Last week, CCK took to Facebook Live to discuss the VA’s new Rapid Appeals Modernization Program (RAMP). Should you enroll? Watch to find out and to get some background on the VA’s appeals reform efforts that will go into effect around February 2019.
^We even drew a cartoon to help explain the new process.
Robert: Hello, Facebook Live. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me on my right, your left, is Jonathan Greene and Kerry Baker, also from Chisholm Chisholm & Kilpatrick. And we’re just gonna wait here a minute for people to log in to Facebook and we’ll be starting our conversation soon about what RAMP is, R.A.M.P. Thank you. I should say this is the first time we’re doing Facebook Live so if there are any technical glitches, we apologize up front. But we look forward to talking to you about the new appeals system at the VA and the current appeals system and what that might mean to your claims. And you’ll also have an opportunity to direct questions to us and we’ll answer those to the best of our ability. I can share with you that there are a lot of things about this process that are not set in stone yet but we’ll give you our best answer. Okay, let’s get started!
Robert: Hi, again. I’m Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me is Kerry Baker from Chisholm Chisholm & Kilpatrick and Jonathan Greene. And we represent disabled veterans before the VA and today we’re gonna talk about RAMP. This is the VA’s new Rapid Appeals Modernization Program, R.A.M.P., and whether or not you should enroll in that program. But I think in order to fully understand what RAMP means, it would be helpful to start with the discussion of what the current appellate system is. That is, if you get a decision, how do you appeal it? And once we cover that, we’ll jump into how RAMP changes that. So Jon, if I could ask you to talk a little bit about an overview of the current appellate system. How one appeals a decision from VA.
Jonathan: Sure, I’d be happy to. So this is the system we know and basically there’s one lane right now that exists in the veteran’s claims process. So, a veteran will file a claim. We’re just gonna take the general scenario. A veteran will file a claim. The local regional office will issue what’s called a Rating Decision, granting, denying, or partially granting, partially denying the claim and then the veteran has one year to file what’s called a Notice of Disagreement, which is an appeal. If that appeal is filed, the Notice of Disagreement, then what happens is the veteran basically waits for something called a Statement of the Case, which usually is continuing the same findings that the Rating Decision issued. After the Statement of the Case is issued, the veteran has 60 days to perfect their appeal to the VA Board. If they file what’s called a VA-9, VA Form 9, then the case is going to the Board. After certain amount of time, it gets certified to the Board. The Board issues a decision granting, denying or remanding the case for further action at which point the veteran has the option of appealing to federal court called the Court of Appeals for Veterans Claims if they are appealing a denial, otherwise they take the case back for processing at the RO in some form. It’s essentially one lane. What we have now with the Rapid Appeals Modernization Program is what is supposed to be a pilot program. Although what we’re finding is it appears to be a little bit larger than we would’ve thought of a pilot program because a lot of the options for opting into RAMP are going out to a lot of clients, a lot of veterans. And so Kerry Baker is gonna give us some of the particulars of the RAMP program.
Robert: Before we pivot to Kerry if I could just say two things. The appellate system that we’ve been operating in has to go on for what, some 40… 50 years. This has been the process the court was layered onto at 1988. Before that, this has been the one-lane process and that’s the world that we’ve all been operating in. And there’s a special term now for these appeals. These are called legacy appeals because these are the current ones. And there’s the new appeals system that we’re now gonna talk about because Congress just pass this past Fall a new process and that new process is supposed to take place beginning in February 2019. But as part of that new process VA was allowed to, in fact, instructed to I believe, to start a pilot program. And this pilot program is what RAMP is.
Jonathan: Exactly! I want to address one question quickly before Kerry discusses RAMP. Someone asked how long does VA have regular appeal to answer? What’s interesting is when I was talking about the claims process, I said the veteran has one year to file a Notice of Disagreement, they have 60 days to file the VA Form 9. I said nothing about how long VA has that’s because there is no deadline, there is no timeline that VA has to respond. They typically handle the oldest appeals first and work from there depending on the workload at the particular regional office handling the appeal. It may take anywhere from a few months to several years. So, there is no set period of time that VA has to respond to a NOD or to a VA Form 9.
Robert: And that really hasn’t changed in the new system either, although there are a couple of different options, Kerry. So, Jon talked about one lane meaning there was one path to appeal and as I understand it under RAMP and under the new appeals modernization system, there are gonna be different lanes depending on which one a veteran or a claimant chooses.
