure that the headset is connected and operational
  • apply a standard, work appropriate background image or effect as applicable, and
  • review the procedures for recording a videoconference and stopping the recording in the user guide for the videoconference application.

4.  Conducting the Hearing

Introduction
This topic contains information on

Change Date
January 19, 2024

X.v.1.D.4.a.  Explaining the Proceedings
After the attendees have been escorted to the hearing room (or have joined the videoconference as applicable) and introductions have been made, but before recording begins, follow the steps in the table below on explaining the proceedings.
Step
Action
1
Where witnesses or other third-party attendees are present at the hearing, explain that VA Form 5571 or VA Form 21-0589 (as appropriate) has been completed, if the form is already of record and covers all witnesses present.
If an appropriate authorization is not in the claims folder, explain that it must be completed and submitted before the hearing can be held with the witnesses or other third-party attendees present.  In such cases, the hearing may need to be delayed or rescheduled.  It may be possible with a short delay to have the forms completed and provided to the hearing officer (or completed and uploaded to the claims folder in the case of a videoconference hearing).  Alternatively, explain that the claimant may proceed with the hearing without the witnesses or other third parties present.  The claimant may present witness statements after the hearing.
Notes:
  • VA Form 5571 authorizes VA under the Privacy Act of 1974 to review and discuss VA records on a specified topic relating to the Veteran or claimant in the presence of an accompanying person.
  • VA Form 21-0589 permits VA to review and discuss records containing medical treatment for specified conditions in front of named persons. The claimant can include or exclude information on drug abuse, alcoholism or alcohol abuse, human immunodeficiency virus, or sickle cell anemia.
Important:  Listen carefully to the correct pronunciation of names during introductions and or in connection with any discussion of the claimant or beneficiary’s authorization form.
2
Explain the
  • nature and purpose of the hearing, and
  • necessity for and use of recording equipment.
Important:  For a videoconference hearing to be considered in person, as defined in M21-1, Part X, Subpart v, 1.D.1.e, participants (attendees who will participate in the hearing by testifying or offering argument) must be both visible and audible to the hearing official and vice versa.  Hearing attendees who are not participating in the hearing (for example a family member present only for support) do not need to be on camera.
If the claimant/beneficiary only has audio connectivity or otherwise cannot or will not appear on camera, explain that the videoconference hearing cannot proceed.  Explain that the claimant/beneficiary may change the hearing request to a hearing at the RO or withdraw the hearing request and proceed with an informal conference.
In cases where any other participant cannot or will not appear on camera, explain that they cannot participate in the videoconference hearing, but they may submit their testimony in a signed written statement.
3
Tell the claimant that a copy of the transcript is
  • placed in the claims folder, and
  • sent to the claimant, if requested.
4
Tell the claimant and witnesses that they may “go off the record” to
  • collect their thoughts, or
  • clarify any matter.
Explain that this means that the recording will stop until the hearing official restarts the hearing.
5
Explain the necessity of an oath or affirmation.
Note:  As instructed in M21-1, Part X, Subpart v, 1.D.4.f, once on the record, briefly state that the matters were discussed beforehand.

X.v.1.D.4.b.  Presence of an Attorney
When the claimant’s representative is an attorney, emphasize the informal nature of RO hearings, specifically that
  • the Federal Rules of Evidence do not apply
  • leading questions are permissible, and
  • the hearing official may ask questions to clarify testimony or ensure that facts important to the legal standard of entitlement are addressed; the questioning will not constitute cross-examination.
Reference:  For more information on guidelines for evaluating evidence, see M21-1, Part V, Subpart ii, 1.A.1.

