One of the critical concepts of the AMA is the idea of the continuously pursued claim. If you continuously pursue a VA Claim, you can keep your original claim effective date.
So what does it mean to continuously pursue a VA claim, and how do you do it?
Essentially, the idea of the continuously pursued claim is a new part of the AMA, and is how one preserves the original effective date of a claim or appeal filed under the Modernized Appeal (AMA) process.
Let’s rewind a little.
There are generally two ways to file a claim under the AMA system.
#1: File a VA Notice of Intent to File a Claim
First, one can file a VA Notice of Intent to File. All this entails is telling the VA that you intend to file a claim, and you have a year to complete the application for benefits. If you do, then the date of your VA Notice of Intent to File is the effective date of your claim if it is granted.
The veteran can submit a VA notice of intent to file by beginning his or her application for benefits electronically in eBenefits, or by using VA Form 21-0996 (click here for a copy of the form. You can file a notice of intent for an original claim, or a claim for a new benefit (like filing to service connect a new condition after you’ve already filed an original claim), a claim for a pension, or a claim for DIC or a survivor’s pension.
If you want specific instructions as to how to file a VA Notice of Intent to File a Claim, click here to take a look at the VA’s own step-by-step guide. The regulation that governs the VA Notice of Intent to File, at least after March 15, 2015, is 38 C.F.R. §3.155 – click here to see the VA’s lengthy regulation governing notices of intent to file.
You cannot file a VA Notice of Intent to File if you are filing a Supplemental Claim in response to a ratings decision, BVA Decision or CAVC decision that issued after February 2019. And you cannot file a VA Notice of Intent to File a claim for Accrued Benefits or Substitution.
#2: File a Claim
Second, one can simply file a claim for benefits – either an original claim if it is the first time, or a supplemental claim if you have already filed a claim for benefits.
What does this have to do with the concept of continuously pursuing a claim under the AMA?
So long as you continue to pursue your claim by timely filing the correct documents and evidence, your effective date will remain the date of your Notice of Intent, or the date of your claim, depending on which you filed first.
How do you Continuously Pursue a VA Claim?
There are several ways to continuously pursue your VA Claim.
Let’s say you file a claim and the VA denies it – or a part of it. You then have three options under the AMA (Modernized Appeal) process.
Option #1: You can seek Higher Level Review. Everything I’m hearing from veterans and advocates is that the HLR process is a colossal waste of time. If you had a positive experience with the Higher Level Review Process, I’d love to hear about it.
Option #2: You can file a Supplemental Claim. So long as you submit “new and relevant” evidence with the supplemental claim, or within 60 days of the supplemental claim, you will continue to have the original effective date if the VA ultimately grants your supplemental claim.
Option #3: You can appeal the ratings decision to the BVA. If the BVA denies your appeal, you can then either appeal to the Court to correct legal error or, if you have new and relevant evidence, you can file a supplemental claim within one year. Some advocates argue that you can do both at the same time, but that theory has not been tested, that I know of.
Notice that so long as you continuously pursue your claim – no matter how many timely supplemental claims you file – you will preserve the original effective date so long as you have new and relevant evidence.
However, the negative side to that “gamble” is that if the VA decides that one of your supplemental claims did not contain new and relevant evidence, you lose that original effective date (unless you win timely appeal to the BVA or, if appropriate, to the Veterans Court).
I’m telling you folks, this process is incredibly confusing. It gets even more confusing when you figure out that the VA is not real clear about what evidence is part of the record of a particular claim or appeal and what evidence has been ‘rejected.’
And, most important, Veterans who have spent the better part of 2 decades battling the VA for a particular benefit will have to rethink all of their strategies. There are not only more choices and opportunities, but there are also more risks.
The VA will tell you that the AMA (Modernized Appeal) process is not a “once-and-done” process, but that you can move your claims and appeals from one lane to another, with unlimited moves and “no option goes away.” Of course, this is about the equivalent of saying that the Los Angeles Dodgers can win all 162 games in the season, and they never have to lose a game all year.
Options do go away, and they will largely go away for a couple common reasons: bad decisions by the VA and bad decisions by Veterans.
If Congress intended to “gamify” the VA compensation claims process, then they have succeeded.
What are the Take-aways?
There are 2 big Takeaways.
The first take-away is this: so long as you continuously pursue a VA claim with timely appeals of a denial of that claim, you keep your original effective date, which is either the date of the claim or the date you filed the VA notice of intent to file a claim, depending on the facts mentioned above.
The second take-away is this: there are 3 critical junctures of an appeal where a veteran will have to evaluate the risk and decide whether to file a supplemental claim (and attempt to add new evidence to win the claim) or to file an appeal (and challenge the VA’s actual decision to deny). Here are the 3 critical junctures:
Critical Juncture #3: Within 1 year of the VA Ratings Decision, a veteran must decide whether or not to file a supplemental claim or appeal to the BVA
Critical Juncture #2: A veteran may appeal a BVA denial to the Veterans Court within 120 days or file a supplemental claim within one year of the date of the decision. (Some advocates argue that you can do both, but again, this is an untested theory).
Critical Juncture #3: A veteran may file a supplemental claim within 1 year of a CAVC Memorandum Decision, or appeal to the Federal Circuit within 60 days of the CAVC Judgment