In case you were thinking that “Appeals Modernization” was a good thing for veterans, this post might change your mind. Remember your claim to reopen service connection for a previously denied condition?

It’s been closed. I bet the VA never even told you.

Here’s how it went down.

When Congress passed the Appeals Modernization Act, its intent was to streamline appeals. And, when Congress passes any new statute, it falls on the VA to draft regulations to implement those statutes. That’s how our system works: Congress writes the laws and passes statutes, and the executive branch implements it, through regulations.

Well, there is not one word in all of Congress’s statutes that talk about claims to reopen. You remember the claim to reopen, right?

That was where you could provide new and material evidence relevant to a previously final and unappealed claim for benefits, and the VA would have to reopen and readjudicate your claim.

Well, even though Congress didn’t say a word about claims to reopen, the VA took it on themselves to get rid of them.

They didn’t even do that through a regulation, but through a comment to another proposed regulation.

Here’s what they buried, deep in the comments of their proposed regulations implementing the Appeals Modernization Act:

“[a] request to reopen a finally decided claim that has not been adjudicated as of the effective date will be processed as a supplemental claim subject to the modernized review system.”

What effective date are they talking about? February 19, 2019. The effective date of the regulations implementing appeals modernization.

Translated into English: If you filed a claim to reopen before February 19, 2019, and the VA did not decide the claim before that date, your claim to reopen magically became a supplemental claim at midnight.

Why does that matter?

After all, they are only going to process pending claims to reopen as supplemental claims, which is virtually the same legal standard.

Who is really hurt when the VA changes what they call a claim?

The harm – the bait and switch – is found in another regulation: 38 C.F.R. §3.156(b).

Under this regulation, if a veteran submitted new and material evidence as part of a claim to reopen, or as part of any other submission to the VA, and the evidence pertained to an open and pending and unadjudicated claim, the Veteran would be entitled to the effective date of the open and pending claim.

Not any more.

The VA has said, in its proposed regulations (that went into effect on February 19, 2019), that 38 C.F.R. §3.156(b) does not apply to supplemental claims filed under the new system. And, under the new versions of 38 C.F.R. §3.103(c)(2) and 38 C.F.R. §20.801(b)(3), if you submitted the new and material evidence, before February 19, 2019, without a form indicating it was part of a claim to reopen, then the VA gets to pretend they never saw the evidence, and need not adjudicate your claim.

So who wins and loses in all of this? Well, as usual, the VA wins, and you lose.

If you had a open and pending claim that the VA never decided – and in my experience at least half of all veterans have one of these in their C-File – then it is effectively closed as of February 19, 2019, unless you were already on appeal seeking an earlier effective date.

Why?

To get the VA to readjudicate that open and pending claim, you would have to do this:

  1. File a claim to reopen with new and material evidence, and, when you get the claim service-connected, use 38 C.F.R. §3.156(b) to argue for an earlier effective date.

As noted above, any claims to reopen undecided as of February 19, 2019, are now supplemental claims. Under 38 C.F.R. §3.156(b) does not apply to supplemental claims.

Abracadabra.

You lost your earlier effective date, and the VA benefits from sitting on an unadjudicated claim for years, or more commonly, decades.

Appeal Modernization is going to turn out to be another VA bait-and-switch. This is just the tip of the iceberg of trickery that is buried in the VA’s implementation of this new system.

But, that is how the VA plays the game.

It’s never about getting veterans the help they need to reintegrate into civilian life after years of combat, deployment or even peace-time military service.

It’s about making things easier for the VA.

And, by that metric, Appeals Modernization will be a smashing success.

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