Kerry: That’s correct. And if I can add something to what you said Robert the… you know right now the legacy or the current appeals process… the claims process you said 40 to 60 years or something like that. In reality, this process has been in play probably for a hundred years since World War I and just tweaked a little bit here and there but it’s really the culmination of about a hundred years of practice in the VA. So when we’re talking about this new piece of legislation in this pilot program, it’s really a fairly significant change to something that’s been in place for a very long time. And that just makes it all the more important for more veterans out there to understand it because people have gotten so accustomed to the current claims process unless you’ve never filed a claim before. So with that, I’ll talk a little bit about the new claims process or the new appeals process as Robert said there are multiple lanes. Again, it starts as Jonathan said with filing a claim. Filing of a claim really hasn’t changed a VA’s duty and that claim for the most part has not changed. Once VA issues a decision, that’s where things start changing a little bit. I’ll just take one path at a time so to speak.
Robert: So when you say one path, you’re talking about… they’re referring to these different lanes, correct?
Kerry: These different lanes that you walk as a veteran being issued a decision will now have an option of taking rather than, formerly just following an appeal and going the single… sort of a single lane that Jonathan explained.
Robert: Before you do that Kerry if I could. On our website cck-law.com and also on the Facebook page, we have a little cartoon that sort of diagrams this out. That it’s like the RAMP onto a highway and there are different lanes and depending on what lane you go into there are different results, correct?
Kerry: Very different results potentially. So we’ll take one sort of avenue at a time because sometimes you get can mixed in with multiple avenues. We’ll try not to take it too deep in the weeds. But I’m gonna talk about the whole legislation because the pilot program really is overlaid over later with the whole thing. It’s not just a small piece of it. It’s really trying to implement the whole thing. So under the new program when you get a VA Rating Decision and you disagree with it, instead of filing a Notice of Disagreement as your only choice, now you’re gonna have a few different choices. One choice is you can ask for what’s called a higher level of review. Now that’s a kin to the older Notice of Disagreement under the legacy system. The Notice of Disagreement is still in the new system but that’s actually done under a different path. So keep that in mind. You can ask for a higher level of review, it will go to a different… a higher level of review, sort of a rating specialist within the RO, it could be at the same station that decided the claim in the first place or it could be at a new station and you have the ability to choose the new station, although I think VA isn’t bound by that. And so you’ll get another decision based on the same evidence of record, but in this process, you cannot introduce new evidence, so the new decision will basically decide the claim again to know… meaning they’ll look at it anew and you’ll get a new decision… And now I think Robert’s gonna…
Robert: So I’m just gonna just re-introduce… more people have probably joined us. This is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me is Jonathan Greene and Kerry Baker, also from Chisholm Chisholm & Kilpatrick. And we’re talking about the VA appellate system and in particular, the new RAMP process. And Kerry was going through one of the lanes and talking about a higher level review, which means that you know… we’re here, we’re in Providence, Rhode Island, we handle claims all across the country but under this higher level of review, a veteran files a claim in the Providence regional office and they get a decision. They’re not satisfied with that decision, then they ask for higher level review, that means someone either at the Providence station that’s been around longer, has more experience will re-examine that claim…
Kerry: That’s correct.
Robert:…and could make a new decision…
Kerry: That’s correct.
Robert:…either granting or denying it.
Robert: Or it could go to say… Seattle, hypothetically, and the Seattle station will make a decision with a more experienced person. And that will be the higher level review.
Kerry: That is correct.
Robert: Okay. So that’s one of the lanes.
Jonathan: Kerry, I have a quick question about the higher level review because it reminds me of what we have now and as mentioned the legacy program, where we select DRO, so Decision Review Officer review of the claim. So, who is the person? Who is the higher person that’s gonna be deciding? Do we know what their title is? Or is it a DRO, a Decision Review Officer?
Kerry: We won’t be able to answer that question with specificity until the regulations come out implementing this program. But in all reality, yes, it will be somebody that has authority to change the original decision based on the same evidence. So it will most likely… and this is my opinion only… be the same Decision Review Officers that are now deciding appeals. They will now just be issuing a higher level decision review rather than a Decision Review Officer decision. That’s most likely what’s gonna happen. So we went over Rating Decision to a higher level of review. You have one year to request that higher level of review…
Robert: Once you get the Rating Decision?
Kerry: Once you get the Rating Decision, yeah. If they… if VA still denies the case on the higher level of review, you can then choose to file a Notice of Disagreement directly with the Board of Veterans’ Appeals.
Robert: Oh so that’s interesting because before you would file a Notice of Disagreement with the regional office under the legacy appeal.
Kerry: That’s correct.
Robert: Then you get a Statement of the Case, and then you file, really a second appeal, the VA-9.
Robert: So they’ve cut that part of the process out… that second VA-9 appeal?
