The CAVC precedential opinion in Andrews v. McDonough, issued by the Veterans Court on May 28, 2021, is an interesting case, especially because of what it implies about the BVA Direct Review lane.
This is a long post, to be sure. But I think this information is critical – if you are appealing to the BVA under AMA, or are a VSO or accredited agent or attorney representing a veteran making such an appeal, there are some traps that you need to be aware of.
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The issue, generally, was what can the Veterans Court direct the BVA to do when it vacates or sets aside a Board decision under the AMA and remands it to the BVA for re-adjudication.
In the Andrews case, the veteran and the VA both agreed that the BVA screwed up and failed to fulfill the duty to assist by relying on an inadequate medical opinion.
What the VA and the veteran disagreed on was what happened after the CAVC remanded the appeal back to the BVA.
Let’s go to the facts.
The veteran was appealing a low-balled knee rating from the VA, and he and the VA agreed that the BVA relied on an inadequate medical opinion in reviewing the rating assigned by the VA Regional Office (what we are now calling the Agency of Original Jurisdiction, or AOJ). So, because the parties agreed that there was error in the BVA decision, a remand to the BVA was necessary to fix the Board’s mistake.
Under the legacy appeals system, when the Veterans Court remanded an appeal to the BVA, the CAVC included instructions that the veteran and their representative were to be given notice and 90-days to submit additional evidence and argument to the BVA before its decision.
Advocates for veterans loved this – the Court became a way to reopen the record before the BVA. The veteran could add new evidence and take advantage of Congress’s requirement that remands from the Court be handled “expeditiously”. Whatever it meant to handle the remand expeditiously, remand decisions from the BVA under the Legacy Appeals system were some of the faster decisions the BVA issued under AMA.
The BVA hated this arrangement, though.
It required the veterans law judges at the BVA to develop new evidence, re-consider the duty to assist, reweigh the evidence, etc.
This was a problem because a BVA judge spent an average of 25 minutes on each case that came across their desk. To have to do that twice was slowing the BVA down even beyond its already snail like pace for issuing decisions.
(For a frame of reference, it can take me two hours just to familiarize myself with the record in a new case – and that’s before I ever assess legal arguments and the merits of the VA claim. So perhaps the real problem underlying Andrews is not a legal question at all, but a policy one: how do we pressure the BVA to improve the quality of their decisions?)
This was a major motivating factor for the AMA – it was a BVA driven appeals model that essentially tried to shift work – and delay – off the BVA’s shoulders, and push the work either up to the Veterans Court or down to the VA regional offices. The way they did that was through the use of “lanes” for veterans appealing to the BVA.
In fact, at its core, the AMA is an appeals process that allows the VA and BVA to bounce appeals back and forth, without any need to decide the appeal, without either part of the VA having to shoulder the blame for delays. Each veterans delays become an individual problem, not a systemic problem.
There are three appeals lanes to the BVA under VA Appeals Modernization.
Let’s do a quick recap of how AMA works at the Board of Veterans Appeals.
Rather than just have one path to the BVA under the legacy appeals system, under the VA appeals modernization process, there are three appeals lanes.
Each is initiated by a VA Form 10182, the Notice of Disagreement form, which the veteran must submit within one year of an adverse VA rating decision.
When the veteran filled out VA Form 10182, the veteran would then choose one of three appeal lanes to the BVA:
Lane 1: Direct review (no evidence and record closes when VA issues its decision)
Lane 2: Evidence only (veteran can submit new evidence within 90 days of the BVA’s receipt of their notice of disagreement)
Lane 3: Hearing lane (veteran gets a BVA hearing hearing and can submit new evidence to the BVA within 90 days after the BVA hearing).
These three lanes have not improved the quality of BVA decisions.
75-80% of BVA decisions STILL have legal or factual errors that can – and should – be appealed to the Court of Appeals for Veterans Claims.
Under the new AMA appeals system, the BVA still misapplies the law more than it properly applies the law when it comes to PTSD ratings, knee ratings, service connection for conditions pre-existing service, agent orange exposure claims, etc.
