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VA Appeals Reform is HERE (February 19, 2019)

  1. Legacy Appeals: The Old System
  2. Appeals Modernization: The New System *with graphic*
  3. The Appeals “Lanes”
  4. Switching Lanes
  5. The Legacy Appeals Backlog & Opting in to Appeals Modernization
  6. Higher Level Review Lane & Supplemental Claim Lane
  7. The Board of Veterans’ Appeals (BVA) under Appeals Modernization
    • The Board Dockets *with graphic*
    • Appealing a Board (BVA) Denial under AMA
  8. Appeals to the Court of Appeals for Veterans Claims (CAVC) under AMA
  9. VA Decision Letters under AMA
  10. Technological Challenges
  11. Over 100 updates to the M21, VA’s field manual
  12. Why speak with your advocates?

Video Transcript.

Robert: Good afternoon. This is Robert Chisholm and Zachary Stoltz and we’re here to say Happy Appeals Reform Day.

Zach: Happy Appeals Reform Day.

Robert: This is a big day for the VA In fact, I believe there was a kickoff at VA central office today to sort of do like a ribbon cutting. But we thought it would be good to just do a quick overview again of Appeals Reform and raise what we have as concerns about Appeals Reform going forward. But to begin Zach, I think it’s important to sort of talk about Legacy appeals. Those are the appeals in the old system before today. And that system has been in place for I think over 40 years now.

Zach: I think over 40. Well, basically for 40 years with the court added onto it about 30 years ago.

Robert: So, we have a graphic that we’d like to share with you about Legacy Appeals. The interesting thing about Legacy Appeals is there was only one direction to go. So, you get a claim. And if the claim is denied at the Rating Decision level, you appeal, you file a Notice of Disagreement that had to be filed within one year of the Rating Decision. After the Notice of Disagreement, if the claim was still denied, the VA would issue a Statement of the Case. And then there was a second level of appeal called the VA 9. The VA 9 had to be filed within 60 days of that Statement of the Case. Sometimes, after the VA Nine before the case went to the Board, if new evidence was submitted, a Supplemental Statement of the Case was added to the record. A claimant could then ask for a hearing or go directly to the Board without a hearing and then the Board would make a decision. The problem with that timeline, generally speaking, was it was taking anywhere from three to five to seven years from the time a claim was filed until BVA decision was made. There’s a lot of historical reasons for that backlog. But that’s been the system until today. And so what VA did was gather all the stakeholders, hold a number of meetings, and they implemented what they’re calling a simplified appeal system and that’s what we begin today. So, I’d like to show two slides about simplified appeal system. The first one maybe you can hit is the one regarding the different lanes.

Zach: Well, I’ll do a real broad overview. So, as Robert said in the past and to be clear, going forward from a lot of people because this legacy program had– what they’re calling Legacy Appeals, which means appeals that are existing right now and were existing yesterday and before that, are still going to be adjudicated under the old system with some caveats to that, that we can get into. But by and large, there’s still going to be proceeding for now under the old system. So, they are going that one-way direction. But claims filed today and beyond today and some of these so-called Legacy Appeals will be able to opt in at some point to the Appeals Reform and that has three lanes. So, when Robert said that you had one direction to go and I pointed up, that’s no longer true. VA has said that this will simplify the adjudicatory process. It is frankly a little bit tough to see it being simpler just in looking at the slide because there are so many different roads. But because of the way VA adjudicates the cases, it is their theory and it is the theory of people who helped work on this legislation that this will, in fact, get claims to go to the right place. So, get claims before the right adjudicator at the right time. And in that sense, it should simplify the process. And so, instead of just being able to file a Notice of Disagreement right away and going up the Board route. Now you have these different levels of review where you are able to stay at the regional office, which is a higher-level review and that has– and I’m sure Robert will get into this– its own rules. You can file a supplemental claim. And there is still the Board of Veterans Appeals option. And under Appeals Reform now, the claims never really die because if you are dissatisfied with the Board decision, you’re able to go back to the regional office and you can pick one of your three paths again or even go up to the Court of Appeals for Veterans Claims. And even if you’re unsuccessful there, you can, again, go back and file what’s called a supplemental claim. And each one of these choices, each one of these three lanes has its own complexities and its own decisions to make and its own regulations that are guiding what is supposed to happen. And the bottom line to me really is, while there are regulations and while there are VA procedures that have been set up and while there are some statutes that Congress passed that deal with all these, nobody has ever done it before. Today is the first day. And so, it is going to be key for us here, the lawyers and the advocates that are working to help our veteran clients and their families to stay on top of this, make sure that the people are getting the right training. People are doing the right thing at the VA level, both at the Board, at the regional offices, at these higher-level reviews, etc. So, those are the broad strokes of what’s happening now.

