House passes overhaul of VA appeals process
On May 22, 2017, the U.S. House of Representatives unanimously passed a bill that would transform the appeals process for benefits claims at the Department of Veterans Affairs. The bill, if passed in the Senate and signed into law, would restructure the Veterans’ Benefits Administration (VBA) to allow veterans to choose different appeal “tracks.”
The bill is aimed at eliminating backlogs that have plagued the VA for years. In 2015, more than 427,000 appeals were pending and veterans waited over 3 years on average for a decision, according to a recent Government Accountability Office report. And, despite some progress in 2013, appeals are back to piling up, increasing at a rate of almost 20 percent per year. In fact, the report estimates that, if Congress doesn’t pass reform by 2026, vets will have to wait an average 8.5 years for a final decision.
The Veterans Appeals Improvement and Modernization Act of 2017 is not Congress’s first attempt at VA appeals reform. A nearly identical bill failed in both the House and the Senate last year. But reform is desperately needed, according to Rep. Phil Roe, Chairman of the House VA Committee, because the current appeals process has remained largely the same since its establishment in 1933.
The Act, if passed, would be effective 540 days after its signing and new appeals would start going through the new process. Unlike past VA appeals reform bills, this one would allow some veterans with currently pending appeals to opt in to the new appeals process once enacted. The bill also requires the VA to provide a detailed plan for implementing and monitoring the new appeals process while staying on top of appeals already pending in the old system.
How The New Appeals Process Would Work
The proposed appeals process streamlines the parts of the review process that tend to increase wait times. In particular, the reforms target the processes surrounding new evidence and hearings. Currently, veterans can submit new evidence at any point during their appeal, which causes an additional round of reviews and drives up wait times. And veterans can wait years just to get a hearing scheduled.
Note: The bill changes the language of new and “material” evidence to new and “relevant” evidence, but the meaning remains the same.
Under the new appeals process, appeals must be filed within one year of your denial. When denied for the first time, Veterans would choose one of the following tracks:
1. File a request for higher level review.
If you choose the higher level review track, you file your appeal with the Agency of Original Jurisdiction – usually your local VA Regional Office. You can also request a higher level review at a different Regional Office.
There, a more senior VA adjudicator performs a “de novo” review of your claims file. That is, the adjudicator looks at your file anew. In this track, however, you cannot submit new evidence. The decision will be made based on the evidence contained in your original claims file.
2. File a supplemental claim.
A supplemental claim, as defined by the bill, is a claim for benefits filed by a claimant who had previously filed a claim for the same or similar benefits. So, for example, a claim to reopen or a claim for an increased rating would be considered supplemental claims. If filed within one year of your denial, a supplemental claim effectively remains part of the original claim (thus preserving the same effective date).
If you choose this track, you would file your “supplemental claim” with the Agency of Original Jurisdiction – usually your local VA Regional Office – similar to a request for higher level review. But unlike a higher level review, you must submit new evidence.
3. File a Notice of Disagreement directly with the Board of Veterans Appeals.
Under the new system, veterans will file a Notice of Disagreement directly with the Board of Veterans Appeals after their first denial, allowing them to skip a second review at the Regional Office. This could be a critical change because, as of 2015, the average cumulative time veterans waited for a decision by the Board is almost 5 years.
Within this track, Veterans would be able to choose whether or not they want a Board hearing. The Board would have two dockets, one for veterans who do not want a hearing and one for veterans who do.
Veterans would also be allowed to submit new evidence at the Board level. The evidence the Board would review (the “record”) depends on whether you choose to have a hearing and/or submit new evidence:
- With no hearing and no new evidence, the record is limited to what was before the agency of original jurisdiction (usually your VA Regional Office).
- With a hearing, the record includes what was submitted at the hearing or within 90 days of the hearing.
- Without a hearing but with new evidence, the record includes what was submitted with the NOD or within 90 days of filing the NOD.
After the 1-year appeal period…
If you did not file an appeal of some kind within one year of your initial denial, you can reopen your claim by filing a supplemental claim (see above). However, your effective date will no longer be the original date of your claim, but will become the date VA receives your supplemental claim to reopen.
The bill refers to claims under the current appeals system as “legacy claims.” Veterans with pending legacy claims who want to opt in to the new appeals process if they receive notice of a decision on an initial claim on or after the date the Act is enacted. They can also opt in after receiving a Statement of the Case or Supplemental Statement of the case on or after the date the Act is enacted. Other than the opt in provision, the bill does not really address the veterans who have legacy claims.
Other Noteworthy Provisions
Duty to Assist
The VA’s Duty to Assist veterans (for example, their obligation to help veterans get their medical records, service records and private records) during the claims process will only apply to original claims and supplemental claims (as defined above). The duty to assist law would no longer apply to the Board or to claims filed on the Higher Level Adjudication track.
Favorable findings made by an adjudicator during the claims process would be binding on all subsequent adjudicators (within the VA system), in the absence of clear and convincing evidence to the contrary.
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