Our team discussed the Board of Veterans’ Appeals and how veterans can navigate some of the complexities of the VA appeals process at the Board.
Brad: Good afternoon. This is Brad Hennings here at Chisholm Chisholm & Kilpatrick and we’re here today to talk a little bit about the Board of Veterans’ Appeals and claims at the Board. Joining me is Rachel Foster and Mike Lostritto, both of which practice at the VA and before the Board of Veterans’ Appeals. Please check us out. Again, this is Chisholm Chisholm & Kilpatrick. You can check us out on our website cck-law.com or obviously on our Facebook site. Please feel free to add any questions, ask any questions and we’ll do our best to respond either during this session or after the session itself. So, let’s start. What is the Board of Veterans’ Appeals and where does it come in in the VA claims process?
Rachel: Sure. So, the Board is the next step in the appeals process after the Regional Office. Once the veteran files his Notice of Disagreement the Regional Office issues a Statement of the Case and they file their VA Form 9. In some circumstances, they will issue also a Supplemental Statement of the Case but essentially what happens next is the file gets certified and the Board takes a look, and they make a ‘de novo’ or a new decision based on the evidence of record.
Brad: So, just to explain a little bit about who works at the Board, I formerly worked at the Board of Veterans’ Appeals as a Board member, a Veterans Law Judge as well as a staff counsel, and with their office of quality review. So, I’m very familiar with how the Board operates. The Board is composed of attorneys and Veterans Law Judges or Board members that are there deciding these claims. The judges, the Veterans Law Judges, there’s a question on here about whether they’re real judges and this is a bone of contention between many different players in the veterans law world. But we won’t get into that, we will refer to them as their statutory term which are Board members. Ultimately they’re the ones who are making the final decision on behalf of the VA in these claims. They’re appointed by the Secretary of Veterans Affairs after a lengthy interview process and they’re actually approved by the President of the United States. So, the White House personnel office does get involved in this but they are not confirmed by the US Senate. So, these are not like what they call Article 3 judges under the Constitution. The Chairman of the Board currently is Cheryl Mason and she was appointed in late 2017 by President Trump and is there for a term of six years. Prior to her appointment, the Board was without a chairman for nearly seven years. So, that is excellent news that we finally have a chairman appointed. With that, how do veterans get their case to the Board, Mike?
Mike: Thanks, Brad. As Rachel was speaking to a moment ago really the initial step in moving the case from the Regional Office level to the Board is the filing of the substantive appeal which is known as a VA Form 9. As Rachel alluded to a moment ago, a veteran must file the VA Form 9 within 60 days of the issuance of a SOC or within the one-year of the issuance of the rating decision. At the time the veteran submits his or her VA 9, the veteran is allowed to do one of a number of different things. They’re allowed to certainly submit new or additional evidence that they feel would help substantiate their claim. They’re further allowed to submit any legal argument that they would like with the VA 9, and they’re also allowed to choose from one of three different potential Board hearing requests. So, really filing the VA 9 is kind of the initial point at which the veteran gets the ball rolling on going to the Board. Once the veteran has filed his or her VA Form 9, the next step will be the veteran will receive in the mail a letter from the Department of Veterans Affairs certifying their appeal to the Board. At that point, the veterans appeal will be placed on the Board’s docket according to the date that the VA 9 was submitted. As I was alluding to before there are a number of different hearings that the veteran can potentially, it’s optional, they don’t have to, select when filling out their VA Form 9, and just to briefly go through those. They’re allowed to select from either a video conference hearing, an in-person hearing which is held in Washington DC, or third they can do what’s called a travel Board hearing, and those are the three options. Again, they’re optional but the veteran is allowed to choose from those options when they’re submitting the Form 9.
Brad: Great. Well, so Rachel are there advantages or disadvantages to having a Board hearing?
Rachel: One of the disadvantages in requesting a hearing can be the amount of time that it takes for them to actually get scheduled. Especially the travel Board hearings and the in-person hearings at Washington DC, those take a very long time. Video conference hearings tend to be a little bit more quicker because they’re just a bit more flexible in how the veteran and their representative and the VLJ will be able to communicate with each other, it’s literally set up via video. They tend to be a bit more flexible and be scheduled sooner but again the wait is still a significant amount. Hearings are– it really depends on the certain facts of your case. Hearings can also be advantageous if you need to really explain your story to the judge and kind of give them a full account of your testimony. It gives them an opportunity to see you face to face, and to hear your story.
