Appeals at the Board of Veterans Appeals

Video Transcription:

Courtney Ross: Hello everyone and welcome to CCK Live with Chisholm Chisholm & Kilpatrick. I’m Courtney Ross and joining me today is Michelle DeTore and Nick Briggs.

Today we’re going to be talking about appeals at the Board of Veterans’ Appeals. The broadcast today is going to focus specifically on appeals in the new Appeal System or AMA. And so before we get into specifics, I want to just provide a quick AMA overview as a reminder.

So, in February of 2019 VA officially implemented the Appeals Modernization Act or AMA in this new system. When a veteran receives a rating decision from VA that they want to appeal. They have three primary appeal options. They can file a Supplemental Claim with that decision. They can choose a Higher-Level of Review, or they can choose to file a Notice of Disagreement directly to the Board of Veterans’ Appeals.

So this broadcast is going to focus on this third option, but if you do want more information on AMA or those other two review options, you can check out our blog. We had a lot of information about AMA at cck-law.com.

So, to further complicate or really just give additional options. If a Veteran chooses to file a Notice of Disagreement to the Board, they have three more options they can select from. There are three different dockets at the Board, and they can select which docket they want their appeal adjudicated at. There is the Evidence Docket, the Direct Docket, and the Hearing Docket.

So we’re going to walk through each one of these and break down the specific details and nuances  of each docket. So, Nick, I’m going to turn to you first. Let’s start with the evidence docket. Can you give a little bit of background about what the evidence docket is?

And the name kind of speaks for itself and that evidence can be submitted in this docket. So giving a little bit of insight into what type of evidence you could submit.

Nick Briggs: The evidence docket is for claimants who want to submit additional evidence in support of their appeal but when they don’t want a hearing. So this one kind of falls in between the direct docket and the hearing dockets, which we’ll talk about later in terms of how long it might take for you to receive a decision.

In this docket, they can submit additional evidence either with the Notice of Disagreement itself or within a 90-day period following the submission of their Notice of Disagreement.

In terms of the specific types of evidence they can submit, it sort of runs the gamut. You can submit medical evidence, lay evidence, service records, so on and so forth. You just need to make sure that the evidence is specific to the issues that you’re arguing and appealing to the Board.

Courtney: There seems to be kind of more specific rules it seems like right? For when evidence can be submitted in the docket, and those rules help to determine what evidence the Board will actually consider.

So Michelle, can you explain that a little bit further? in terms of what the Board – what evidence the Board will look at if you’re filing an appeal in the evidence docket?

Michelle DeTore: So the Board should consider the evidence of record at the time the agency of original jurisdiction to the Regional Office made the underlying decision you’re appealing. Keep in mind, it’s only going to be the evidence that THAT adjudicator could also address when we’re talking about the evidence of record. Sometimes, based on your lane that you’re coming from and going to the Board. It could restrict what evidence maybe that duty adjudicator could have been reviewing.

But they’re also so that the VA considering all evidence that was submitted by the claimant, or the claimant’s representative within that 90-day window. So, like, you know, Nick was saying, you can either submit your evidence with your submission, or you have 90 days from your election and your Notice of Disagreement in file to submit that additional evidence.

A good thing with the Board decisions, it’s slightly different than the Regional Office decisions, how the Regional Office decisions will list out every piece of evidence they’ve considered. The Board will kind of create a more of a summary when they’re discussing the evidence of record. So you kind of get to see if the board did address or discussed the evidence that you’ve submitted.

Courtney: We’re talking about these three different docket options if a Veteran wants to appeal to the Board, and we’re going to walk through the specifics of each.

So, you know, what are some thoughts on “What makes the evidence docket the right choice in a certain case for a veteran?” If they were trying to determine what are the pros of the evidence docket, what are some things that you should think about?

Michelle: So I think a good thing is you know, the fact that maybe you don’t want a hearing and keep in mind, the hearing docket is the longest wait time for a decision from the board, but you have additional evidence you want to submit to the Board that maybe isn’t of record already.

It’s usually a good option when you kind of gotten to a point with the Regional Office, or you know you want to get this before the Board. Sometimes, more complicated or complex issues are better handled by the Board. So submitting that additional evidence and getting up to the Board will give you a chance to get that decision – may be a favorable decision a little bit sooner. And again, it’s the option to submit evidence to the Board rather than maybe wait for the hearing. So it’s going to take a little bit more time than a direct docket, but less time from what we understand than the hearing docket.

Courtney: And I think that’s a great segue into summarizing, the second type of docket, which is the direct docket. And so in this docket, no additional evidence can be submitted, and you cannot request a hearing in this docket.

So in other words, if a Veteran wants, if a veteran selects a direct docket, the Board is only going to consider the evidence that was of record at the time of the decision that’s being appealed. So at the time of the, usually, a rating decision that’s being appealed.

