This week the Department of Veterans Affairs launches its new, revamped appeals process for veterans disputing their disability claims decisions.
The new law is called the Veterans Appeals Improvement and Modernization Act of 2017; or in shortened form, Appeals Modernization Act (AMA). Passed into law in 2017, the Act intends to reform the unacceptable wait times and backlog caused by the flawed, archaic system for Veterans appeals.
The “old” VA appeals system is now referred to as the “Legacy System.” Where the legacy system had one path towards appealing an unsatisfactory VA decision, the new VA appeals system offers several.
From November 2017 up until last week, the Appeals Modernization Act underwent a “test run” known as the Rapid Appeals Modernization Program (RAMP). RAMP is now discontinued and the new law is completely in effect.
Big Changes under the VA Appeals Modernization Act
If you have filed an appeal with the VA, you know how abysmally slow and frustrating the process can be. Here’s how VA has redesigned the appeals process in hopes of achieving faster resolution of disagreements.
Under the AMA, you choose from three “processing lanes” to request VA’s review of a denied claim or unsatisfactory decision.
Lane 1: Higher-Level Review
With this option, a more experienced VA rating specialist at the VA regional office gives a final decision on your claim, where:
- You believe VA made an error in the initial decision;
- Your claim gets a de novo review, meaning the same information gets a completely new review and consideration by the higher-level reviewer;
- You may not submit new evidence;
- Feasibility for overturning a decision may be based on (1) a difference of opinion or (2) a clear and unmistakable error;
- Your or your representative are allowed one informal phone call with the reviewer to pinpoint particular errors in your claim.
VA’s goal is to complete higher-level reviews averaging 125 days.
Lane 2: Supplemental Claim
This option is helpful if you have identified missing records or have new evidence to back your case:
- You know what records are missing from your initial claim, or you have new, additional evidence to submit to better support your claim;
- VA has a duty to assist you in gathering the evidence;
- When all existing or new relevant evidence is submitted, VA will readjudicate your supplemental claim taking into consideration all of the evidence of record and render a final decision.
VA’s goal is to complete supplemental claims averaging 125 days.
Lane 3: Appeal the Decision to the Board of Veterans’ Appeals (File NOD)
The Appeals lane allows you to appeal directly to the Board of Veterans’ Appeals (BVA). You initiate appellate review by filing a notice of disagreement (NOD). This takes you directly to the BVA. You now also elect one of three dockets that would best serve your case:
- Direct review docket: Your claim is fully developed; you have no new evidence and do not want a hearing.
- Evidence docket: You have new evidence, but do not want a hearing. You have 90 days from the NOD to submit the additional evidence to VA.
- Hearing docket: You have new evidence and want to testify before a Veterans Law Judge.
Note, after an appeal has been filed, VA no longer has a duty to assist you in developing additional evidence. Decisions appealed to the Board under its direct docket will average 365 days.
What Happens after You Appeal in Lane 1, 2 or 3?
Lane 1: Higher-Level Review:
Your original claim date is preserved if the decision is favorable. If unfavorable, your choices are to (1) file a supplemental claim or (2) file a NOD to appeal to the BVA.
Lane 2: Supplemental Claim
Once a decision is issued, if you are not satisfied you may choose from the three “lanes”: High-Level Review, Supplemental Claim (again), or Appeal to the BVA.
Lane 3: Appeal to the Board of Veterans’ Appeals
Your original claim date is preserved if the decision is favorable. If unfavorable, you may file a supplemental claim inside of one year, or you can elect to file an appeal to the Court of Appeals for Veterans Claims.
What If your VA Claim Is Currently Pending in the Legacy System?
The legacy (old) system of VA disability appeals will continue until those claims are processed and resolved. Rating decisions issued prior to 2019 will stay in the legacy system.
However, if your case is now pending in the legacy system at the Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) decision points, you may opt into the new AMA system. Or, you may stick with the legacy system if you think it will better benefit your case.
What Can You Expect with the New VA Appeals System?
It is crucial the AMA meets the challenge of clearing the appeals backlog. For some disabled vets, appeals have taken up to seven years; others have died while waiting.
VA hopes to reduce the entire process from the current 3-7 years down to 1 year or less. Hundreds of new employees have been hired or contracted by VA to handle the appeals.
Although it is just now rolling out, one weakness has surfaced under the Appeals Modernization Act. If your claim involves Appealing to the BVA (Lane 3) and the Board is aware of additional relevant evidence that could help your claim, the Board no longer has a duty to assist you with gathering those records.
Speaking as veterans disability lawyers, the new VA appeals system offers more choices, which is the essence of freedom. Yet this new system is a massive change. Choices made will involve complex decisions, and decisions have consequences.
Before jumping right into the new process, or instead of losing precious time wondering how to proceed with your claim, we urge you to seek accredited help from your veterans’ attorney, your VSO, or other accredited VA agent.
We Can Help With Your VA Appeal Today
Our law firm is dedicated to helping veterans appeal wrongful VA benefits decisions. Winning on appeal requires the ability to incorporate legal arguments, formulate rebuttals, develop evidence necessary to satisfy VA’s legal requirements, and preserve the proper effective date of your claim.
If you are a military veteran in need of assistance with an accredited veterans’ attorney, we welcome your call. We are ready and able to help you select the processing lanes that will help you most.