Brad: Great. So, Mike does it matter what type of hearing a veteran chooses and what does CCK, this firm often do as it relates to Board hearings?
Mike: Sure. So, as with a lot of things that it sort of depends on the individual situation that the veteran is in, but typically here in cases that I’ve handled at CCK, we often find that the delay in requesting a hearing is not worth the benefit that the veteran may potentially derive from having that hearing. I would say as a general rule we’re somewhat hesitant to request hearings. That being said, there may be certain instances when a hearing is advantageous. It really depends on the individual circumstances of each case. I would note that a couple things veterans should know in going about requesting a hearing. Number 1, the veteran isn’t going to receive an actual decision at the time of the hearing, and so, really the hearing is an opportunity for the veteran to put his or her case on the record before the VLJ, present any evidence at that time that they’re allowed to bring and submit medical evidence or written statements, and hand them to the Veterans Law Judge at that particular time and they will be incorporated with the rest of the veteran’s file. The hearing is not set up to be an adversarial situation. It’s not like a trial or even like a deposition. It’s really an opportunity for the veteran’s voice to be heard on the record. The veteran will be on the record so they will be sworn and their testimony will be included in a transcript that ultimately they receive a copy of, that being said though it is not the same as your typical trial situation or a deposition situation where it’s much more of an adversarial type of arrangement. I would also note that with the– and as Rachel said with all of the hearings, one of the main reasons why we oftentimes will not advocate for a veteran to obtain a hearing is because of the substantial delay it can cause in the veteran’s case. Oftentimes, there are just other better ways to go about submitting the same evidence and so we oftentimes will instead submit various lay statements by either veteran, the veteran’s spouse, an employer to really obtain or achieve the same objective without necessarily incurring the delay associated with a hearing.
Brad: So, moving on from hearings. Let’s talk a little bit about decisions from the Board of Veterans’ Appeals. How are Board decisions different from rating decisions that your local Regional Office will give you?
Rachel: Sure. So, the Board decisions once they’re issued they will typically be structured in the sense where the Board will either deny the issues, they will refer, remand, or they can grant. They have to have reasons and bases, they have to apply the law. Findings of fact and within the decision and they have to fully inform the veteran the reason why the benefits are being denied or the reason for the action that they’re taking.
Brad: So, do these decisions physically look different than rating decisions that the Regional Offices issue?
Rachel: Yes. Also, the Board has come out with a new structure for how their decisions are constructed. So, the Regional Office decisions you’ll see the award letter, you’ll see a rating decision, that’s that page with a seal on it. The Board decisions will have the cover page. They will have on the second page the list of issues that they are addressing, and then the body of the Board decisions tend to be a bit more lengthy of course again depending on the facts of the case, and at the end of it will come what the Board has decided.
Brad: Are Veterans Law Judges at the Board looking for something different than adjudicators at the Regional Office?
Rachel: The Board is– they’re looking to– they’re reviewing the case to see if there were errors that the Regional Office had made in adjudicating the veteran’s benefits. They tend to have a higher level of review and just have a little bit more experience in applying the law than the Regional Office raters. They’re also looking for in some cases just kind of quality assurance, I think on the Regional Office, if they’ll notice issues have been raised by the record but having been addressed, they will remand them back to the Regional Office for them to be addressed.
Brad: And just to go along with what Rachel said, the adjudicators at the Board of Veterans’ Appeals are all attorneys. So, the staff counsel that work on preparing the decisions for the Board are lawyers, as well as the Veterans Law Judges or Board members who are also attorneys steeped in VA law and hopefully very familiar with both the statutes, regulations, and case law that’s involved. So, with that what’s a remand from the Board, Mike?