X.v.1.D.4.c.  Advising the Claimant of the Right to a Representative
Follow the steps in the table below when the claimant is not represented by an attorney, VSO, agent, or other third party.
Step
Action
1
Explain the availability of
  • a representative, or
  • assistance by a member of the RO.
2
Inform the claimant of the following:
  • there is no obligation to join a Veterans service organization
  • there is no charge for representation, and
  • representation is not mandatory.
3
Ask whether the claimant wants to request representation at the hearing.
  • If yes, set a new time and date for the hearing to allow the claimant the opportunity to select a new representative, and for the representative to have adequate time to review the evidence.
  • If no, proceed with the hearing.
Note:  For hearings at an RO where VSOs have office space in the same building as the RO, and the claimant wants to be represented by one of those VSOs, take the claimant and witness(es) to the chosen representative.  In such cases it may be possible to recommence the hearing after a short delay or reschedule the hearing for later the same day.
Reference:  For more information on requirements for representation, see M21-1, Part I, Subpart i, 2.A.

X.v.1.D.4.d.  Statement of the Issue(s)
State the issue(s) in detail before testimony begins.  This will not be used to limit the scope of the relevant issue(s) or indicate to the claimant that testimony is to be curtailed.
Ask the claimant and representative if this is their understanding of the issue(s) and clarify any misunderstandings.

X.v.1.D.4.e.  Administering the Oath or Affirmation
All hearing testimony is to be given under oath or affirmation.  Administer the oath or affirmation before recording begins; however, for videoconference hearings, the hearing official, claimant, and/or other witnesses must have cameras and microphones enabled.
Note:  The hearing official has the authority to administer oaths and certify documents as evidenced by VA Form 4505, Identification Card-Delegation of Authority.
Follow the steps in the table below to administer the oath or affirmation.
Step
Action
1
Ask the claimant and witness(es) to stand and raise their right hand.
2
Administer the oath using the following wording (or the equivalent):  “Do you swear (or affirm) the testimony you are about to give will be the truth and nothing but the truth?”

X.v.1.D.4.f.  Starting the Hearing
The hearing official starts recording the hearing with the opening statement which includes
  • the fact that a hearing is being held
  • the date and time of commencement of the hearing
  • the name of the hearing official
  • the names of the claimant/beneficiary and any other witnesses who will testify
  • the name of the representative (as applicable)
  • the file number
  • the fact that the claimant and any witnesses have been duly sworn
  • a brief statement of issue(s), and
  • a brief summary of matters discussed before going on the record such as the informal and non-adversarial nature of the proceedings, that the Federal Rules of Evidence do not apply, that the hearing official may ask questions but there will be no cross examination, or that an unrepresented claimant/beneficiary was advised of the right of representation.
Note:  For videoconference hearings, refer to the videoconference application user guide for instructions on how to start and stop the hearing recording.

X.v.1.D.4.g.  Gathering Testimony and Asking Questions
The table below describes how to elicit testimony and ask questions.
Step
Who Is Responsible
Action
1
hearing official
Asks the representative, if present, and/or claimant if they desire to make an opening statement.
Note:  A representative is allowed to introduce the claimant’s testimony and ask questions about it.
2
claimant
Provides testimony.
Important:  Before questioning the claimant,
  • ask if they object to any of the witnesses being present, and
  • if so, excuse the witness(es).  The hearing official will pause the hearing recording to allow witnesses to rejoin at the completion of the claimant’s testimony.
3
hearing official
Asks questions that
  • are consistent with the non-adversarial nature of the hearing, and
  • elicit all relevant testimony.
4
witness(es)
Provides testimony.
Note:  Repeat stages three and four for any additional witnesses.
Important:  If at any time the claimant, or, as applicable, a witness or the representative wish to go off the record, the hearing official will acknowledge and accept the request and stop the hearing recording.  When restarting, the hearing official should indicate that the hearing has resumed.

X.v.1.D.4.h.  Alternate Order of Testimony and Questioning
Some representatives may ask that the witness testify immediately after the claimant and that all witnesses complete their testimony before any questioning by the hearing official.

