9 Myths About the VA Appeals Modernization Act
CCK Law: Our Vital Role in Veterans Law
In February 2019, VA officially implemented the Appeals Modernization Act (AMA). The new appeals system revamped the entire VA disability claims process in order to provide veterans, their families, and their survivors with increased choice in handling disagreements with VA’s decisions. In this Facebook Live, CCK goes through some of the most important misimpressions with the new system based on our own experiences and through talking with others in the veterans law field.
1. VA Effective Dates from Legacy Claims to Supplemental Claims
An effective date is the date that a benefit became effective and is used by VA as a start date for the payment of disability benefits for a claim. The effective date of a claim impacts the amount of retroactive benefits a veteran will receive. Many veterans are currently under the impression that they can file a supplemental claim after having a legacy case and still maintain their effective dates. However, if you receive a Legacy Board decision, filing a supplemental claim will not preserve your effective date. If you have a legacy case and want to maintain the effective date after a Board decision, you must appeal to the Court of Appeals for Veterans Claims (CAVC). On the other hand, if you receive an AMA Board decision, then you have the option to file a supplemental claim and preserve your effective date as long as it is filed within one year. Overall, VA has been inconsistent in how it has applied this aspect of the law.
2. Submitting Evidence Under AMA
The process of submitting evidence under AMA is very different from that of the legacy system in which you could submit evidence at any point before a decision from the Board. There are many misnomers regarding the time periods in which veterans can submit additional evidence to VA; however, the rules depend upon which review option you select:
- Higher-Level Review – cannot submit additional evidence, only argument
- Supplemental Claim – can submit evidence if it is new and relevant (see below)
- Notice of Disagreement – can submit evidence in the hearing and evidence dockets, cannot submit evidence in the direct docket
This is important because VA will not consider evidence that is submitted during a time period when it is not allowed.
3. Standard of Evidence: New and Material vs. New and Relevant
Under AMA, VA implemented a new standard of evidence: new and relevant. This standard is supposed to reflect a lower evidentiary threshold than the “new and material” standard that was used in the legacy appeals system. When filing a supplemental claim, you must submit or point VA to new and relevant evidence. From there, you have up until the time VA issues a decision on the claim to submit additional evidence. Here, “new” means that the evidence must not have been of record at the time VA was previously reviewing the claim, and “relevant” tends to prove or disprove an issue related to the veteran’s claim.
The problem with the new standard is VA has been applying it inconsistently in adjudicating claims and appeals. There have been decisions where VA is still referring to new and material evidence, thereby using the old standard, or adjudicating it in a way that suggests it is a higher standard than the previous one.
4. VA Forms Under AMA
In recent years, VA has become very focused on forms and insistent that veterans and claimants fill out the correct forms otherwise it won’t address your claim. In the new system, VA created all new forms for the different review options. However, the Regional Offices have been inconsistent with what forms they are accepting for different issues. For example, in the legacy system, you can file an increased rating claim at any point without having to provide new and material evidence.
Under AMA, if you wanted to file again for an increased rating after the previous appeal period expired, VA has been unclear in whether you need to file a supplemental claim or a Form 21-526 (initial claim). The Regional Offices have accepted both, reflecting an inconsistency in both adjudication and accepting forms.
5. VA Procedure Has Changed, VA Law Has Not
Many veterans believe that AMA has changed VA law; however, this is not the case. The implementation of AMA has changed the way that VA claims are processed but not the underlying law that governs veterans benefits. In other words, the substance of the law remains the same and it is just the procedural process and different review options that veterans now have to decide how they want VA to review their pending appeals.
6. TDIU Under AMA
Total disability based on individual unemployability (TDIU) can be raised as part and parcel of any associated increased rating claim; however, VA has not necessarily been treating that as part of substantive law. Instead, it has been separating out these issues procedurally. This is not in line with how VA is supposed to handle TDIU claims and veterans should monitor it closely. If VA does separate out TDIU from increased rating claims, veterans can respond arguing against it.
7. Decision Times Under AMA: Is AMA Faster?
There are many misconceptions circulating regarding the differences in wait times for decisions under the legacy and AMA systems. CCK has found that decision times tend to depend on whether your appeal is at the Board or still pending at the Regional Office. If you are in the legacy system and your appeal is at the Regional Office, you will likely wait longer to receive a decision as opposed to being in the new system.
Under AMA, adjudicators have been issuing decisions quicker at the Regional Office; however, it is different at the Board level. Specifically, the Board is still prioritizing legacy appeals meaning they are working through them first in order to reduce the legacy appeals inventory. This is reflected in the fact that VA dispatched over 95,000 decisions in Fiscal Year 2019 and held over 22,000 hearings during the same time period. In the new appeals system, the Board is prioritizing the direct docket first, evidence docket second, and hearing docket last. Therefore, the docket you select will also play a role in how long you wait for a decision from the Board.
8. Should Veterans Request a Hearing with the Board?
The hearing docket gives veterans the opportunity to present their case to a Veterans Law Judge either in person or via video conference. However, because the Board is prioritizing AMA hearing cases last, you are likely going to have to wait years before your hearing even takes place. The Board has a big backlog of hearing cases in the legacy system and they have to get through that first before scheduling hearings under AMA. As such, veterans will likely be waiting for AMA hearings for the next three to five years, causing a significant delay in the decision-making process.
9. Favorable Findings in VA Claims
The new decision format that VA has come out with as part of AMA involves an updated decision notice in which VA is supposed to identify any favorable findings. For example, if a veteran is claiming service connection for post traumatic stress disorder and VA recognizes their stressor, it should be noted as a favorable finding in the Rating Decision. Importantly, VA adjudicators are bound by favorable findings and can only rebut them with clear and unmistakable evidence. However, VA has been inconsistent with favorable findings insofar as adjudicators are not always listing them on the decisions. It is important for veterans and advocates to hold VA responsible for favorable findings in the decision so that such findings are applied to future decisions.
Is AMA Better Than the Legacy System?
In regards to which appeals system is more beneficial to veterans, it is important to note that not one size fits all. Instead, it is very dependent on the facts and history of each veteran’s case and where their appeals are already pending. Generally, if you need additional evidence, AMA is going to be the better option as it allows you to continue to add evidence even after you are denied. Furthermore, AMA typically points you in the right direction by identifying the key piece of evidence that you need to submit.
Ultimately, veterans should consult with veterans service organizations, VA accredited attorneys, or VA accredited agents in order to talk through what makes the most sense for their particular case.