Mike: Sure. So, a remand is one of the options that a Board member can reach when deciding a veteran’s case. A remand essentially means that the Board needs additional information to decide the case, and for that reason, they’re sending the case back down to the Regional Office to do a number of different potential things. So, they could be seeking additional records, treatment records, service records. They could be seeking a new examination that oftentimes happens where the Board will remand the veteran’s case down for a new compensation and pension examination for a particular condition. It essentially means that the Board doesn’t have the information it thinks it needs to decide the case. Along with that, they could remand because they see that in conducting an examination at the Regional Office level the examination was inadequate. So, they have a duty to assist obligation to remand the case back down to the Regional Office to acquire a new hopefully adequate examination prior to them being able to actually decide the case.
Brad: So, is that a good thing or a bad thing when a veteran gets a remand, or does it depends?
Mike: Well, it depends. It’s not a final decision, so it’s not a denial that the veteran necessarily needs to appeal further to court. It prolongs the veteran’s case certainly but it does give the veteran an opportunity to supplement the record with additional evidence and argument if he or she chooses to do so. If the veteran’s prior examinations were unfavorable to the veteran then it gives the veteran an opportunity to maybe attend a new examination that could be favorable, or obtain additional service records or treatment records to help bolster the veteran’s case. I don’t think you can say one way or the other whether it’s necessarily positive or negative. Again, it highly depends on the circumstances and the good news is it’s not a denial, the veteran’s case and all his or her effective dates continue on.
Brad: So, speaking of that, so what happens when the Board of Veterans’ Appeals grants a claim? For instance, if I’m going to be service connected for PTSD, for example, and the Board of Veterans’ Appeals agrees and says, “Yes, you’re entitled to that benefit.” What happens? Does the Board give them a retroactive award? What’s the process?
Rachel: Sure. So, once the Board grants a benefit, and the example you gave service connection for PTSD what would then happen is the file would go back to the Regional Office for them to implement the decision. So, it would be the Regional Office who would assign the rating and the effective date, and also the past due benefits they would generate the award.
Brad: So, that’s all at the Regional Office. So, if the veteran was unhappy with those answers from the Regional Office they’d have to then appeal the rating and the effective date back to the Board?
Rachel: If the Board itself didn’t assign the rating and it didn’t assign the effective date, and it was the Regional Office that assigned the effective date and the rating, then the veteran could appeal the rating decision that the Regional Office made, so they could file a Notice of Disagreement with the evaluation and the effective date.
Brad: Those are typically what would are called downstream issues in the VA claims process. We have a question from Rick and that’s, the question is, “I’ve read where the Board has more latitude in their decision making than the Regional Offices do. Is there any truth to this or is it just that the Board members know the law better?” That’s a great question. This is based off of my opinion and my experience. It’s a little of both. The Board members really do have decisional independence at the Board of Veterans’ Appeals meaning, no one at the VA, no one’s telling them how to decide in the individual case. At the Regional Offices the raters, they have different people they have to report to. So, it’s always my sense that they don’t have quite the same degree of latitude. They’re governed by the what they call the M21 manual which helps guide their adjudications, and they also have a quality review regime where they don’t ultimately have decisional independence. In addition the Board of Veterans’ Appeals, it’s a bunch of lawyers. So, they’ve spent a lot of time with the law. They should frankly know the law a little bit better than non-attorneys working at the Regional Offices. But the main thing is that the Board of Veterans’ Appeals just has, they have more time to review the claims files. So, that’s a great question, thank you. So, getting back to some of the other issues that we want to talk about, so what if the Board denies a claim? Mike?
Mike: Sure. If the Board denies your claim, all hope is not necessarily lost. You still have the ability to appeal that decision potentially to the Court of Appeals for Veterans Claims. The Court of Appeals for Veterans Claims is a separate entity from the Board. It’s a federal court, it’s not included within the Department of Veterans Affairs. The veteran has 120 days from the date that the Board decision is issued to then appeal that decision to the Court of Veterans Appeals if he or she chooses to do so. A couple things to know about that, number 1, appealing a Board decision is slightly different than appealing your regular rating decision or Statement of the Case. And by that I mean you really have to find a legal error in the Board’s reasoning and decision, a simple disagreement with the way that the Board saw the evidence isn’t going to be sufficient. Additionally, it’s good to know that if a veteran does appeal the Board denial to court, their effective dates are preserved. So, it’s not the end of the road in terms of a veteran who’s been fighting for his claim for 10 years you know if you take the denied Board decision to court and you’re successful, the effective date will still be in effect.