Kerry: That’s one way to look at it. You could look at the higher level of review as sort of replacing that process but in reality, once you get that higher level of review decision, the Notice of Disagreement then takes the appeal directly to the Board. And that’s the difference there. Now, having said that, that’s one way to get to the Board of Veterans’ Appeals. Another way is, if the same initial Rating Decision that you disagree with, you can then choose to file that Notice of Disagreement instead of the higher level of review and your decision will go directly to the Board of Veterans’ Appeals.
Robert: So this is lane two?
Kerry: This is lane two. So lane one is you can choose a higher level of review and then appeal to the Board. Lane two is you can choose directly to appeal to the Board without going through another decision at the regional office. So that’s a very significant change from the current process. And that’s sort of lane two to get to the Board of Veterans’ Appeals. There’s a third lane…
Jonathan: Kerry, before you go on to the third lane, can I just ask? So, in the higher level of review lane, that higher level person is reviewing based on the evidence of record, there’s no supplemental evidence being provided. When you go the Board, at what point can you present new evidence? Or at what point can you no longer present new evidence? ‘Cause right now you can throw new evidence in there as often as you’d like before the Board issues a decision.
Kerry: That’s a really good question. That’s somewhat a controversial issue, has been for a long time in VA. Records open. VA sort of wanted to close that record for some time. This new legislation allows them to do that. So, one really important thing that you have to know is if you choose the higher level of review, you cannot supplement the record with new evidence. When you go to the higher level of review, the record is closed. When you go to the Board, either through going to the higher level of a review first or going directly to the Board from an initial rating decision… according to the legislation, you will have a window to submit additional evidence with a requested hearing or without a requested hearing. Again, the regulations have not been written on that so how that’s gonna be implemented exactly is still somewhat of an unknown. But what we do know according to how the legislation is written, that window will be a certain period of time and so it will be a limited window to submit additional evidence. Once that window is closed, quite similar to the initial higher level of review, we’ll not be able to submit any additional evidence at that point. So that’s very important for people to know and remember.
Jonathan: Kerry, before you go on, we have a question and I think it’s a good one. And it’s important to know for the audience that we don’t have all the answers as Robert said at the beginning. We can’t always really speculate as to somehow this is gonna work. But the question is: what happens if there’s a duty to assist error discovered at the higher level review? Will the adjudicator remand the claim for additional development? Does this make it supplemental?
Kerry: It’s a really good question. So…
Robert: So let’s first talk about what the Duty to Assist is now in the legacy appeal because I think that’s a good starting point. So right now, the Duty to Assist, that is the VA has to go out and get records. Sometimes has to go get medical exams, whether they’re federal government records, or whether they’re private exams where they have to conduct an examination. That Duty to Assist attaches once a claim is filed and it stays attached all the way through until the Board makes a decision.
Kerry: That’s correct.
Robert: So that’s the legacy appeals. That’s how they handle it. Now, this is a great question because the Duty to Assist is changed. That is, the VA’s Duty to Assist has changed in the new system. So…
Kerry: It has changed in the new system to the extent that they have the same Duty to Assist more or less at the initial filing of the claim. Once that decision is made, and there are no errors as the question applies, a Duty to Assist error, they don’t have any further duty to go and get additional evidence. However, to the heart of the question, if there’s an error in the Duty to Assist, the higher level of review is required to correct that error even if it means sending the case back to the regional office that made the initial decision.
Robert: In fact, I think that’s exactly what’s gonna be required. Wherever the error is spotted, it has to go back to the regional office for them to correct the Duty to Assist error.
Kerry: That’s absolutely true. Again, my opinion and my opinion only, I suspect we will see this quite often. I said before this was a controversial point. One of the long-standing questions has always been, you close the record and there is Duty to Assist errors, how does the veteran then correct those errors to get an adequate decision? So representatives, service organizations, veterans themselves, law firms, are gonna have to know what Duty to Assist error looks like and then how to plead that kind of error so that that problem gets fixed prior to the case going further in the appellate process or needing to go further in the appellate process.
Robert: But the question asks and I think this is… I don’t know that I know the answer to this so I wanna ask you. I have a thought about it. But the question says, alright, so let’s suppose the higher level review finds the error, whether it’s the Board or higher level review, they return it to the regional office, does that change the claim to a supplemental claim or does it go back to what the appeal lane was?
Kerry: It does not change it to the supplemental claim, which is the lane we haven’t discussed yet so don’t think about at the moment. It does keep it in that same claim stream, it just requires them to go back and correct that error.
Robert: That’s my understanding as well.
Jonathan: But does it sort of still live in the higher level review lane or does it go to like that pre-lane selection phase where it will get a new decision and then you can then again say lane one, two, or three.
Kerry: As we understand it, for example, you get a decision, you choose higher level of review. The higher level reviewer sees a Duty to Assist error. Instead of deciding the case at that time, they should send the case back to the regional office, correct that error and then make a new decision.
