BVA Hearings are supposed to be non-adversarial. And for the most part, they are.
Most BVA Judges are pretty solid folks that work very hard to do the right thing – at least as much as this archaic benefits system allows them to.
Recently, however, I have heard stories and seen BVA Hearing Transcripts that suggest that some of the Judges may be cracking under the pressure.
Here’s One BVA Judge that Should Probably Not Be a Judge.
Background facts on the case – Vietnam Veteran with COPD and Sleep Apnea is arguing that one of the factors that led to these conditions was his exposure to certain chemicals in service (not Agent Orange or herbicides). He had some pretty convincing medical literature to show the BVA Judge, and here’s what the Judge said:
“I don’t care [what the medical literature says]” and “I don’t want to hear about theories. I don’t want to hear about what other people have said.”
Elsewhere in the hearing, the Veteran expressed concern that the VA failed the Duty to Assist. Here’s what the BVA Judge had to say about that:
“I don’t want to hear about [allegations of the failure of the Duty to Assist]”
At the end of the hearing, the Judge said this to the Veteran:
Well, thank you for that poorly organized presentation.”
What a rude thing to say!
This particular Veteran spent YEARS preparing for his hearing at the Board.
He prepared binders, tabbed with evidence and statements from his C-File and from his private medical examiners. He practiced and rehearsed his presentation.
And he got over the nerves all of us get before going before a Judge.
I’ll tell you something else, too. This particular Veteran’s case was as well prepared as most attorneys, and one of the Top 5 most organized presentations I’ve seen in 7 years of looking at thousands of C-Files.
My question to that particular Judge – who I am not naming at this point in time – is this: “Why the heck are you in this line of work?”
But, he probably wouldn’t answer.
Now that We’ve Got That Out of Our System….
Seriously, most BVA Judges are pretty nice people.
We all have our little quirks, to be sure, and you may think your Judge is rude when really he or she is just being direct or getting to the point. I have met more than one Veteran with thin skin, and we are ALL – even BVA Judges – entitled to a bad day every now and again.
Attorney or not, Judge or not, everyone should get a little slack.
But every once in a while, you get a “Gem” like the BVA Judge described above. One that doesn’t need to be in this line of work. One that is incredibly dissatisfied with his work/career. And they take it out on the rest of us.
When you run into “that guy”…here’s a few tips to help.
How to REALLY Respond to the BVA Judge Turned Bully.
Follow these steps…think of it like a series of things to do to de-escalate the tension and, if that doesn’t work, preserve the adversarial tone of the BVA Hearing Officer for the record.
Don’t do all 5 at once. Think of them as “Def-Con” levels. Start with #1. If it doesn’t get better, go to #2. Then #3. You either de-escalate the conflict, or preserve the adversarial nature for the record.
1) Be a Boy Scout and “Be Prepared”.
Do these 2 things at the beginning of your hearing:
#1 – Bring a witness with you – most bullies look for easy victims. Easy victims are usually people that are alone.
#2 – Get the Hearing Officer’s Name. His (or her) full name. Confirm the spelling and don’t feel bad about asking to confirm it. You are entitled to know the name and correct spelling of the man or woman that is about to make a decision based on your most intimate personal, medical and professional experiences as a soldier/sailor/airman.
And I’ll tell you this…don’t be afraid to record the hearing on your mobile device.
The Board is recording the hearing to create a transcript, so there is no law you’re breaking here. At least none that I’m aware of … if you know of one, please tell me so I’m not giving other Vets “bad” tips.
#2: Never let the Bully see you sweat.
Most bullies will back down when they can’t get a rise out of you.
Don’t let some schlep get you off your game.
If you prepared for your hearing, you have a prepared “script”: list of witnesses who will testify, list of evidence to get in the record, list of arguments to make.
Remember that Drill Sergeant that would get in your face and call you every name in the book while you were trying to qualify with your rifle?
Stay focused on the task at hand, and push forward. Do it with a smile on your face – or while at the very least remain calm, collected and civil – and I guarantee you’ll get the bully’s “goat”.
#3: Document the “tone” for the record
Okay, so the witness didn’t intimidate Mr. Bully. Ignoring him didn’t work. It’s time to up the stakes a little.
Remember how I said that the Board was recording the hearing? They are doing it to get a written transcript. But written transcripts don’t reflect tones of voice.