X.v.1.D.4.i.  Conduct During the Testimony
Interrupting the Claimant
The appropriateness of interrupting the testimony of the claimant or a witness(es) or suggesting areas that should be further developed, depends on the individual hearing.
Limiting the Witness(es)
Exercise care and tact in limiting the witness(es) and guard against any suggestion that the testimony is not important.
Cross-examination
While cross-examination should be avoided, it is important that the claimant be questioned sufficiently to elicit all relevant testimony.
Reference:  For information on inappropriate conduct by hearing attendees, see M21-1, Part X, Subpart v, 1.D.2.e.

X.v.1.D.4.j.  Ending the Hearing

Follow the steps in the table below to end the hearing.
Step
Action
1
  • Give the claimant and representative an opportunity to make a final statement when
    • testimony is complete, and/or
    • discussion of any area raised by questioning has been concluded
  • ask if anyone wishes to add anything, and
  • identify any evidence referenced in the hearing testimony that
    • the claimant has agreed to furnish, and/or
    • VA will attempt to acquire.
2
Explain VA’s procedures regarding decision notification, specifically that the claimant will not be provided with oral or written notification of the formal written decision until it has been signed and, if necessary, approved.
3
  • Note the time the hearing concludes for the record
  • have the claimant complete any medical release forms needed to obtain private treatment records
  • stop the recording of the hearing, and
  • escort the claimant and/or witness(es) from the hearing area.
For videoconference hearings
  • advise the claimant about the release forms that the claimant must complete to obtain private treatment records, how to submit the release forms by mail, in person at an RO, or electronically, and the need to submit the completed forms expeditiously
  • note the time the hearing concludes for the record, and
  • stop the hearing recording.
Exception:  This procedure is not applicable for termination of the hearing due to inappropriate conduct by hearing attendees per M21-1, Part X, Subpart v, 1.D.2.e.

5.  Additional Issues Raised During the Hearing

Introduction
This topic contains information on

Change Date
December 30, 2020

X.v.1.D.5.a.  Handling Additional Issues Raised During the Hearing
Use the table below to consider additional issues raised by the claimant or representative during the hearing.
Note:  This guidance applies to any issues raised by the claimant while appearing for the hearing, including before the hearing is initiated, during the hearing itself, or after the hearing concludes.
If the claimant is seeking to file a(n) …
Then …
initial claim
  • document the intent to file (ITF) in writing on a VA Form 27-0820 in accordance with 38 CFR 3.217(b)
  • manually update the corporate record to reflect receipt of the communication of an ITF, and
  • associate the VA Form 27-0820 with the claims folder.
Note:  The corporate record update will automatically trigger the ITF acknowledgement process described in M21-1, Part II, Subpart iii, 2.A.1.m.
request for higher-level review
instruct the claimant to complete and submit VA Form 20-0996, Decision Review Request:  Higher-Level Review.
supplemental claim
instruct the claimant to complete and submit
References:  For more information on
  • receiving an oral statement of an ITF, see 38 CFR 3.155(b)(1)(iii), and
  • updating the corporate record to reflect receipt of a communication of an ITF through
    • VBMS, see the VBMS Core User Guide (under the heading Creating an Intent to File), and
    • Share, see the Share User Guide.

X.v.1.D.5.b.  Action to Take When the Claimant Requests to File a Disagreement or Substantive Appeal During the Hearing
Use the table below if the claimant or representative indicates during the hearing a desire to file a new disagreement with a decision or substantive appeal.
If the claimant is seeking to file a …
Then …
disagreement with a decision made on or after February 19, 2019
inform the claimant of the decision review options, which require completion of one of the following:
legacy substantive appeal
provide the claimant
Notes:
  • Encourage the claimant to complete the appropriate form prior to leaving the hearing.
  • Advise the claimant and representative (if applicable) on the record if there is no decision with which to disagree, or if an SOC has not been issued on any issue in NOD status.
  • If the claimant’s disagreement or legacy substantive appeal is clearly untimely, notify the claimant and representative (if applicable).  However, the claimant may file a disagreement with a written determination that a disagreement or legacy substantive appeal is untimely.