Jonathan: The higher level review person then will make a new decision based on the evidence?
Kerry: As we understand it, the initial raters will… however, that’s one of those things that haven’t really been laid out in the regulations yet. VA, I think they probably have some wiggle room whether they choose to do it locally or choose to let the higher level of review make that second decision once the Duty to Assist error has been created.
Robert: So, in summary, they have to correct the error but we are not 100% sure who’s gonna be doing it.
Kerry: That’s correct.
Robert: Okay. But you do get a new decision.
Kerry: You do get a new decision and the important thing is at any level of review, via the higher level of review or the Board of Veterans’ Appeals, if that error is being caught, or seen, or noticed, VA has to correct that. The Board of Veterans’ Appeals has to correct it. The higher level of review has to correct it. So, really important to note.
Robert: Can I interrupt you one more time? Just to do another quick introduction. Hi, this is Robert Chisholm from Chisholm Chisholm & Kilpatrick. With me is Jonathan Greene and Kerry Baker. And we’re talking about RAMP and the appellate process and Kerry Baker is going through the different lanes that are now open. So the last lane is the supplemental claim lane. Let’s talk about what happens in that lane.
Kerry: Okay. So the supplemental claim lane is really somewhat of a new issue for all of us. In this lane, once you… let’s go back to the decision that you initially got, and now you’re deciding to go to the Board with a Notice of Disagreement, a higher level review, or your third option is supplemental claim. Now what that is essential if you obtain additional evidence, the VA is not gonna classify as “new and relevant” and we don’t need to get into that at the moment. And you want to start over but yet keep the same effective date as your original claim, the supplemental claim lane allows you to file a new claim with that new evidence and lets you keep the effective date of the original claim. Now, you can choose the supplemental claim lane after the first decision, or after the higher level of review decision, or after the Board of Veterans’ Appeals decision.
Robert: So let me ask you a question about that. So, let’s suppose I get a decision and the decision says… let’s just use a hypothetical… so, Kerry, you applied for VA benefits and you are asking for service connection for a back condition. And the VA made a decision, said, “Kerry, what you’re missing here is a medical opinion saying your back problems are due to your medical service.” So let’s take that hypothetical and say you go down the supplemental claim lane, what do you think you would have to submit in that case to win in a supplemental claim? Because you do not have enough evidence yet according to the decision.
Kerry: Okay. Right. So, first, let me back up and say if you go this route, you have a year to file in that supplemental claim lane to keep that same effective date. To answer your question, you would need to submit ideally a medical opinion linking your current back condition to your military service. So you would file a new claim, called the supplemental claim, the medical opinion would be your new and relevant evidence. You’ll get a new decision, get done within a year of the original decision. You should keep the same effective date as your first claim.
Robert: So, as long as you hypothetically submitted that medical opinion from a doctor saying your back condition is due to your service and they assigned the effective date to go back to the date of the original claim. That’s our understanding.
Kerry: As the legislation reads, that is what it should do.
Jonathan: Do we have any idea how long you have to submit additional evidence? So if you file the appeal on… or you select supplemental claim lane at day 364 from the decision, how long do you have to go out and get that medical opinion? Or is that one of the things you’re just gonna have to request “Hey, we need 60 days here!” or something like that?
Kerry: I’m not sure I understand the question. So if you get a rating decision and you’re at day 364…
Jonathan: Yeah, I’m saying you select supplemental claim lane and so you’re gonna go out and get new and material evidence. How long do you have to go and get that evidence?
Kerry: As we understand it, okay, you have a year to file a supplemental claim. Period.
Robert: I think what John is asking is, do you need the evidence in that 365 days?
Kerry: I believe you likely would, as the legislation reads. They could end up denying the supplemental claim as soon as they get, if there is no additional evidence that they can consider a newer over. So for safety purposes, it’s advised that if you go through that lane, you have that new and relevant evidence within that year.
Jonathan: Yeah, I’m just thinking of the challenges because as a representative we get these cases at any phase of the current claims process and I’m sure we’ll continue to get the phases of this new… of the appeals reform process. So, if we get something we decide late in the game, late in that year that we want the supplemental claim, it sometimes takes time to get that evidence and then the veteran is gonna be at a disadvantage because…
Kerry: No that is a very good question, a very good point. Unfortunately, I think the best answer is we really don’t know how that’s gonna work yet. One would think and there’s nothing prohibiting this in the legislation, that if you indicate it at the VA you’re gonna file that supplemental claim, or there’s no intent to file, you file yourself a supplemental claim and tell them within that claim, in a month I’m gonna get you my new and relevant evidence. They should allow you to do that. Whether that’s gonna play out like that, honestly Jonathan, I don’t think anybody knows just yet.