But while quality at the BVA has gotten worse, the speed of at least one of the three appeals lanes has improved.
As an aside, how long does an appeal in the BVA Direct Review lane take to get a decision? The BVA statistics published online will give you the most current numbers, but veterans who use the direct review lane appear to be getting decisions from the BVA in about 9 months, give or take.
Don’t celebrate though, a crappy BVA decision is still a crappy BVA decision whether its issued in 4 months or 4 years.
Why is the BVA Direct Review lane so much faster?
The BVA made a conscious choice when they backed the AMA process. They choose “passing the buck” and issuing rapid decisions over quality adjudication for veterans and their survivors.
The primary reason the BVA is able to do that is because under the direct review lane, the BVA doesn’t have to do any development.
They aren’t bound by the Duty to Assist.
And a BVA judge can use their 25 minutes per case to continue to misapply the law or ignore facts, because they know that only around 8 – 10% of veterans will appeal those crappy BVA decisions to the Court of Appeals for Veterans Claims.
Which brings us full circle to the Andrews decision.
In Andrews, the veteran was appealing a low-balled knee rating from the VA, and he and the VA attorneys agreed that the BVA dropped the ball by relying on an inadequate medical opinion.
In a perfect world, after issuing tens of millions of decisions over the past 2 decades, the BVA would have learned what makes a medical opinion adequate. They would recognize that the failure to provide an adequate medical opinion is a duty to assist violation and they would have remanded the matter to the VA Regional Office (what we are once again calling the ‘AOJ’ of “Agency of Original Jurisdiction”) to get an adequate medical opinion.
But as we noted above, the BVA’s function under AMA is little more than to pass the buck: they punt the VA’s duty to assist errors to the CAVC to fix.
And, in the Andrews appeal, the VA’s Office of General Counsel and the veteran’s attorney agreed to another remand of another BVA decision that failed to consider – properly – the adequacy of a medical opinion.
Under legacy, that would have been the end of things.
The matter would have been remanded to the BVA, and the CAVC would have instructed the BVA to take in new evidence and argument and re-evaluate the appeal on its merits.
And that’s what Mr. Andrews counsel hoped for: a remand from the Veterans Court that would allow them to put new evidence into the record before the BVA on remand.
The Secretary balked and said “No Way!” under AMA in the direct review lane, the record closed when the VA issued a decision, so a remand to the BVA can’t reopen the record to allow new evidence in.
So the VA and the veteran asked the Court to resolve this dispute, and the Andrews decision is the product of that decision.
The Court’s decision seemed to be on the right track in making this decision.
At one point, I was optimistic, because the Court locked on to the flashpoint of the controversy: what the Court can and can’t do when crafting a relief instruction in its remand orders to the Board of Veterans Appeals. The Court acknowledged that:
“…the Secretary’s view [that the record is closed on remand] challenges our statutory authority to ‘affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate…’ and the requirement that ‘to the extent necessary to [our] decision and when presented . . . [we] decide all relevant questions of law.’ ”
Translation: what the Court tells the BVA to do on remand is a function of the Court’s jurisdiction and the scope of the Court’s review authority, and not the BVA’s procedures.
But then, the Court made an abrupt U-turn:
“[T]he Court finds that the statutory and regulatory provisions establishing the new appeals system, the AMA, control the result here.”
It is at this point that I think experienced court-watchers all heard that proverbial needle scratch across the surface of a record.
We asked, “Why is the Veterans Court looking to the AMA statute to define its own remand authority?”
As my friend and veterans advocate Amy Kretkowski said, “Why is the Court letting a check box on VA Form 10182 control the scope of its judicial review authority?”
And you know what? She’s right.
The Court gets its jurisdiction, along with the scope of its review authority, from Congress. And Congress has given the Court the “…power to affirm, modify, or reverse a decision of the Board or to remand the matter, as appropriate.” 38 U.S.C. §7252(a).
The Appeals Modernization Act did nothing to limit the Court’s jurisdiction, its scope of review, or its authority to craft the appropriate remedy on remand.
What happened is that the Court fell into a trap.
