In this post, I will give you an overview of what the VA is calling “AMA” or VA Appeals Modernization.
Basically, there will be 3 structural changes to the current VA appeals process, what the VA will call the “Legacy VA Appeals process”.
This post covers the FIRST of those major structural changes – the 3 choices of appeals you will have under the new system.
But first, a “refresher” on what VA Appeals Modernization is.
Refresher – What is VA Appeals Modernization?
Let’s remember what VA AMA is.
So we know that there has been a massive VA Appeals Backlog. It started years ago, when the VA decided to “fix” the VA Claims Backlog, and just denied a ton of claims, and told everyone that they were getting faster.
The VA counts claims and appeals separately, so to make their VA Claim numbers look better, they just denied a bunch. Some veterans gave up, others filed appeals. So many filed appeals that the appeals system began to backlog.
It was so bad that back in April 2018, if the VA took in no new appeals, and worked around the clock to issue decisions at their current pace, it would take until 2026 to clear out the backlog.
The rational response is to admit that the VA is incapable of saving its own problems.
The sane person would admit that the entire VA benefits system is broken and needs to be gutted and rebuilt to match the needs of a new era of veteran.
But instead, Congress decided to go “once more into the breach” with the VA and in 2017 passed the VA Appeals Modernization process.
This legislation is the single most significant piece of Veterans Benefits legislation to come out of Congress since the Judicial Review Act in the 1980s, and it will change your VA claims and appeals dramatically.
The changes center on 2 themes:
Theme 1: structural changes to the types of appeals a veteran or survivor can make, and when
Theme 2: structural changes specifically to the BVA hearing and the process to get a BVA hearing.
This post discusses the second theme, and discusses the types of appeals a veteran or survivor can file, when they can file them, and what purpose they serve.
One Warning about Terminology. VA AMA refers Veterans Appeals Improvement and Modernization Act of 2017. The VA has not settled on terminology for the new process, but we know that the old process will be pretty uniformly known as the Legacy Process.
Right now, we have two appeal processes: Legacy appeals and the VA Appeals Modernization (AMA or Modernized Appeal) process.
Throughout this post, and the entire series, here’s how I differentiate the two appeals processes:
VA AMA (the actual appeals modernization process after February 19, 2019)
Legacy (the old appeal process before February 19, 2019.
Clear as mud?
Let’s talk about the new types of appeals you will (theoretically) be able to file under the new modernized appeals process.
VA Appeals Modernization Change #1:The Supplemental Claim is a critical new “appeal” option.
Under the new VA Appeals Modernization process, you will get 3 appeal options.
** THESE OPTIONS ONLY APPLY IF YOU OPT-IN TO THE AMA PROCESS WHEN A RATINGS DECISION, STATEMENT OF CASE (SOC) or SUPPLEMENTAL STATEMENT OF THE CASE IS ISSUED AFTER FEBRUARY 19 2019.**
That’s as easy as it gets folks.
Now, instead of just appealing and waiting in a broken system, you are going to get to choose between 3 broken systems to chose from.
You have to make a decision which process is best for your claim, wade through all the bulls**t and myths and fairytales that other vets and VSOs spread about the process, and pick an option that will be non-reversible.
That said – can you tell I am not a big fan of this new VA Appeals Modernization process – selection of one of these options is triggered by your dissatisfaction with a VA ratings decision on your claim.
Regardless which pillar of your VA claim you are denied for – eligibility, service connection, impairment rating, or effective date – you are still going to have to choose one of these 3 appeal options.
It is too early to know how to decide which option will be best for any given claim or appeal. We just don’t have enough examples or data yet.
Here, however, are the 3 options you will have to choose from:
Option 1, the Supplemental Claim (The concept behind this is similar to a reopened claim).
Option 2, the Higher Level Review (This is not only like a DRO review, but also unlike a DRO review).
Option 3, the BVA Appeal (The BVA appeal and hearing we have lived with for over half a century).
Option 1: Supplemental Claim.
If you do not get a favorable decision in your VA claim, and believe that with additional evidence the decision would be different, you can file a Supplemental Claim.
The Supplemental Claim is the grenade pin of the whole VA Appeals Modernization plan. If it works, the plan works. If it becomes just another tool to delay and deny, this system will collapse into itself very quickly.
Under the statute – which may not at all be what the VA puts into regulations – you will be able to file a VA Supplemental claim any time after a ratings decision.