Robert: So we’ve got a good question from Eric. Can the BVA appeal combine a DRO appeal? Let’s talk about that first of all in the current process where we call the legacy appeals. Once the Decision Review Officer makes a decision in the current system, clearly that case can then be appealed to the Board of Veterans’ Appeals. But there really isn’t a DRO process in the new process, that is the new appellate process, it’s really the higher level review which we’re thinking is kind of like the DRO appeal, right?
Robert: If someone, as you say early on, gets a higher level review and it’s denied, then they can go to the Board, correct?
Kerry: They can, they can go to the Board from a higher level review decision, an initial rating decision or even, we haven’t gotten to this from a supplemental claim issue, if they get a decision from a supplemental claim. Even that one they can go to a higher level review then the Board or straight to the Board. So, there’s a lot of little lanes here that are coming into play.
Jonathan: So the good news is with the lane selection, you are not forever stuck in that lane, and that is the only option. So, if you select a higher level review, the higher level person is going to issue a decision, then you can go back and select the other lanes including Board appeal.
Kerry: That is correct. And I don’t know that Eric if you’re asking the kind of question of whether the Board can combine a DRO appeal and a higher level of review appeal at the same time. Under the RAMP program…
Robert: Let’s pivot to that because I think this is really important. Well, we’ve now done. Again this is Robert Chisholm from Chisholm Chisholm & Kilpatrick and we’re talking about RAMP with Jonathan Greene and Kerry Baker. And we’ve now discussed the three different lanes under this new modern appeals system, this process. But now, let’s talk about RAMP, which is the pilot program because a lot of veterans are getting letters to potentially offer them, I should say scratch that, that offers them the opportunity to jump into RAMP. So, let’s talk about what that means now because not every lane is open under this RAMP program. So, first, Jon what’s RAMP again, if you don’t mind.
Jonathan: So RAMP stands for the Rapid Appeals Modernization Program. It is a pilot program allowing veterans now, before the Veteran Appeals Improvement and Modernization Act goes into effect, and it’s not going to go into effect by the way until fully going to effect in February 2019, at the earliest. From then until VA is actually ready to implement it. So, right now what they’re doing is issuing a pilot program, which I think started with 500 people got these opt-in letters, and the opt-in letter explains that there’s something called RAMP, Rapid Appeals Modernization Program, allowing certain veterans with, that meet certain criteria to opt-in to two of the three lanes that Kerry’s been discussing, and the one lane that is essentially closed off or parked or on hold until appeals reform comes into full effect is the BVA appeal route. So right now we have supplemental claim route available under RAMP and the higher level review route, both those are open.
Robert: Kerry as a practical matter, can someone go into this pilot program called RAMP and get to the Board?
Kerry: Not as a practical matter until after February 2019.**
Robert: And we don’t know how soon after February 2019 those cases will actually reach the Board.
Kerry: That’s correct. Implementation of this entire program requires VA to show Congress that they are really prepared in lots of different ways that we don’t need to discuss. Whether that’s going to happen by February 2019 or not, I don’t think anybody knows yet. But it cannot happen sooner than February 2019.
Robert: There’s also one other important aspect of the pilot program called RAMP. That is if you’re currently in the legacy appeals system and you receive a RAMP letter and you decide to opt-in to either legacy, I’m sorry, either the supplemental claim lane or the higher level review and you’re denied, you can’t go back to legacy appeals as I understand it.
Kerry: That is absolutely right. You cannot go back into the old system. Now, to Eric’s question. I don’t know whether he was asking whether you can partially get in to the new system, do you have more than one issue, do you have five, six different issues and one appeal. Can you take some of them and put into the RAMP program and leave some of them out of the RAMP program? Our understanding is that you’re either in the RAMP or not in the RAMP.
Jonathan: Yeah, that’s a good point. So the RAMP letter, I have the language in front of me. It’s vague in that veterans that we currently represent can have claimed at all different phases of the claims process. So they can have multiple claims pending at different phases. The RAMP letter just says you can opt in or out. And so, the way it’s worded it appears that a veteran with 25 different claims in all phases of the claims process, all of those claims then get sort of lumped in together into RAMP, into one of the two available lanes. So, practically speaking I don’t know how it would work if that’s actually what happens but that’s certainly the way it reads to me, these opt-in letters that we’re seeing.
Kerry: Another important point to make about the various lanes, if in you’re RAMP or hypothetically when the legislation goes into full effect, if you have ten different issues with one claim what it does allow you to do is you want to appeal three or four of those issues directly to the Board come in and file a supplemental claim on two or three of those issues and ask for higher level of review on another two or three of those issues, you can literally do all of those at once. Whether that’s advisable or not, it’s too early to tell right now.