Brad: Okay, and so another part of that is that when you get to the Court of Appeals for Veterans Claims it’s an adversarial process. What that means is up until then the VA, within the VA claims process it’s supposed to be non-adversarial. VA has a duty to assist. It typically, let’s say an attorney it’s not required, although some veterans choose to have that, many more veterans choose to use veteran service organizations to help represent them. But at the Court of Appeals for Veterans Claims all that’s over. You now have attorneys from the VA who are working against the veterans in court, and so that would be a case where you’d probably be more interested in getting legal representation at that point. Is that a fair statement?
Mike: That’s very fair.
Brad: Okay. So, another question that often comes up is about filing a motion for reconsideration versus appealing to the CAVC. And while we don’t want to get into providing legal advice during this broadcast because every case is different, a motion for reconsideration is often only worthwhile if there is a really obvious error that was made that you think upon pointing it out to the Board of Veterans’ Appeals, they will change their decision. I think that in many cases it probably makes more sense to appeal the case to the Court of Appeals for Veterans Claims, because you have a different set of adjudicators or in this case judges then looking at the case. So, let’s talk a little bit about the Board of Veterans’ Appeals backlog and productivity. So, I understand the Board issues thousands of decisions per year. Do you have any idea how many we’re talking about more recently, Rachel?
Rachel: So, at this point, they’re on point for issuing about 65,000 decisions so far. They’re averaging about 1,500 cases a week. Their goal is to issue around 80,000 this year.
Brad: Okay, and based off of our review of the numbers, it looks like they’re actually going to exceed the 81,000 that was their goal and get close to 83 to 84 for the calendar year. And the reason that’s significant is that’s nearly double what the Board issued in the prior fiscal year, so that’s a tremendous increase. Why do you think there’s been such a large spike in cases being decided?
Mike: Well, I think that well number 1, the Board is hiring additional attorneys and staffing, and they’re bringing on more Veterans Law Judges. So, they have in theory more capacity to handle more cases. I do think that the backlog is tremendous and they are trying to make every effort to push out as many cases and decide as many cases as possible, especially ahead of, potentially ahead of Appeals Reform.
Brad: It’s my understanding that there’s well over 400,000 appeals in the VA system at all levels of the appeals process, and at the Board, I believe there’s currently over 100,000 cases waiting to be decided before the Board of Veterans’ Appeals. With that just to provide a little context right now there are right around 100 Veterans Law Judges deciding these cases and more than 700 attorneys, and I believe it’s by the time the Board is done hiring it will be more than 800 attorneys, staff attorneys who are supporting the Veterans Law Judges as well as administrative staff, taking the Board’s total size to somewhere between a 1,000, 1,100 employees I believe. That being said in what order does the Board decide cases?
Rachel: So, the Board decides cases in docket order and as Mike had mentioned earlier, once you file your VA 9 appeal that sets you forward in getting your case reviewed by the Board, but the date of your VA 9 appeal will determine your docket number. Essentially, it will determine where your place is in line and when the Board will review your case.
Brad: Can you give me an example of how that would work in real life?
Rachel: Sure. So, for example, if a veteran files his– two veterans, one files his VA Form 9 in 2016, one filed his VA Form 9 in 2014. That 2014 VA 9 appeal will be reviewed before the 2016 docket number.
Brad: So, sort of a first-in-first-out concept?
Brad: Okay. So, are there any ways you can expedite your case or speed up the case once it’s at the Board of Veterans’ Appeals?
Rachel: Yes. You can, VA– the Board well, you can submit a motion to advance on the docket to the Board of Veterans’ Appeals and you can do that for a few different reasons. It can be due to financial hardship, terminal illness, or if a veteran is over the age of 75 years old.
Brad: Okay. So, there are ways to do it if you meet those criteria. So, then the Board would move your case to the front of the line so to speak and decide it usually in a much quicker format. So, one of the questions we got is from Vicki, is how a veteran can deal with numerous remands on a claim. Let me kick the question over to you two, what do you guys think?