However, to properly file a supplemental claim, you will have to send it in with “new and relevant” evidence (which Congress has asked courts to construe in the same way as they did the phrase “New and Material evidence”).
Your “new and relevant evidence” will have to be sent in within 30 days of the Supplemental Claim form you file.
How will the supplemental claim affect your effective date?
If your Supplemental Claim is filed within 1 year of your VA Ratings Decision, the effective date will remain the date of the original underlying claim. This is called continuously pursuing the claim. If you file it more than 1 year after the VA Ratings Decision, your effective date will be the date of the Supplemental Claim.
There is no limit to the number of Supplemental Claims you will be able to file, although I presume that it makes sense to file only one per medical condition at a time.
This has disaster written all over it – veterans are so desperate for action from the VA that I am hearing of veterans filing “reconsideration requests” on VA Duty to Assist letters, clogging the system up really bad.
VA Supplemental Claims must always include new and relevant evidence as to the element for which the prior claim was denied.
A Supplemental Claim can be filed after any VA adjudicatory action issued after February 19, 2019: VA Ratings Decision, BVA Decision, even (as the statute is written) CAVC decisions.
Of all of the options in the VA Appeals Modernization process, the VA favors this option, and it’s easy to see why.
If done in a certain way, and with a certain subset of veterans (those who don’t know the system or don’t hire an advocate to help) the VA can deny a veteran or survivor’s claim and appeal forever, without ever giving the veteran a viable option at judicial review.
Option 2: Higher Level Review.
If you are not satisfied with your VA Ratings decision, but have no new and relevant evidence, under the VA Appeals Modernization process you will be able to request what is called a “Higher Level Review”.
The Higher Level Review will (in theory) be performed by an experienced VA Rater a rater at the same or different office as the original decision.
This is all part of the shift to the National Work Queue, where work is assigned to the next available employee, irrespective which VA Regional Office serves the Veteran. Expect this option – the right to choose where the Higher Level Review occurs – to disappear pretty quickly
The Higher Level Review is different from the old DRO process in that under the DRO process, you could submit new evidence to the DRO. The Higher Level Review Process does not let you submit new evidence. You are stuck with what was in the file when the VA denied you.
This boggles my mind. The Higher Level Review takes away the one thing in the last 20 years the VA did that was not only popular with veterans, but also highly successful: the DRO (Decision Review Officer) process. Not only that, it eliminates the very thing that made the DRO process so successful and popular with veterans: a veteran could submit new evidence and argument directly to a senior VA claims rater and get a quick decision or statement of case from the VA, moving the case along.
The VA can deny a request for a Higher Level Review for good cause shown.
Option 3: BVA Hearing and Decision.
Not much will change about this option, the BVA Hearing option in the VA Appeals Modernization process.
However, almost everything will change in how you GET TO the BVA hearing.
What do I mean?
I am going to discuss this in great detail in the next part of this series (a link will appear here when it is published).
For now, here is a summary of the major changes to BVA Appeals in the VA Modernized Appeal process:
- You have 1 year from the date of the VA Ratings Decision to file your BVA Appeal.
- You no longer need to perfect an appeal by filing a NOD, waiting for a Statement of Case (SOC) and filing a VA Form 9 Substantive Appeal. Instead, your appeal to the BVA, at least in theory, will be initiated by a single notice of disagreement, that will have slightly more formal pleading and filing requirements.
- The NOD will be filed with the BVA, so in theory, the VA appeals certification process will go away.
- The BVA has additional authority to decide whether an appeal is adequate and will be able to dismiss those it thinks are inadequate.
- After your BVA appeal, you will be able to choose 3 “Tracks” or “Lanes” for your specific BVA Appeal. The 3 tracks – which I will discuss in more detail in the next post – all involve different combinations based on whether you want a hearing and when you want to include evidence in the record.
- The BVA will maintain at least 3 dockets: a hearing docket, a no-hearing docket, and a legacy docket for those appeals that are still handled under the current system.
- BVA Hearings will be video by default, but advocates may be able to request to alternate
- The biggest change is this: once the VA issues a Ratings decision, the Duty to Assist “expires”. Frankly, this may be a good thing. I never saw a lot of value in the duty to assist, as the competent veteran sought out and proved up their own claims with 5 Star Evidence of their own.
Coming next: the 3 BVA Hearing Options.
In the next in this series, I will explore the details of the 3 different BVA Hearing options in the VA Appeals Modernization system.
When the post goes live, this text will be replaced with a link to that post.