Robert: So, I think one of the challenges that we’re having is our clients are getting these letters. And the letters, if you do nothing, you don’t respond to the letter, you stay in the current, what we call legacy appeals now. If you opt-in, you’re in and you can’t get out. That is if you get a supplemental claim decision that’s denied, you have to– you can file the Notice of Disagreement but you’re not going to get to the Board until at least February 2019. If you opt-in and you go higher level of review and that is denied. Again, you’re stopped from going forward on your claim past the Notice of Disagreement until at least February 2019. So, we’ve made a decision as a firm for our clients to say, “Don’t do anything. Don’t opt-in.” And the reason is because you can’t get to the Board, if you’re stopped and you lose at the higher level of review or the supplemental claim lane, right?
Kerry: That’s correct. I think another good point to make on that is we’ve heard various things about whose getting these letters, those with the oldest appeals, maybe it’s a mix of a few. We really don’t know. But if you are, again, my opinion, I think Robert shares this as well as Jonathan. If you are one of those veterans who has an old appeal in the legacy system, you are kind of coming out next- I would say say next on the list, for layman’s terms, especially if you’re on the way to the Board so you’re on a remand from the Boards of Veterans’ Appeals and your case is going back to the Board of Veterans’ Appeals. And, if you’re waiting on them to make a decision and you opt-in to this new program if you get one of these letters, then the very next decision you would have gotten likely under the old program was a Board decision, you opt-in here, you’re not getting that Board decision, as we understand it. Would you agree with that Robert?
Robert: Yes. That’s exactly how I understand it and for that reason, we would recommend not opting in at this point. There just isn’t enough information, the limited information we have would indicate that you won’t get to the Board for a long time, it’s a practical matter.
Jonathan: Another sort of unknown thing is we use the Veterans Benefits Management System to see where our cases are at, to see what documents have been provided, and that seems to follow end products based on the current legacy appeals system.
Robert: Let me just stop you right there. You used the fancy word VBMS, Veterans Benefits Management System, so as a representative of veterans we have access to see our clients claims in real time online with the VA, is that correct?
Jonathan: Exactly. So, we have obtained access to see where our clients’ cases are at, access to their electronic file, and what you can see in VBMS is when a case has been flagged or flashed for certain actions to take place on an expedited basis or other types of things like that. I haven’t seen and we haven’t heard from folks that we’ve talked to at VA and at the regional offices what, how these things are going to be flagged when they go into the lanes that are open under RAMP. And so, that’s just another unknown is how is VBMS going to work to handle a different claims process. How are our clients – how are we going to be able to identify where our clients’ cases are at because unfortunately, our experience under the current claims process is our clients don’t always know where they’re at. It’s a confusing process and this is going to add it, add multiple lanes it’s going to be slightly more complicated. And we’re gonna be relying on tools like the VBMS to tell us where things are, and right now, there’s nothing to indicate that that’s even been worked out. I don’t know what your experience too Kerry or Robert but to me, I haven’t heard anything about how it will work.
Kerry: It’s a good point. You know some discussions that I’ve had with some VA employees out in the field, and obviously this is heresy, I don’t know this for sure, but they really not have been provided much direction on this yet.
Robert: And I should point out Kerry that before you came to work for Chisholm Chisholm & Kilpatrick, you working internally on the VA system for the VA. One of the things you focused on attention on was claims processing, that is how VA handles certain actions so you sort of have an inside baseball knowledge to use the term, but inside VA knowledge about how they actually process claims.
Kerry: A little bit. And so, some things I do see red flags as far as the implementation of this. Is it going too fast? Is the field prepared for it? Are there computer systems as Jonathan mentioned, prepared for it? From what we’re seeing on the surface, it doesn’t appear to be now at the same time, I understand that these are, the RAMP claims are going to be done only at the Appeals Management Office which you may know of as the Appeals Management Center which is basically the large VA office in Washington, DC. Obviously, at some point, it’s going to expand beyond their limit. That one single office can’t handle a hundred thousand different appeals.
Robert: So one thing I did want to comment on, and John hit on this a little bit. We understood that these letters that veterans are receiving, including some of them are a client. They initially sent out a few hundreds of these. It’s our understanding that the beginning of this month they are they are going to keep sending out more letters. So, on January 1st, they are going to send out a few thousand and that number is gonna increase each month. So, a lot of veterans will start receiving these letters and it’s really important for them to make the best decision possible about whether they want to opt-in or whether they want to remain in legacy appeals. So, we have a question from Brandy and Brandy asks, to Jonathan’s early comment regarding changing lanes. Do we think claimants will have to wait for a decision in the current lane, before changing lanes? So, I think the answer is yes. That is if you are in a supplemental claim lane, you have to wait until you get a decision before you change to a different lane. That’s my best guess.
