They are both extinct.
It used to be that Veterans had a choice.
When they gathered new evidence that established an issue in a claim that the VA had previously denied, they had a choice to file a Claim to Reopen, or a Notice of Disagreement.
This choice was largely driven by timing. If the veteran was within one year of the ratings decision denying the claim, the veteran filed a VA Claim to reopen.
If the veteran was more than one year removed from a VA ratings decision denying the claim, the better option was to file a Claim to Reopen.
When filing that VA Claim to Reopen, the veteran used to have to only provide new and material evidence to establish an element of the claim that had not previously been proven.
Effective February 19, 2019, however, this choice disappeared.
Why?
Because the VA Claim to Reopen no longer exists under the VA’s AMA Modernized Appeal process.
In fact, if you filed a claim to reopen before February 18, 2019, and the VA had not decided it on or before that date, you no longer have a claim to reopen.
Click here to find out what you do have.
Now, if you had a clam to reopen that the VA denied on/before February 18, 2019, then you can stay in the VA Legacy Appeals system and appeal that decision with the OLD VA Notice of Disagreement form.
Or, theoretically, you can file a Notice of Disagreement on the new “Modernized” form, or file a Supplemental claim and by doing so opt in to the AMA Modernized process.
I hesitate to say this definitively, because even as of April 2019, the VA is acting very inconsistently.
I have talked to some veterans and attorneys who are filing NODs under the Legacy appeals system, only to be told that the Secretary is no longer accepting Legacy NODs.
This may or may not be lawful. Other veterans and attorneys are filing Supplemental Claims from a denied Claim to Reopen, and the VA is rejecting them as premature optins to the AMA Modernized Appeal system.
See what’s happening here?
The VA has taken one complex claims and appeals system (the Legacy system), converted it into a more complex claims and appeals system (the Modernized system), and then implementing it inconsistently so that Veterans will find it easier to throw up their hands and walk away.
The VA will tell you that’s not true – they will say they are doing their best to implement a complex new appeals process on a grand scale.
But even if that is true, they should have waited to implement the AMA Modernized Appeal system until they had the infrastructure in place to support it, and the rules clearly defined so veterans know what to do.
One thing we know for sure.
As it stands right now, effective February 19, 2019, no veteran can file a claim to reopen a previously denied claim for benefits.
One thing I’m exploring is the value in simultaneously filing both a Supplemental Claim and a Legacy Notice of Disagreement, and see what the VA does. I’m not sure this is the best option, or even lawful or appropriate. But it may be the only “safe” option for a veteran with a claim to reopen that was denied on/before February 18, 2019.
I wish I could tell you the correct steps to follow, but the VA does not know yet, so I can’t tell you.
I will update this post, however, when I find more information.