It viewed what should happen on remand as a “policy view” and not a function of the Court’s exclusive authority to craft the appropriate remedy when reviewing a BVA decision.
I don’t think this decision can stand.
But because the issue of the Court’s jurisdiction to craft the proper remedy was not briefed before the Veterans Court, an appeal to the Federal Circuit is a risky proposition, and risks entrenching bad law in a Federal Circuit panel decision: as a general rule, the Federal Circuit has shied away from offering opinions on issues or addressing legal arguments that were not raised at the Court below.
Nevertheless, until Andrews is reversed or over-ruled, it is the law we are stuck with.
What does Andrews mean for veterans and advocates filing BVA appeals?
I think there are a couple points to note, here.
First – and this is critical – the Andrews decision serves as a stark reminder that veterans and their advocates must make informed – and intentional – choices about which BVA appeal lane is appropriate.
I think that as long as Andrews is the law, if the veteran’s record at the time of the VA Rating Decision being appealed does not have all the evidence you need to win at the BVA, then the veteran should NOT choose the direct review lane.
It seems to make more sense to keep using the supplemental claim and higher level review processes in tandem until the record is complete, before the veteran appeals to the BVA using the evidence lane or getting on the BVA hearing docket.
(Caveat: be sure that you are certain that any evidence added by a supplemental claim is new and relevant, or using the Supplemental Claim and Higher Level Review process could backfire and cut off an earlier effective date.)
There are four times that I see value in the Direct Review Lane:
First, when the issue in the case is purely legal – the VA’s misinterpretation of a statute, regulation, or rule – and the record is complete. When I say “complete” I mean a record that has enough evidence to win the claim without adding another piece of evidence. This is dangerous, because it’s hard to know what legal position the Secretary will take until the appeal gets to Court, and by then the record is closed. Any opportunity to add new evidence to support a challenge to the Secretary’s future interpretation is very likely lost when you appeal using the Direct Review lane.
This is going to require veterans to become better at choosing advocates who know how to use evidence and know how that evidence will play out at the BVA and ultimately the CAVC.
Firms – and VSOs – who don’t represent veterans at the CAVC should consider entering relationships with firms that do, to seek out guidance on what evidence is missing before the claim is appealed to the BVA.
Second, if you have a legal issue that needs to be fixed before the VA will properly decide your case, then the direct review lane to the BVA is a fast track to the Court. By law, the BVA cannot interpret statutes or regulations or interpret the Constitution, so you can get that fast and bad BVA decision to the Veterans Court in months, rather than what used to take years under Legacy.
This is going to require advocates to start including persuasive and thorough legal briefs to the BVA – the Court continues to increase the number of cases where it denies an appeal of an erroneous BVA decision because the advocate did not raise the argument at the BVA.
Third, you might be able to use the direct review lane to tell you what evidence is missing from the record. After appealing a VA rating decision to the BVA under the direct review lane, you will get a decision from the BVA. If the underlying VARD is an AMA VARD (issued after February 19, 2019), then you can file a supplemental claim to the VA with that new evidence and theoretically the VA should grant.
That’s a theory – remember, no strategy survives the first contact with the VA.
This latter approach is only as valuable as the supplemental claims process, however.
If the VA is issuing supplemental claims decisions fairly, accurately, and quickly, appealing to the BVA using that strategy would likely be a slower path to the same result.
But if the VA is not issuing supplemental claims decisions fairly, accurately, and quickly, appealing to the BVA only adds time to the process – the supplemental claim after the BVA decision will still be slow, so time spent sitting the BVA is wasted time, unless the BVA is clear as to what is missing from the record.
Fourth, clear duty to assist violations by the VA prior to the VARD might make the direct review lane a more viable option. If the VA Regional Office (aka, the AOJ or Agency of Original Jurisdiction) commits a clear duty to assist error (for example, failure to provide examiner credentials, failure to provide a C&P exam, failure to provide an adequate C&P exam, and more), then the BVA may remand to the AOJ to fix that error.
However, the veteran and their VSO or accredited VA attorney will need to evaluate whether and when a BVA direct review appeal to correct a Duty to Assist error is a smarter option than filing a Higher Level Review. If the veteran has already filed and lost an HLR review on the same decision, then they could not file a second higher level review and might need to weigh the value of going to the BVA against the value of a supplemental claim.
