New VA Appeals Process
On August 23, 2017, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Reform) was signed into law. The Act is aimed towards restructuring the entire VA disability appeals process in order to simplify and streamline the parts of the current appeals process that typically increase wait times. Additionally, the Act intends to provide veterans, their families, and their survivors increased choice in handling disagreements with VA’s decisions. Specifically, the new system allows veterans to choose from three different lanes when filing an appeal:
- Higher-Level Review Lane. By choosing this lane, veterans are requesting that the Regional Office (RO) issues another decision based on a higher level of review. This review is conducted by a more experienced rating specialist at the Regional Office who evaluates the veteran’s claim de novo (i.e. new look). The higher-level reviewer has the ability to overturn a previous decision based on a number of factors including a clear and unmistakable error (CUE). In this lane, veterans are not allowed to submit additional evidence in support of their claims. Instead, the RO will issue a new decision based on the same evidence of record that was available at the time of the prior decision.
- Supplemental Claim Lane. This lane allows for the submission of new and relevant evidence. Furthermore, it is the only lane in which VA has a duty to assist veterans in gathering evidence to support their claims. Importantly, veterans will maintain the same effective dates for their claims when submitting new and relevant evidence as long as the supplemental claim is submitted within one year of the RO’s initial decision. Veterans can also submit a claim with new and relevant evidence after receiving an unfavorable decision from the higher-level review process.
- Notice of Disagreement Lane (i.e. Appeal to the Board of Veterans’ Appeals). In this lane, veterans can appeal their cases directly to the Board following an unfavorable decision from the RO, or an unfavorable decision in either the higher-level review track or supplemental claim track. Here, veterans are able to skip the second level of review at the RO. There are an additional three lanes at the Board that veterans can choose from: direct docket, hearing docket, and evidence docket.
Under Appeals Reform, there will be an additional three options for veterans at the Board:
- Direct Docket. For veterans who do not want to submit additional evidence to the Board, and do not want a hearing before a Veterans Law Judge. In this docket, the Board will only look at the evidence that was in the veteran’s file when the appealed decision was issued. VA has set a 365-day goal for issuing decisions in the direct docket Board lane, which is projected to be the fastest amongst all three options.
- Hearing Docket. For veterans who want to have a hearing before a Veterans Law Judge. The only hearing options available to veterans under appeals reform include a videoconference hearing and a hearing at the Board in Washington, D.C. Travel board hearings, held by Veterans Law Judges at ROs, will only be available to veterans in the Legacy Appeals system (i.e. the old appeals system).
- Evidence Docket. For veterans who want to submit additional evidence, but do not want a hearing. In this lane, veterans can submit additional evidence to the Board with their Notice of Disagreement (NOD) and within the 90 days following their NOD.
How Does VA Define “New and Relevant” Evidence?
Under Appeals Reform, Congress changed the standard of evidence from “new and material” to “new and relevant”. Importantly, this new standard will not impose a higher evidentiary threshold than the former. In this case, VA defines “new” evidence as evidence that was not previously submitted to VA. “Relevant” evidence is evidence that tends to prove or disprove a veteran’s claim. An example of “new and relevant” evidence may include service records related to an in-service event to establish service connection.
Changes to VA’s Duty to Assist Under Appeals Reform
The new regulations limit VA’s duty to assist veterans insofar as it is only required when a veteran files an initial claim for benefits, and when a veteran files a supplemental claim with new and relevant evidence. The duty to assist no longer applies to the Board, meaning the Board will no longer be obligated to remand decisions for the purpose of developing additional evidence for the claim. However, if the Board finds that the RO made a duty to assist error, it can remand the case and instruct the RO to fix that error. Therefore, while the Board can find that the RO did not fulfill its duty to assist, the Board itself no longer has that obligation.
When Will Appeals Reform Take Effect?
Appeals Reform is currently scheduled to be completely implemented in February of 2019. One year after Appeals Reform goes into full effect, VA will stop accepting NODs for legacy claims. This will require participation in Appeals Reform in order for veterans to continue their disability appeals process. However, if Appeals Reform is not certified to be operational in February of 2019, the Rapid Appeals Modernization Program (RAMP) will extend until Appeals Reform is officially certified. Any appeal filed between now and the start of Appeals Reform will go into the Legacy appeals system, unless a veteran specifically opts in to RAMP. At this time, veterans are able to opt in to RAMP within 60 days of receiving either a Statement of the Case (SOC) or a Supplemental Statement of the Case (SSOC).
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