So after the 3rd time that the Bully comes at me, I usually say something like this – in the most even tone:
“I’m going to take a moment and document in the record that the tone of the Hearing Official is markedly adversarial. He is raising his voice, scowling at me and my witnesses, and being rude in cutting me off before I’m done talking [Add any other BEHAVIORS you have seen…just hit the high notes here…you don’t need a blow by blow account]. My tone has remained very even throughout this hearing [be sure that it has], and that is reflected in the audio recording of this hearing which I hereby ask to be preserved in audio format and provided to me with the written transcript so that I may demonstrate the adversarial nature of this hearing to the Court of Appeals for Veterans Claims and, if necessary to the State Bar where the Board Hearing Officer maintains his licensure as an attorney [most if not all BVA Hearing Officers are licensed attorneys],. Having said that, I will continue with my presentation.”
Then move RIGHT into your next presentation. Don’t pause – go. You’re not looking for a debate – you are looking to document the problem and move on.
(Notice also how I talk about the bully in the 3rd person? This is an old tactic for defusing the temper of a reasonable person – most reasonable people, when talked about this way in the third person will back off. But be forewarned – narcissists and bullies find this as a “snuff” and their tempers will likely blow).
Most smart people will recognize that they are in a bit of a pinch at this point – any decision they write is going to be subject to extra scrutiny. Nobody – not even a BVA Hearing Officer – wants to be the one that the Court slams for being Adversarial to Veterans.
#4: Protest the adversarial nature of the hearing.
If it gets worth after you’ve taken the first 3 steps, well, you’re in for a roller coaster ride. I hope you have a witness in the room with you, because you’re going to need one at this point.
Why do I say that?
If you have given a BVA Hearing Officer three opportunities to back down – one by having a witness present, one by ignoring his commentary, and one by documenting his commentary in the record – and he still comes after you, then it’s a pretty good sign that you have a Hostile Hearing Officer that doesn’t care about your case.
You have a choice at this point:
Option 1: Continue with Steps 1 through 3 – documenting the adversarial comments calmly and evenly as you did in Step #3, and build the record for an appeal and an ethics complaint to the Department of Justice Office of Professional Responsibility.
Option 2: Stop your presentation. Read a statement like this into the record – don’t direct the statement to the Hearing Officer. He is not your audience. The Court of Appeals for Veterans Claims is your audience. Force yourself to talk in a lower and calmer tone than you normally do, state:
“Board hearings are supposed to be non-adversarial in nature. I am not the enemy. I am a United States Veteran. I have a right to make this claim. I have a right to file this appeal. I have a right to present my facts and argument. And I have a right to be treated with respect. The demeanor of the hearing officer has been very adversarial, has limited my ability to articulate my legal and factual support for my appeal, and I am concerned that the Hearing Official has pre-decided my claim or has a personal animosity towards me for some reason. More than all of that, though, the Board has a Duty to Assist me in identifying the evidence to support my claim; instead, the Board seems to be deliberately thwarting my claim by turning this hearing into an adversarial tone.”
Continue your presentation.
Do the best you can.
Continue to document the problems in the record wherever you can.
Have your witness take notes, and ask them to prepare a detailed statement – using a Sworn Declaration form – immediately after the hearing so that the memories and recollection of what was said and how it was said is not lost to the passage of time.
You don’t need to give anyone that statement now – you can submit it before the Board issues its decision, if you really think that you’re going to need to go to the Court, or you can hold on to it until afterwards, too.
#5: Some extra tips for dealing with the BVA Bully.
– Bullies want the conflict to escalate – don’t ever give them the pleasure. Don’t ever let them see that they “got your goat”…because then they own you.
– ALWAYS take the moral high ground. Document the problem, stay calm, and stick to your Game Plan. Don’t take the bullies bait.
– You can’t win a pissing contest with a BVA Hearing Officer. Believe me, I have tried. Stick to your Game Plan, document the problems, and save the fight for the Court. Choose your battlefield.
– At a Board Hearing before a bully, pride is a weakness. A huge liability. These bullies are counting on you to lose your temper, say something foul, or possibly give them a “Middle Finger Salute”. Save it for a blog, later. 🙂
Don’t give a bully the pleasure of seeing they got to you.