Mike: So, I would say that it’s important to know first, why the Board remanded the claim. I would closely take a look and see what the remand instructions specifically ordered. The Regional Office is required to strictly adhere to the remand instructions that are dictated in the Board’s order. There also, the Regional Office is also supposed to work through remand instructions in the order for which the Board lays out those remand instructions. So, I would say that it’s critically important that you first know what the remand instructions require of VA to make sure that you’re following up, to make sure that the RO actually implements and completes those remand instructions. And know that you will have an opportunity to submit additional evidence, additional argument, in response to any of the remanded items that the Board has ordered.
Brad: Rachel, do you have anything that you like to add on to what Mike said?
Rachel: Sure. The only thing that I would maybe say is some remand instructions may only apply to a certain amount of issues that have been remanded, may not necessarily apply to all. Also, if part of the remand instructions is to elicit information, they’re asking for evidence, it’s good to know that VA will be sending out some form of letter requesting that kind of information. So, you also kind of want to be alert and responsive as well.
Brad: I know it can be incredibly frustrating to deal with remand after remand in the appeals process. And having worked at the Board I saw lots of cases where that occurred and two of the most common scenarios for that are the inability to get what they call an adequate medical opinion on a question of service connection, where the Board of Veterans’ Appeals feels that the medical experts that they’re sending the cases to haven’t answered their questions or at least haven’t answered them completely. And second is, because the appeals process takes so long that a veteran’s disability is not static meaning that it changes, it gets worse. So, the Board of Veterans’ Appeals feels like they need to get new examinations that most accurately reflect the current severity of the disability, and so that can turn into a sort of a self-fulfilling prophecy where the case gets sent back, a new exam is done but then by the time the case gets back to the Board of Veterans’ Appeals, the new exam is too old and the veteran’s disability has worsened again. And it sort of goes on and on and on, which is very frustrating.
Mike: And just to that point, I would say as frustrating as it may be to be scheduled for a new exam, it is critically important that veterans attend the remanded exam. Oftentimes, we’ll see that either the Board or the Regional Office will use a missed exam as quite frankly an excuse to deny. So, despite the fact that your case has been remanded maybe time and time again for new exams, it’s been my experience that it’s critically important for veterans to actually attend those examinations to make sure that the remand instructions are completed, and that the Regional Office strictly complies with the remand instructions in the Board’s remand order. And if they don’t, if the Regional Office does not, then it’s important to make the Board aware of that.
Brad: So, we have another question from Tyrone and this is a question about whether there’s any word on whether the St. Pete or St. Petersburg Florida Regional Office has been processing Board of Veterans’ Appeals grants in a timely manner? Based off of what we understand there have been some delays. It’s not unique to St. Petersburg, it is across the VA system particularly as VA is ramping up for Appeals Reform, they have reassigned staff in various cases. So, it’s our understanding they are a little behind on that. It’s also our understanding we’ve been assured that they’re working to fix that issue and get those grants implemented as soon as possible because that’s something we’re following very closely at the firm as a matter of fact. So, let’s talk a little bit about Appeals Reform. What do you think, how will this change things at the Board of Veterans’ Appeals?
Rachel: So, it’s certainly going to look differently. One of the things that we know is coming with RAMP is you’re going have different options, a Notice of Disagreement as it looks today is not going to look the same as a Notice of Disagreement under Appeals Reform. So, you’ll have the opportunity to elect three different elections. Once you file your appeal you can do direct to the Board which means no additional evidence, you don’t want a hearing. There will be another docket for hearings if you do want a hearing, and there will be another docket if you don’t want to hearing but you want to introduce additional evidence into the record. So, the Board is going to have three dockets versus their single docket at this point.
Brad: So, now I understand Appeals Reform, the Appeals Modernization Act goes into full effect, officially scheduled to go into full effect in February 2019. Now Rachel’s talked a little bit about RAMP. What is RAMP, Mike? What’s the interplay with this RAMP program and the Board of Veterans’ Appeals?