In some cases, it may makes sense to appeal the VA’s duty to assist error to the BVA using the evidence lane, which could theoretically give the veteran and their attorney 90 days to challenge the credentials of an inadequate VA C&P opinion, add in a favorable nexus opinion, and use that favorable nexus opinion to undercut the competency and credibility of the VA’s examiner.
You should be. I have long said that the AMA is a game of three-dimensional chess.
These may not be the only times that a Direct Review BVA appeal will be appropriate – if you. Have another scenario, I would LOVE to hear from you.
Nevertheless, the writing is on the wall.
Under AMA, veterans advocates are going to need to step up their games – when the VA denies a claim, a veteran and the advocate are going to need to war-game the possible options and outcomes for challenging that decision – choosing between HLR, Supplemental Claim and BVA appeals can no longer be a knee-jerk reflexive decision, but will require strategy and intention.
This is ultimately what bothered me most about the Andrews case: I don’t understand the strategy behind Andrews – why was this the case to ask the Court to talk about its authority to issue relief in remands of AMA appeals back to the BVA?
In Andrews, the BVA erred when it relied on an inadequate VA C&P ratting exam – that’s a duty to assist violation. Because the veteran and the government agreed, at Court, that a remand was necessary to fix the duty to assist error, Mr. Andrews’ case was never going to stay at the BVA in the first place. The BVA would have passed the buck back down to the AOJ to fix the error. So asking the Court to craft a remedy that would provide what the AMA system would have naturally provided, and quicker, has me perplexed.
I’m not saying it was the wrong case to have the Court assess the scope of its relief in remands of AMA appeals back to the BVA: I just don’t understand why this fact pattern was chosen.
And that is my point: under the AMA, attorneys, agents, and VSOs are going to have to include appeal strategizing as part of their representation. We need to START playing the game of three-dimensional chess that is the AMA appeals process.
Nevertheless, here is the bottom line – AMA is “a whole new world began in the VA benefits adjudication system.”
Pro-se veterans, VSOs, and accredited advocates need to treat it that way by improving the way we build the record in our cases and in the way that we choose our appeal strategies.
Veterans need to make better choices of representatives.
Veterans should look for attorneys with the know-how to build a factual record that tees up the facts and law for the BVA, and that will be sufficient to preserve error in a BVA decision for ultimate appeal to the Court.
Accredited attorneys and skilled VSOs might consider partnering with a firm that has experience at the CAVC to help them evaluate the strategy options at the time the VA issues a rating decisions, and before the record closes at the BVA.
At a minimum Veterans should stop hiring the “claim sharks,” too – these so-called insiders to the VA claims process, comp and pen services for vets, and alleged guardians of veterans who charge exorbitant and illegal fees, mine private data about your identity from eBenefits for their own (unknown) purposes, and throw in an alleged expert nexus opinion in a supplemental claim. These types of scams may have worked well under the legacy appeals system, where the record never closed. But, in my opinion, it’s only a matter of time before veterans start figuring out that these claims sharks may be doing far more harm than they are aware.
If you get a VA rating decision and are unsure what way to go, reach out to the law firm of Attig | Curran | Steel. We’ve got a lot of experience with the Court, and that experience allows us to really assess the best strategies for challenging VA rating decisions under AMA.
Andrews v. McDonough
May 28, 2021
Appellant’s Counsel: Richard Spataro, Alexis Ivory and Bart Stichman from NVLSP
Attorney for the VA Office of General Counsel: Jonathan Scruggs
CAVC Panel: Judges Greenberg, Falvey, Laurer (Decision written by Judge Laurer)
BVA Judge: D. Martz Ames
Attorney representing the BVA: Ryan Frank
Supplemental Claim: May 2018
VA Rating Decision: August 2018
BVA Decision: January 17, 2019
Link to Panel Decision in Andrews
Link to Appellant’s Reply Brief
Link to Secretary’s Response Brief
Link to Appellant’s Opening Brief