6.  Transcribing the Hearing

Introduction
This topic contains information on transcribing the hearing, including

Change Date
January 19, 2024

X.v.1.D.6.a.  Preparing the Hearing Transcript
Follow local procedures for sending the hearing recording for transcription by the National Transcription Center (NTC).
Important:  For videoconference hearings, the hearings are recorded, but do not use the transcription functionality of the videoconference application.  The hearing recording must be downloaded and forwarded for transcription by VBA’s official transcription service in accordance with local procedures.
Note:  If processing the claim in VBMS, create a tracked item Awaiting Upload of Hearing Transcript with the suspense reason Request for Federal Records and a suspense date in accordance with local procedures while transcription of the hearing is pending.

X.v.1.D.6.b.  Adding the Hearing Transcript to the Claims Folder
Follow the procedures in the table below to add the hearing transcript to the claims folder.
If …
Then …
the hearing transcript is received electronically
upload the document to the electronic claims folder (eFolder), following the procedures in the VBMS Job Aid – Adding Documents in VBMS eFolders.
a hard copy of the hearing transcript is received
send the transcript to the scanning vendor for upload into the folder.

X.v.1.D.6.c.  Soliciting the Claimant’s Permission Not to Transcribe the Hearing
In some legacy appeal situations, the hearing official determines with reasonable certainty that cases will not be referred to BVA.
Examples:
  • Cases involving a complete grant of benefits.
  • Instances in which the claimant is considered likely to withdraw the legacy appeal.
In this situation, solicit the claimant’s permission not to prepare a typed transcript of the hearing.

X.v.1.D.6.d.  Handling the Claimant’s Waiver of a Hearing Transcript

 If the claimant gives permission not to prepare a typed transcript of the hearing,
  • ask the claimant to submit a signed, written statement with the following wording at the hearing or – in the case of a videoconference hearing – as shortly thereafter as possible:  I hereby waive any requirement that the record of my hearing will be transcribed.  A hearing transcript will be prepared if my records are eventually referred to BVA for a decision on this issue, and
  • secure any tape recording or other electronic record in the claims folder for a period of at least two years after the hearing, at which time it will be recycled or destroyed.

X.v.1.D.6.e.  Preparing the Transcript for BVA Transfer
If the legacy appeal is transferred to BVA for consideration of the issue(s) that was the subject of the hearing, ensure a transcription of the hearing is in the claims folder.
Reference:  For information on adding the transcript to the eFolder, see M21-1, Part X, Subpart v, 1.D.6.b.

7.  Reviewing Evidence Presented at the Hearing

Introduction
This topic contains information on reviewing the evidence presented at the hearing, including

Change Date
February 19, 2019

X.v.1.D.7.a.  Analyzing the Testimony for Credibility and Value
Analyze the credibility and value of testimony presented by the claimant and others who testified on the claimant’s behalf.
Note:  Take care to distinguish between testimony and argument.
References:  For more information on

X.v.1.D.7.b.  Analyzing the Competency of Witness Testimony
Analyze the competency of the claimant and others who testified on the claimant’s behalf to establish specific factual matters.
Reference:  For more information on competent evidence, see M21-1, Part V, Subpart ii, 1.A.2.c.

X.v.1.D.7.c.  Requesting Corroborative Evidence
If the claimant identified sources of information or evidence while testifying that corroborates the claim,
  • attempt to obtain the additional evidence, and
  • do not issue a decision on the claim until development has been completed.
Example:  The claimant states that they were treated by Dr. John Smith, and Dr. Smith’s report is not in the claims folder.  Reasonable efforts must be made to obtain that report before issuing a a decision.

X.v.1.D.7.d.  Requesting Examinations Indicated by the Hearing Evidence
If, during a hearing or review of the claims folder after the hearing, the hearing official concluded that an examination should have been or should now be ordered based on new evidence, request a VA examination before issuing a decision.