Robert: So, I’m just going to add a couple more comments on what you said, Zach. We think there is potentially 350,000 to 450,000 appeals in the system today that are still in legacy. And so, those folks, as they get decisions in the future will have different points to opt into Appeals Reform. But for all new rating decisions going forward, they will be in this new system. And so, higher-level review means that if you get a decision by the regional office and you believe it’s wrong and you don’t want to add any evidence, you should go into the higher-level review. If you get a decision from the regional office and you believe you need to add more evidence, say, a medical opinion, then you want to go into the supplemental claim lane. If you want to go right to the Board, it used to be a two-step appeal to the Board. Now, it’s a one-step. You file your Notice of Disagreement. Go right to the Board. You don’t go through the Statement of the Case process or the VA 9 process. So, in that sense, it’ s faster. But when we get to the Board, we’ve got a new graphic because there’s three lanes at the Board. And this is important because they each have a different mission.

Zach: So, we went three lane choices and then you get to the Board and there’s three more lanes.

Robert: Yes.

Zach: So, we’re up to six lanes.

Robert: We’re up to six lanes. But it’s important that I still think if you go in the direct docket lane, that is, you get a decision from the regional office. You don’t want to add any additional evidence. You go into direct docket lane, they’re promising or they’re hoping to get a decision done within a year. Which is a lot faster than the three to five to seven-year process in the past. The direct docket lane, you can’t add any evidence and the Board will make a yes or no determination. In the hearing docket lane, you get a hearing before a Veterans Law Judge. They won’t be doing travel board hearings anymore. You’ll either have to go to D.C. or do a video hearing. Those will be the two options for the hearing docket. And in the evidence docket, you would be able to submit additional evidence at the Board up to a certain amount of time and then the Board will make a decision. For the evidence docket and the hearing docket, they’re not promising to get those decisions done within a year. They think those decisions will take a little bit longer. But at the end of the day, if you get a Board decision that denies your claim, as Zach pointed out, you have two options. One, you can appeal to the court within 120 days or two, you can go back to the regional office and submit new and relevant evidence in the supplemental claim lane. And as long as you file that within a year, you’re able to preserve that effective date. Now Zach, we think this may have an impact on appeals to the court but there’s a new wrinkle in what happens if you go to court and you lose. Under the old system, what happened first of all?

Zach: Under the old system, if you went to the Court of Appeals for Veterans Claims and you were unsuccessful, you were able only to appeal to the Court of Appeals for the Federal Circuit. And as we’ve discussed in Facebook Lives in the past and as we have on our website, appealing to the Court of Appeals for the Federal Circuit, while very valuable, is a very rare occurrence because the Court of Appeals for the Federal Circuit has a really narrow jurisdiction and they can only review what they call pure questions of law. So, they can’t take into account any factual disputes or anything like that. And so, it was rare to get to the Federal Circuit to find further relief. It happened, but it was rare. And that option is still going to exist. But now, at the Court of Appeals, after you go to the Court of Appeals for Veterans Claims and you’re unsuccessful, you are able to file within one year of the Court of Appeals for Veterans Claims decision, the supplemental claim the same way that you could at the Board of Veterans Appeals, which Robert just explained. So, even if you’re unsuccessful at court, you’ve really lost nothing but time, which is important. And I don’t mean to minimize that because time is of the essence for these claims. But you really have lost nothing but time. And you are now able to get an independent court review your case and maybe they will have decided in your favor, maybe they will have not. But even if they have not, you are still able to go back and file that supplemental claim. So, that’s a really huge shift. And really, frankly, unlike anything else that I really know about in other areas of law where you get to go to court and even if you’re unsuccessful, you’re still not done.