Mike: So, RAMP stands for the Rapid Appeals Modernization Program. It is essentially a pilot program launched by VA to test out kind of how the new appeals process will be once it goes into full effect come February of 2019. So, what the RAMP program allows veterans to do first off it’s optional. Veterans are not required to participate but if they choose to do so, they are currently allowed to opt in their appeal to one of two lanes. The first lane being what’s called higher-level review and that lane allows veterans to have their appeal reviewed by a supposedly more experienced VA employee who will look at the appeal that the veteran filed brand– anew. It’s important to know though that the duty to assist requirements don’t apply within that lane and the veteran’s case will be decided based on all the evidence that’s been previously submitted. No new or additional evidence will be allowed to be submitted once in that lane. The second lane as they’re called under RAMP is what’s called the supplemental claim lane. That lane is a lane where veterans are allowed in and in fact are required to submit what’s called new and relevant evidence on their claim, for VA to decide the case. Under either lane even in a scenario where veteran’s denied, they will still have the opportunity to eventually appeal their case to the Board. It’s our understanding here that the Board opens up officially in at the very earliest in October of 2018, so in the next couple months here. So, like I said it’s important to know that even a denial in RAMP can still ultimately be appealed to the Board whereas Rachel said, they would have the options to select one of three different lanes.
Brad: So, it’s just that right now the Board of Veterans’ Appeals is not processing any of these RAMP cases that they’re scheduled to begin processing them hopefully in October of 2018, with everything going into effect in February 2019.
Mike: That’s correct.
Brad: Okay. Well with that, we’re at the end of our outline but we’ve got another question I was just going to ask if anyone had additional questions. This is a question from Lucas, “I’ve opted in to RAMP. Do we have updated RAMP stats for August?” I don’t believe, I certainly have not seen the updated RAMP stats for August, and I don’t believe that VA has released those yet. Mike or Rachel, maybe you?
Mike: As far as I’m aware the most recent data has come, I think as recently as March I want to say. So, in terms of data from August, we still don’t have that here. It’s been our experience that in some of the cases on an individual basis that we’ve opted in to RAMP for clients, decisions are coming not maybe as quickly as we had anticipated but again, we just don’t have the most updated data on the program yet.
Brad: So, one thing to keep an eye out is for the VA’s websites to see when they announce that as well as any hearings that are held before the House Committee on Veterans Affairs and Senate Committee on Veterans Affairs, both of which are very interested in the implementation of the Appeals Reform legislation. They often respond and have VA officials providing information during those sessions. With that do you have any sort of closing thoughts before we go?
Mike: I would just reiterate that it’s really important for veterans to take a look at the Board decision when they receive it to see exactly what’s been done because you do have 120 days to appeal, and that’s much shorter obviously than the one year deadline to appeal a rating decision within the Department of Veterans Affairs. With that being said, and knowing that you need to really find a legal error in the Board’s decision in order to appeal that case if it’s a denial to Court, that may be a good opportunity for you to seek legal representation to have an attorney or an accredited claims agent really take a look at the case, see if a legal error has been made and see whether there’s the ability to appeal that case further to federal court.
Rachel: The only thing I want to tag on to that and when we were just discussing evaluations and one of the if the Board assigned the effective date or if the rating. In cases that the Board does assign the effective date and the rating, and the Regional Office implements that, you would have to file the appeal with the Court of Appeals for Veterans Claims as to the effective date and the rating because the Board’s assigning it. You wouldn’t then be able to file an appeal at a Regional Office level. I just wanted to clarify.
Brad: Great. Again, this is Brad Hennings with Chisholm Chisholm & Kilpatrick. If anyone has any additional questions please put them on Facebook or contact us. Give us a ring on our phone number, contact our website cck-law.com. This is Rachel Foster, Mike Lostritto and I just wanted to close with, it can be complex going to the Board of Veterans’ Appeals. So, if you’ve ever got any questions while you’re headed towards the Board or once you get a Board decision and it doesn’t really seem to make any sense or you think the Board got something wrong, please go talk to your representative, be it a veteran service organization, be it a VA accredited agent, or an attorney, someone who may be able to assist in reviewing them and helping you out. With that, thank you for joining us and that’s it.