So, one important distinction in this docket too is that you can submit an argument based on the evidence that was already of record at any point up until the time the Board makes a decision, but you can’t submit evidence. So that would be things like, you know, Nick mentioned before in terms of what can be submitted in the evidence docket — medical opinions or additional treatment records, or lay testimony. If it wasn’t previously part of the record,
when the VA made the decision that you’re appealing, you cannot submit in the direct docket.

And so that’s obviously quite a distinction from the evidence docket that we just outlined where there’s while they’re strict rules about when it can be submitted. You’re allowed to submit additional evidence in the Board will need to consider it assuming it’s submitted within the correct windows.

So, Nick, Michelle mentioned that you might receive a decision quicker in the direct docket how long can Veterans expect to wait for a decision if they selected the direct docket?

Nick: So at this point, VA still has a target goal of 365 days or one year. But obviously, the goal can be impacted by the number of cases that they receive on the direct docket. In terms of how they organize things, each case has a target distribution date. And that distribution date is what they consider to be the date by which the case must be decided and that’s usually set by
365 days from receipt of the Notice of Disagreement, and the amount of time that it takes for the case to eventually be decided by a Veterans Law Judge.

We have a BVA backlog tracker that provides some insight as to the recent wait times these Veterans have experienced, but by and large, this still remains the fastest of the three dockets. We are still receiving decisions within that year’s time frame or pretty close to it.

In terms of benefits of the direct docket, again, the major benefit is to get your case before the Board as soon as possible. Oftentimes, you’re going to be dealing with legal issues that the Regional Offices aren’t equipped to handle, and you just want to get the case to the board as soon as you can, so that the Veterans Law Judges can take a look at it. Because you have this option to you, you can take it to the Board as soon as you can. And even if you do get a denial, you still have options down the road to include filing a new Supplemental Claim or still going to court like you did in the old system.

It also eliminates additional wait time at the Board for any Veterans who already have fully developed claims, where there really isn’t more evidence for them to submit at this point.

Courtney: Yeah, I think that’s a really important point. And again if you want or looking for additional information on what Nick just mentioned about, what the reviewer appeal options are after the Board decision. Again, we have a lot of information on our blog at cck-law.com and that will give you some more information on those specific review options.

So, I want to turn now to the third and final docket option at the Board which is the hearing docket. Michelle, I’m going to turn back to you if you give us a little bit of an overview about what the hearing docket is and how it works.

Michelle: So essentially the hearing docket is one of better wants to have it here before the Veterans Law Judge. At this point in time, you know, the claimant is entitled to a hearing on any issue involved in that appeal.

I think that’s an important point to point out to clients and Veterans, in general, is that the judge for the Veterans Law Judges really only going to discuss the issues involved in that appeal. They’re not going to discuss any issues that may be on appeal elsewhere. And essentially that’s just because they don’t typically jurisdiction over the issue to make any decision on it. So just keep that in mind is that your hearing is limited to the issues that are within the hearing docket on that appeal before the Board.

So this docket, how it works essentially is, so VA has a form- VA form 10182. It’s the Notice of Disagreement to the Board. So here you would check off that you want a hearing, also noted on the form is that this will delay your case a little bit, it does actually note on the form just to kind give clients and veterans kind of another additional idea of the time frames on it. Kind of different from the Legacy system which we were talking about a little bit earlier today is, in the Legacy system on the form, you were able to select what type of hearing you wanted. Here, you will get usually a follow-up notice from the Board instead, asking you what type of hearing you want?

So right now, in the AMA system, there are three types of hearing. So you have the central office hearing which is essentially that you’re having a hearing at the Board’s headquarters where you’re essentially in the same room with the Veterans Law Judge.

A second option is that we call it a Regional Office hearing essentially the judge is in Washington DC and you are located in your VA Regional Office and it’s basically the kind of a virtual link that you have your hearing.

The third option, and the option that the Board is only currently doing, is a virtual tele hearing. It’s basically can be anywhere. It’s just a virtual hearing where like you could be in your house and the veterans’ law judge could be at their house and you’re having a hearing virtually through an internet or device capability.

So those are the three options currently you see now. I think it’s important to note there was a fourth option you used to see in the old system, which was we used to call the Travel Board hearing, but unfortunately, that’s no longer offered in the new appeal system.

So typically when it’s time for the hearing, the Board will notify the claimant, and the representative of the scheduled hearing typically in writing. It usually happens at least 30 days ahead of time to give everyone ample time to prepare. Also, there is a possibility that the scheduled time and date don’t work. Request to the Board for a hearing date may be made if you need to change it at any time, up to two weeks prior to the scheduled date, they usually ask for a good cause. So maybe the fact that you’re very ill, you don’t have transportation, there could be some other events that could impact your ability to make that date and time.

So once a hearing is concluded, so you’ll go you’ll do your hearing via one of those three options. It’s always good to be mindful of the fact that you can obtain a transcript of the hearing. You do have to make a request for it. The Board won’t automatically just send it to you.