Robert: That’s true. So, I’d like to now switch gears and sort of go to the editorial portion of the Facebook Live here. We have some questions about how the AMA, the Appeals Reform is going to work. And my first thing is that the statute about Appeals Reform requires every decision to have the following things in it. They have to tell you what the issues are that they decided; they have to give a summary of the evidence that the VA reviewed; they have to give a summary of all the laws and regulations. They have to identify what they’re calling favorable findings of fact for the veteran. In the case of a denial, they have to identify the elements not satisfied leading to the denial. So, they have to tell you what was in your favor and what they specifically found that was not in your favor. Here’s the thing. They’ve had this test pilot. And the test pilot they’ve been using is called RAMP. RAMP has been in existence now for over a year and it just stopped a couple of days ago because we now have Appeals Reform. And in RAMP, the VA was supposed to do this in those decisions. In our experience was, we were not getting the statutory notice required for the decisions. So, we have concerns that the decisions are not going to include that evidence. And Zach, do you want to talk a little bit about some of the technological challenges we’ve been hearing in terms of VA being ready to manage a caseload both in Legacy and in Appeals Reform?

Zach: There is a lot to be a little bit worried about whenever there’s going to be a seismic shift for a system that has to handle literally millions of claims a year. And we believe VA is going to do their very, very best. And there are some extraordinarily good, talented, hardworking people at VA, but nevertheless, this is going to be a huge challenge. Like Robert was saying, one of those challenges is just simple technology. VA’s technology, as we understand it, is built on some of some older systems. And I am not a tech expert at all, I’m just a lawyer. So, I don’t understand the ins and outs of it. But I do know that there is some major concern about getting files uploaded into the online systems that VA uses to make sure that health records get associated with the file in a right and timely manner. And to be sure that veterans and their representatives, whomever those may be, have access to these records, so that we can see them, so that we can choose the right path of these three to six different paths that we’re all going to have to go on together now. Being able to make a good conscientious well-informed decision is dependent on this technology which, it’s our understanding, has some bugs in it. So, it’s going to be interesting.

Robert: So, one of those bugs surfaced today, the first day of Appeals Reform. And in fact, it may have been deliberate, that our access to our clients’ files online in the VBMS system, we didn’t have access today. And I’m hoping that’s just a one day pause. But so far, it’s concerning. So, those are some of the concerns we have. Veterans, claimants are going to have some choices to make in this new system. These are not easy decisions. And we don’t know– we honestly are going to learn on the fly. VA is going to learn on the fly. They just issued over 100 updates to their M21, which is their guidance for the regional offices adjudicating these claims, or making decisions on these claims. That guidance was issued today and is hundreds of pages long. And one wonders how a regional office person could understand all that getting thrown at them literally today.

Zach: Going to be tough.

Robert: So, these are some of the concerns we have. Any last thoughts about Appeals Reform?

Zach: My only thought is it is probably wise for veterans and their families and anybody who’s going to enter the VA compensation system to speak with their advocates, whether that’s a place like Disabled American Veterans or another VSO or with us at CCK, it would be a good idea to kind of be sure that you’re making contact with the person who is shepherding you through what is going to become, hopefully– we’re all very optimistic. Hopefully, it will work. Hopefully, it will lead to faster resolution of claims the way VA has kind of projected out. But while we’re getting started and while it’s a little bit rocky, it’s going to be good to work together as a community on it.

Robert: And I would just echo what Zach just said. We are all hoping for the best here. But we need to keep our eyes on things. Please tune back into us on Facebook Live. As we learn information, we share it with you. One of the things we recently shared was that the forms to choose lane 1, 2 or 3 are on our website. They are not being sent with the Rating Decisions, we understand. So, these are going to be forms that you have to dig through the VA website or come to our website to look at. But please check back in with us on Facebook Live or cck-law.com. And if you have any questions, please reach out to us and we’ll respond to the best of our ability. Thank you very much.

Zach: Thanks.

Robert: This Robert Chisholm and Zach Stoltz signing off from CCK.

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