Atilano: Board Hearings without the Veteran

Atilano v. Wilkie, Case Number 18-1051, decided July 3, 2019 affirmed a Board decision that stated a Board hearing can be cancelled if the veteran is not in attendance even if the veteran’s representative and an expert witness are there.

The veteran’s attorney requested a hearing before the Board's central office in Washington, D.C., to present testimony from Dr. Elaine Tripi, a licensed psychologist

and certified rehabilitation counselor. A hearing date was set but a motion to change the time was granted. 

On the day of the hearing, counsel the certified rehabilitation counselor appeared at the Board's offices without the veteran.  The Board member declined to hold the hearing without the veteran stating that the claimant’s participation was legally required.  The record was held open for 60 additional days so the expert could submit a report in writing and counsel could do the same with respect to argument.  In her duly submitted written report, the expert opined the veteran was, by reason of his PTSD and in light of his educational and occupational history, unable to hold substantially gainful employment between 1995 and 2010.  She also stated that, if permitted to testify, she would have defended any challenged conclusions and answered any relevant questions asked by the Board member.

Counsel wrote that the veteran had been unable to attend the scheduled hearing because he was severely disabled and that he believed VA was required to hold the hearing despite the veteran's absence. Counsel further argued that the veteran was prejudiced by the Board member's actions because a written report was inferior to oral testimony.

The Court noted the issue on appeal is "whether an appellant must be present at his or her hearing in order for his or her legal representative to elicit sworn testimony from witnesses before the Board."  Id. at *6.

The Court reasoned:

The Board shall decide any appeal only after affording the appellant an opportunity for a hearing." 38 U.S.C. § 7107(b). A "hearing" is defined as the "opportunity to be heard, to present one's side of a case, or to be generally known or appreciated." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY 559 (1990) [WEBSTER'S NINTH];

see, e.g., WEBSTER'S NEW WORLD DICTIONARY, THIRD COLLEGE EDITION 622 (1988) ("an opportunity to speak, sing, etc.; chance to be heard"). A leading legal dictionary likewise explains that, in the administrative context, the term "consists of any confrontation, oral or otherwise, between an affected individual and an agency decision-maker sufficient to allow [the] individual to present his case in a meaningful manner." BLACK'S LAW DICTIONARY 721 (6th ed. 1990). The rest of the sentence in subsection (b) clarifies that the opportunity to speak to, be heard by, become known to, or present a case before the Board member is not general in nature but is "afford[ed]"

to "the appellant."

Id. at *7.

The Court also referenced 38 U.S.C. § 7107(d)(1)(A)(ii), which states: "The Board shall also determine whether to provide a hearing through the use of the facilities and equipment described in subsection (e)(1) or by the appellant personally appearing before a Board member." (emphasis added). There can't be any dispute about what the italicized language means: "to come formally before an authoritative body" and to do so "in person" and "for oneself."  Id. at *7.

The Court concluded:

In short, the overall statutory structure ofsection 7107 confirms that an appellant  exercising the right to a Board hearing must participate in that hearing. The appellant has the choice whether to do so by appearing personally in the presence of the Board member or by participating remotely via video conference or other electronic means, but there is no provision allowing an appellant to invoke the right to a hearing but decline to participate.

Id. at *8.

The decision was by Judge Toth and joined in by Judges Pietsch and Meredith.  While I understand and am sympathetic to the veteran’s position, I also understand the Court’s reasoning and believe this case has limited impact on the presentation of a veteran’s case. 

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