Jonathan: And it was followed up with sort of what we see as a problem is, as we indicated earlier, you start representing clients in all phases of the claims process, and that is going to be the case certainly under appeals reform. So if, Brandy asks if the veteran selects higher level review and then changes representatives and the representative determines that the best course of action is the supplemental claim lane, can the veteran then opt to change lanes? And as Robert just indicated, we think you got to see through the lane and then get that decision from the higher level review before then opting for the supplemental claim lane. So, once you select something whether you did that under the advisement of your representative or not, I think that you need to see it through to a decision and then kind of select if you’re going to switch lanes or appeal to the Board.
Robert: Can I have one other thing? Because one of the things that a veteran receives or a claimant receives with the RAMP letter, the opt-in letter is a fact sheet. They have some goals in mind, that is they have timelines by which they want to complete these decisions. So their goal is, to grant, if you opt-in to RAMP and choose the supplemental claim lane, their goal is to complete that in 125 days and they also say for higher level review 125 days. I’m a little skeptical about that, to be honest with you. But let’s say they do do that. That could be appealing to some that are waiting for years, two to three years for a decision. The problem is, is if you get a decision at supplemental claim lane or higher level review is then you’re stuck because you can’t get to the Board until a least February 2019 and I would say it’s going to be way past that date as a practical matter. Does that make sense? That’s what I’m thinking about it when I read those goals.
Kerry: It makes perfect sense, that’s basically the same timeline they currently have on deciding claims in the legacy systems. So as far as that goes, I don’t really see anything has changed. The problem here and the reason for this legislation is not how long it takes to issue a decision. That used to take a couple of years, that’s improved significantly prior to implementation of this piece of legislation. So, I think that particular target speaks to a goal that the legislation is not meant to fix.
Robert: I agree, so if I could just do another introduction here. Hi, this is Robert Chisolm from Chisholm Chisholm & Kilpatrick, with me is Jonathan Greene, and Kerry Baker also from Chisholm Chisholm & Kilpatrick. And we have been talking about RAMP, we’ve been talking about appeals management, the new appellate process, and in particular, we are talking about veterans who are receiving RAMP letters, Rapid Appeals Modernization Program letters, and whether they should opt-in to this program or not. So we’ve been talking for about forty minutes. So if you have questions about this, we’ll be happy to answer more questions. Otherwise, we are going to talk for another five minutes or so. If you have questions, ask us now. We will do our best to answer your questions. There are a lot of things we don’t know, and we are giving you our best understanding but what I can say is I’m deeply troubled for veterans opting in to this process and not being able to get to the Board of Veterans’ Appeals with their decision, that’s my main takeaway from this.
Jonathan: Because as you said, Robert, you select a lane, one of the two available lanes. Say you do, they stick to this timeline of 125 days, you get a decision in March and then you want to go to the Board which that lane is closed, you’re gonna be parked, for at least a year. Where not only, you know Kerry had indicated that some of the wait time is probably gonna remain the same, but the answer you’re always gonna be, that is going to be a frustrating one when you inquire about the status of the case is that just lane’s closed, that lane’s closed, that lane’s closed and that’s gonna be frustrating for the disabled veterans seeking benefits but also for the representative who is sitting around and waiting for that lane to open up.
Kerry: If I could kind of get back to Brandy, or one part of Brandy’s question earlier, she asked, I think, part two of her question was about whether her representative, she changed representatives in the course of the case and they suggest a supplemental claim lane. We had addressed whether you can switch lanes at any point. If I could clarify and only with regard to the supplemental claim. The supplemental claim, if you have a current, under the RAMP program at least, and I’ll assume that when the legislation goes into full effect, you can always withdraw your claim to file a supplemental claim, is that under the RAMP program, it requires you to withdraw that pending claim regardless of what stage it is at and opt-in. If you do that with the supplemental claim, that could be the way to go in certain circumstances once the new process starts as a whole. Keep in mind though, under the current system, you don’t need to file a supplemental claim to introduce new evidence. So, if the goal is to get new evidence, you can do that on the current system. Once this process goes into place and you choose to do a supplemental claim instead of one of the other lanes, one of the unknowns that we don’t really know how it’s gonna play out yet, is how VA is going to look at what is new and relevant evidence. We talked about medical nexus earlier in a sort of an example. A lot of you right now have been denied both times for the same condition, you probably have seen the language about that you haven’t submitted new and material evidence to re-open a claim. In reality, the new and relevant evidence replaces new and material evidence but doesn’t change the level of proof, in our opinion, compared to new and material. So, the question is are you going to start getting a bunch of denials based on failure to submit new and relevant evidence when you go down the supplemental claim lane? Personally, my opinion, I see that as a possibility, but we really don’t know that yet.
