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Veterans Law

Legacy & AMA Appeals: Update from the Veterans Benefits Administration

November 14, 2020

The National Organization of Veterans’ Advocates (NOVA) Fall 2020 conference, held virtually October 21-23rd due to the Covid-19 pandemic, featured three days of presentations on best practices for representing veterans in their VA disability benefits claims and appeals.  On Day 3 of the conference, CCK’s Robert Chisholm moderated a panel including featuring Chairman of the Board of Veterans’ Appeals, Cheryl Mason, and Acting Executive Director of VA Office of Administrative Review.  The presentation and discussion focused largely on changes being made by the Office of Administrative Review.

Board of Veterans Appeals (BVA) Data Update

During the conference, a variety of data was reviewed and analyzed.  This data included statistics on appeals in both the Legacy and AMA systems, as well as provided helpful insight into what changes are working and which issues still need to be addressed.  Since the implementation of the Appeals Modernization Act in February of 2019, the number of appeals in the Legacy system inventory has decreased by 56 percent.

Additionally, as of July 4, 2020, VA Form-9s and Notices of Disagreement (NODs) have been effectively eliminated.  Those that are still awaiting processing have either just recently been discovered or were impacted by the COVID-19 pandemic.  Form-9s experienced an 89 percent reduction during Fiscal Year (FY) 2020, while Notices of Disagreement were reduced by 97 percent.

Further, 91 percent of NODs and 80 percent of Form-9s were impacted by COVID-19.  The amount of remands the Veterans Benefits Administration (VBA) received from the Board has also decreased.  In FY 2020, VBA received 45,517 remands, or approximately 4,000 remands per month.  Of that number, 42,670 remands remain at the end of the Fiscal Year; however, 61 percent of these remands are currently delayed due to the nationwide effect of the COVID-19 pandemic.

VBA also processed a large number of appeals filed under the Appeals Modernization Act during the 2020 Fiscal Year.  Out of the 265,048 Supplemental Claims received, VBA has completed 236,809 of them.  Similarly, VBA has processes and completed 60,009 of the 85,429 Higher-Level Reviews it received.  VBA set a goal of 125 days to complete each of these appeal types but was able to complete Higher-Level Reviews in an average of 94 days and Supplemental Claims in an average of 77 days.  In addition, it took an average of 27 days to issue grants, 92 days to fulfill the Duty to Assist, and 96 days to issue remands.

From FY 2019 to FY 2020 the number of veterans who filed initial Supplemental Claims stayed virtually the same, going from 71.7 percent in 2019 to 71.6 in 2020.  Initial filings of Higher-Level Reviews rose from 14 percent to 18.2 percent, while appeals to the Board fell from 14.4 percent to 10.2 percent.  Among the AMA claims that were refiled based on review requests, however, the numbers shifted more dramatically.

Refiled appeals requesting Supplemental Claims fell from 19.1 percent in FY 2019 to 15.2 percent in FY 2020, while appeals to the Board saw a decrease from 46.4 percent to 35 percent.  Interestingly, the number refiled of appeals requesting a Higher-Level Review rose from 40.2 percent in 2019 to 49.9 percent in 2020.  In the Higher-Level Review lane, 16.1 percent of claim-based appeals and 9.2 percent of issue-based appeals were granted during FY 2020 (through 9/30/2020).

As for the Supplemental Claim lane, 43.6 percent of claim-based appeals and 32.4 percent of issue-based appeals were granted during that same period.  There are 28,846 Higher-Level Review appeals pending review as of 9/30/2020, and 59,184 Supplemental claims yet to be processed.  Furthermore, there are 425 grants, 7,215 Duty to Assist claims, and 3,068 remands still in the AMA inventory.

Quality Program for the Veterans Appeals Process

The decision review process for Veterans with pending disability appeals is being continually developed in an effort to simplify and improve the process.  The Office of Administrative Review (OAR) is responsible for facilitating these changes, as well as overseeing a comprehensive quality assurance reporting program known as the Quality Program.  One of the main duties of the OAR is to assess decision accuracy within the Decision Review Operations Centers (DROCs) at the national level to ensure that Veterans are receiving fair, quality decisions.