I do recommend that you do obtain the transcript just because sometimes maybe something got lost in translation that you might want to clarify at a later date.

Courtney: I also just want to mention too, that Michelle mentioned that it says itself on the form that if you do select the hearing docket, you’re likely to experience a longer delay in receiving a decision from the Board. In light of the COVID-19 pandemic over the last year as well, the Board was really only doing virtual hearings, and so I think that’s added to a slight backlog of hearings since the board has – that it still has to work its way through.
So just to keep that in mind too that the pandemic has had an impact on the hearing docket specifically and what types of hearings the Board’s been actually conducting over the last year.

So the hearing docket is similar to the evidence docket and that additional evidence can be submitted by a Veteran and the Board will need to consider it. But again, there are specific time frames for when you can submit the evidence that the Board has to consider.

So at the hearing itself, in addition to the testimony from the hearing, Veterans or their representatives can submit additional evidence at that point, and then within 90 days following the date of the hearing, Veterans can also submit evidence during that time period.

The board will not and does not need to consider any evidence that is submitted between the time that the Veteran files a Notice of Disagreement and the date of the hearing. I mean, it does not need to consider any evidence that was considered after that 90-day window has expired, after the date of the hearing. And so I think that’s just an important point to emphasize in a similar way that we did.

The evidence docket, the timing for when the evidence can be submitted is very specific. This is very different from the old Legacy system as well. So that’s an important point to highlight.

And if you want additional information on the pros and cons of having hearing, if you’re trying to decide whether any kind of docket makes sense for you. We recently did a video on the CCK website and our YouTube channel that you can check out that focuses is on the pros and cons of a Board hearing. If you’re trying to make that decision and want more information, you can check that out as well.

So, that covers the three docket options. If a Veteran gets a rating decision and chooses to file a Notice of Disagreement to the Board of Veterans Appeals.

One important point to know is that the Notice of Disagreement to the Board has to be filed within a year of that rating decision to be considered a timely appeal and keep your claims dream alive.

So Nick, if a Veteran selects, let’s say they’ve selected “I’ve already filed the Notice of Disagreement” and they’ve selected a hearing docket, and they’ve now decided they actually want to switch to the evidence docket or the direct docket. Is that a possibility? Can Veterans switch dockets once they’ve filed that Notice of Disagreement? Notice of Disagreement and made their selection?

Nick: Yes, they can, but there are some requirements that they need to keep in mind. One, it needs to be done within a year of that initial rating decision or I believe within 60 days of the Board’s acknowledgment of the filing of the NOD. They need to file a new NOD form that selects their new choice. That way it can be processed and docketed appropriately.

The other thing to keep in mind is that they can’t change their docket if they’re already locked in. So, for example, a Veteran submits a notice of disagreement, chooses the evidence lane, and submits evidence with that Notice of Disagreement, and in that case, they’re locked into the evidence lane, and they’re going to need to stick it out.

The same goes for Veterans, who are in the hearing lane and have already held their hearing. In those cases, they should just submit evidence within that 90 days if they have it and then wait for a Board decision. But if you’re still within a year, and you haven’t locked yourself in by submitting anything, then you do have that opportunity to switch lanes.

Courtney: So I think, hopefully, one takeaway from this broadcast, is that a Veteran who has receives a rating decision has a lot of different options that they can choose from. And even within the option to file a Notice of Disagreement to the Board itself, they have multiple options within that appeal option to figure out what’s going to work best for them.

Nick: In terms of submitting evidence, just be very careful and very cognizant of the windows of time, during which you can submit evidence. It’s also kind of counterintuitive, but it can often make sense to submit evidence that VA itself is generated.

If you become aware of a VA exam that you think is favorable. You might want to resubmit it and point out why it’s favorable to your case. Explain why it’s retrospective if necessary so that they can consider it as a part of your appeal. The system still new the Board is still figuring out what it can and can’t consider.

So, as long as you’re within one of those evidentiary windows just submit anything and everything that you can.

Michelle: I would just say when you are switching lanes? Make sure you’re using cover-yourself language. So we specifically are very clear that we’re only withdrawing one Notice of Disagreement if they’re finding the other one timely unacceptable. So I recommend submitting everything in with one package thing like I’m withdrawing my direct docket, and I’m choosing the evidence lane, here’s my Notice of Disagreement, but I’m only choosing and withdrawing my direct docket appeal if you find my evidence lane selection timely invalid.

Courtney: Yeah, I think that’s really important too. Because as I mentioned, there are so many different options and rules for each docket that just as we can get confused, VA can get confused too. So I think we should make it as crystal clear for them as to what you’re looking to do, the better result that you’re likely to get on the other end of it. So I think that’s a really important point as well.

Well, thank you both for joining me today. For more information about your appeal options under AMA. And again, you can visit our blog at cck- law.com and check out our YouTube videos. And as always, don’t forget to check us out on social media for the latest VA updates and Veterans news.