So the BVA held a hearing in your appeal, and when the decision was issued, you notice that the decision didn’t address facts you brought up at the hearing.
Alternatively, you may notice that the decision attributed statements to you that you did not make at the hearing.
What do you do?
Well, the first thing to do is to request a copy of the BVA Hearing Transcript.
It’s the MOST Important document from your BVA Hearing.
I recommend that you don’t wait – request the transcript IMMEDIATELY after the BVA hearing.
The BVA will not charge you for it, and they are required to give you a copy if you ask for it.
Why is it important?
In addition to understanding how the BVA Judge might have misinterpreted what you said, this transcript is important because it may form the foundation of a remand order by the Court of Appeals for Veterans Claims.
For example, in more than one case, I have seen that the Veteran referenced missing – and relevant – records in the BVA Hearing.
The BVA’s failure to procure these records could be a failure of the Duty to Assist by the BVA.
But the only way to definitively prove that the BVA knew about the records you mentioned in the hearing is to show the CAVC where in the Hearing Transcript you referenced them.
Another common error is that the BVA fails, in its decision, to address an issue that a Veteran clearly raised before the BVA.
The BVA is required to address all arguments which could reasonably lead to a favorable decision for the Veteran. And the BVA may not presume a Veteran agrees with any point in the Statement of Case, whether expressly opposed or not.
To show that the BVA erred by ignoring facts, or arguments that you asserted, you must be able to show the CAVC where in the BVA Hearing you raised those arguments or facts.
How to Request the BVA Hearing Transcript.
Immediately after the hearing, fax (or better yet, mail via certified mail, return receipt requested) a request for the BVA Hearing Transcript to the following address/fax number:
Board of Veterans’ Appeals
810 Vermont Avenue, North West
Washington, DC 20420
FAX: (202) 343 – 1889
In your request, be sure to include:
* Your name,
* Your claim number,
* Date and time of the hearing,
* Location of the hearing, and,
* If you know it, the BVA Hearing Official’s name.
I also ask that the request for the hearing transcript be included in the Veteran’s C-File, so that there is proof that the request was made in the event the BVA fails to comply with the request.
When you get the Transcript.
When you receive the hearing transcript, the first thing to do is send a copy to the VARO that holds your C-File (Certified Mail, Return Receipt Requested). Include a cover letter indicating that you are asking that the BVA Hearing Transcript be included in your C-File.
Frequently, this happens automatically. However, I have noticed cases where a BVA Hearing was held, but the transcript is “missing”. Curiously, this seems to happen most often when the Veteran claims that a vital fact was introduced on the record at the BVA Hearing.
Once you have sent a copy to the VA Regional Office, read the hearing transcript. You might find 2 kinds of errors: transcription errors and substantive errors.
Regarding transcription errors, you can submit what is referred to in the law as an “Errata Sheet”.
Reference the page and line number of the error, indicate how the transcription appears, and then how it should appear.
Typically, this is used for correcting typographical or transcription errors – misspelling of names, incorrect identification of medical conditions, acronyms, etc.
An Errata Sheet typically is NOT used to supplement or correct errors in the substance of what was said at the hearing.
If you feel that the transcription wrongly reflects what you said, or that there is a substance error in the transcript, then request a copy of the recording tape from the BVA, and listen to it carefully.
If you are correct, and the recording was transcribed improperly, you may want to document the error, send it to the above address by Certified Mail, and start trying to find an accredited Veterans Benefits attorney to help you figure out what your next steps should be.