On a monthly basis, the Office discusses national accuracy with Decision Review Operations Center quality review personnel to identify error trends, offer remedies to claim adjudicators, and improve overall quality.  For example, decision accuracy for higher-level reviews is at 97.7 percent as of September 2020, surpassing the 2020 fiscal year goal of 96 percent accuracy.

Additionally, OAR implemented an email program, called VSignals surveys, that sends surveys to claimants both after VA receives their higher-level review or supplemental claim and when their higher-level review or supplemental claim is completed.  These surveys allow the Office of Administrative Review to gain valuable insight into the customer experience with the filing and decision review processes.

Veterans Benefits Administration Feedback Loop

The Office of Administrative Review is also taking steps to reduce the number of duty-to-assist (DTA) errors within the appeals process.  The Office began by working with VA stakeholders to determine the primary causes of these errors and develop solutions.  They found that the largest cause of error is VA’s failure to collect sufficient examination results and medical opinions to support its decisions.  This led to the creation of the DTA Feedback Loop Integrated Project Team (DTA stands for Duty to Assist).  In addition to identifying failures of VA’s duty to assist and discussing solutions, this team tracks the 7-year Congressional Mandated Reporting requirements for the Appeals Modernization Act (AMA).

Since its creation, the Feedback Loop has led to a number of improvements.  The Veterans Benefit Management System has been upgraded, allowing for enhanced deferral tracking by identifying avoidable deferrals versus those that are unavoidable. Further, it has increased the consistency of musculoskeletal examinations and improved the way lay evidence is interpreted through mandated employee trainings.  Some upcoming initiatives that the OAR hopes to implement include:

  • Developing and releasing additional trainings to include Gulf War exams, and requesting medical exams and opinions
  • Continuing to improve IT systems to include updating routing of clarification requests and tools that aid claims processors with correct development of a claim
  • Increasing collaboration efforts with VA stakeholders to track the primary causes of DTA errors with the intent of identifying and implementing solutions to reduce rework

Redesigned VA Forms to Improve Veteran Experience

Another important improvement the Office of Administrative Review has announced is the creation of an online submission platform on VA’s website.  They are currently working to develop this platform to make it simpler for Veterans to submit AMA requests.  As part of this improvement, they are also redesigning certain AMA forms based on feedback from NOVA members, VSOs, VA Employees, and the Veteran community.  The following forms are being updated to make them more efficient and easier to navigate:

Additional changes include adding examples to the Specific Issues section to assist claimants; streamlining the Signature section of Form 20-0996; updating the Informal Conference section to include fields for representative name and phone number; and clarifying that claimants may choose any available review option on Form 20-0998, and no certain options must be chosen first.

Appeal Intake Initiatives and Opt-Ins under the Appeals Modernization Act

Changes are also underway to streamline and simplify the intake process for appeals filed under the Appeals Modernization Act.  In response to stakeholder feedback, OAR is evaluating the training needs of all VBA intake personnel in order to reduce the amount of errors that occur during the processing of appeals.  To further improve the intake process for decision review requests, they are analyzing all AMA forms for ease of use and readability.  The Office is also building a marketing campaign as part of an effort to make veterans with Legacy appeals aware of their option to “opt-in” to the modernized system under AMA.

Currently, claimants in the Legacy system have 60 days from the date on their Statement of the Case (SOC) or their Supplemental Statement of the Case (SSOC) to switch their appeal to AMA.  In order to promote these opt-ins and facilitate faster claim resolutions, OAR is:

  • Updating VA Form 20-0996 to separate SOC/SSOC opt-ins into their own section;
  • Developing mandatory trainings to address AMA intake errors, with a focus on SOC/SSOC opt-in issues; and
  • Creating a separate mail queue for these opt-ins to assist processors and ensure faster processing.