Congress Should Ride the PACT Act Wave and Ease Veterans’ Access to Disability Hearings

On August 10, 2022, President Biden signed the “PACT” Act into law – a bipartisan, pro-veteran victory that increased medical care access to veterans, and made it easier to prove certain medical conditions were presumably caused by a veteran’s eligible military service.

 

This bipartisan measure passed the Senate with an 86-11 vote, and a 256-174 vote in the House. Congress should ride this wave of popular support and mandate the Department of Veterans Affairs amend one of their regulations to allow a veteran to have a telephonic disability hearing before a Veterans Law Judge, not require the veteran to attend either in-person at one of the VA’s regional offices, or through a virtual, audio, and visual format.

 

When a veteran’s disability claim is denied or assigned a disability rating with which the veteran is not satisfied, that veteran can appeal the VA’s decision to the Board of Veterans Appeals (BVA), where their case will be heard by a Veterans Law Judge (VLJ). 38 C.F.R. 20.702 demands that a BVA hearing may only be held “in-person” or by “audio and electronic hearing.” (emphasis added).

 

Before COVID, VA primarily made veterans travel to their regional office, or a closer satellite VA campus, to hold the veteran’s hearing. Since March 2020, and in this practitioner’s experience, VA has done an excellent job providing this audio and electronic format, so the veteran does not have to risk infection by traveling to their regional office. Veterans can now have hearings from the comfort of their homes, on a smartphone or computer, and not laboriously or expensively travel to their state’s regional office.

 

However, what if the veteran cannot afford a smartphone or a computer? What if they live in an impoverished area without reliable internet access or do not have the technical proficiency to make a virtual hearing work on the “user” end? Attempting to access, never mind completing, a virtual hearing frequently ends in frustration, delay, and postponement of a veteran’s hearing. One New England law firm specializing in veterans’ disability reported to this author that almost 10 percent of their client’s BVA hearings between May and August 2022 were canceled or postponed due to technical issues, almost always on the veteran’s side of the computer.

 

My experience with such delays led me to ask this question – why can a veteran not attend a hearing telephonically? Suppose a veteran and their representative have a purely oral presentation to the VLJ. Wouldn’t attending the hearing be much easier and less stressful for the veteran if he could simply dial into a hearing? Courts at federal and state levels all over the country have purely telephonic hearings all the time; why not VA?

 

Despite outreach to VA and, off the record, pre-hearing discussions with VLJ’s, I have never been given a satisfying answer to why the BVA cannot allow solely telephonic hearings. One argument I heard from a VLJ was that the judge needs to see the veteran to ensure he is whom he says he is. This reasoning would only make sense if every VLJ knew every veteran who would appear before them for a hearing. Another reason is that the VLJ needs to see that any third party does not influence the veteran in the room. The VLJ swears the veteran under oath at the start of every hearing and presumes he subsequently tells the truth. Why can’t the VLJ ask the veteran under oath if he is being influenced by anyone else, and when the veteran says no, then accept that answer?

 

Besides helping the veteran advocate for his disability compensation opportunities expanded by the PACT Act, allowing telephonic hearings should ease the burden on the BVA’s dockets. A veteran could spend a year or more between appealing a VA regional office decision and waiting to get in front of a VLJ. I can confidently, albeit anecdotally, say that the rate of canceled or postponed hearings would dramatically decrease if VA amended 38 C.F.R. 20.702 to allow telephonic hearings.

 

Americans, through their lawmakers, obviously have an appetite to increase veterans’ access to medical and disability opportunities. The next logical step is to literally allow them that access by making attending their appeal hearings as easy as possible.

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Tyler C. Hadyniak

Tyler C. Hadyniak, Esq. grew up and lives in Freedom, Maine. He is an associate attorney at Mailloux and Marden, P.A., and “Of Counsel” at Jackson and MacNichol. His practice focuses on family law, civil litigation, and VA disability. He spent the first nine months of his legal career traveling around the country representing veterans before Board of Veterans Appeals hearings, memorializing his experiences in his published memoir, “There and Back Again: America Through the Eyes of a Veterans Disability Attorney,” available on Amazon. In his free time he is a weekly columnist for The Republican Journal and stays politically involved with his hometown.

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