Jonathan: Kerry we have a question from Alana. Can you provide a situation where a veteran should opt-in to RAMP? As what we indicated, we are as a firm, we’re advising clients not to opt-in to RAMP at this time. So, as far as, I think what we have expressed a lot is that there are a lot of unknowns and we don’t know how RAMP is going to work. We don’t know exactly how appeals reform are going to work once that third lane opens up. Can you guys think of a scenario where you say okay, in this limited scenario we would ask folks to opt-in RAMP?
Robert: This is going to be a little vague of an answer, but I’ll give it my best shot because it seems to be that I might take a stab at a higher level review on the following circumstances. Let’s say it’s service connection for post-traumatic stress disorder and let’s say I have a diagnosis from my VA doctor that says I have PTSD because of this particular stressor in service and let’s say that VA denied the claim because there was no evidence that the stressor event actually occurring. But now, I have service records that prove the stressor event actually occurred. So, I have all the evidence I need. Under that scenario, I might consider higher level review, because you’re going to get a more sophisticated rating specialist, like a DRO that can see all the pieces lining up. The problem with that is okay, so now I get service connection but am I sure that the person that does the higher level review is going to give me a) give me the right effective date and b) assign the right rating. That’s the problem and then you’re stuck if you need to appeal that decision. Say they gave you a 30% rating but they assigned, you think you’re entitled to a 70% rating or you are entitled to an effective date earlier than that which was assigned. Then you’re going to want to appeal to the Board, then you’re stuck.
Jonathan: And as Robert indicated or so, these things are not simply a grant or denial and that’s the end of the story. Under the current process, we often have cases where we’re trying to establish that something should be service-connected, a disability should be service-connected, meaning somehow related to service and then you get a rating and an effective date. Oftentimes, there continues to be a dispute about the appropriate rating. So VA will say yes, this disability is service connected but we’re going to assign you a non-compensable zero percent rating, and then we appeal that finding. So, Robert is saying you might get a favorable decision from that higher level review individual, but then you’re still going to disagree with the rating and you’re still stuck in RAMP without the ability to go to the Board.
Robert: And one of the things that’s annoyed me, as long as I’ve been practicing it’s been over 25 years is when you get a decision that this is a complete grant of benefits and the reality is that it is not a complete grant of benefits because they assigned the wrong effective rate or the wrong rating. So…
Kerry: If I could add something to what you guys just said about certain, your example that you just gave was service records. If you should get into RAMP and you’re thinking supplemental claims lane, with respect to Robert’s example. You need to make sure if you’re going to submit service records or that what you’re what you’re doing and what you’re giving VA is not already in that claim file. Because if you opt in to RAMP and decide to say go down the supplemental claim lane, and what you’re submitting is already there, then it’s not gonna work for you. And I say that because I see a lot of people unrepresented, sometimes represented, who’ve had claims going on, they will get a copy of their record from somewhere and they will submit that back to VA thinking that now they’ve got the evidence when in fact the VA had that evidence in the first place. So don’t fall into that trap, so just be cautious.
Jonathan: The bottom line is Alana, you have some licensed practitioners here, we’re having a hard time finding a situation where we would advise folks or clients to opt in at this time.
Kerry: And on that note, when this law is going to go into effect at some point after February 2019, and any claim you file after that point is going to be in this system. So everyone is going to end up in this system at some place, at some time. So whether you should hurry to get there, I’m just not sure that you should be.
Robert: So I don’t think we’ve had any question for a few minutes now. So, at this point, I’d like to do a quick wrap up, final thoughts on RAMP and I’ll do a quick conclusion. Kerry, any final thoughts that you have?
Kerry: I would say on RAMP, if you seek some advice before you choose to get into the program if you have an appeal with them right now. That’s my best advice is seek some advice, don’t make a hasty decision because it sounds like you’ll get a better decision or a faster decision.
Robert: Jon any final thoughts?
Jonathan: I definitely agree with what Kerry offered and would just say as we said at the beginning, this program seems to be more than just a pilot program. They’re sending out a lot of these letters, in the thousands, and we don’t have really clean answers from VA as to how these are going to handle. So that in addition to a number of the other unknowns that we expressed is why we advise folks not to opt-in.
Robert: Jon and Kerry, I would like to thank you both for joining us today. This is Robert Chisholm Chisholm & Kilpatrick with Jonathan Greene and Kerry Baker. This is an evolving thing, RAMP and the Appeals Modernization Program, please continue to follow us on our Facebook page and CCK-law.com. We continue to blog about this as we learn new things and will be doing more Facebook live in the future as well. But please reach us to us on Facebook or our website if you have any follow up questions. Thank you very much.
**The Board of Veterans’ Appeals lane is now scheduled to open in October 2018.