2019 will certainly bring significant change to the world of veterans’ benefits. VA’s reformed appeals process is set to take effect in February of this year. The Supreme Court is going to decide two VA Law-related cases as well. These events are momentous and rare, so our team found it important to explain what they might mean for veterans, their families, and advocates.
VA Appeals Reform
The way VA processes veterans’ disability compensation appeals has been overhauled by the Veterans Appeals Improvement and Modernization Act of 2017. The intent behind this law was to make the procedural process of adjudication faster and more efficient, ideally reducing the backlog that has plagued the Veterans Benefits Administration for years.
Under the current Legacy system, there is one claim stream that all appeals must go through. Starting in February 2019, the new VA appeals process will be implemented and all new claims will be processed in it. Under the reformed system, veterans have three appeal options which we will refer to as “lanes”:
- Higher-Level Review. When opting in to this lane, veterans are not allowed to submit additional evidence. The appeal will be adjudicated at the Agency of Original Jurisdiction based on the evidence of record. This type of appeal will be adjudicated by a different, more experienced VA adjudicator at the Regional Office level. Veterans might consider this lane if they believe that their claim is fully developed.
- Supplemental Claim. This lane allows veterans to submit additional “new and relevant” evidence to support their claim. These claims are adjudicated at the Regional Office level.
- Appeal to the Board. Veterans can choose to appeal their case directly to the Board of Veterans’ Appeals. Within the Board lane are three options veterans can choose:
- Evidence Docket. This option allows veterans to submit additional evidence to the Board prior to its decision.
- Hearing Docket. Veterans who wish to attend a hearing before the Board of Veterans’ Appeals may select this option. Veterans are allowed to submit additional evidence in this lane either at the hearing or within the 90 days following.
- Direct Review Docket. No new evidence is allowed to be submitted when selecting this option. By selecting this option, veterans are opting for the Board to review their case with the evidence of record.
Note: We encourage veterans to contact their accredited representatives prior to selecting a lane.
VA-Related Supreme Court Cases
In 2019, the U.S. Supreme Court will decide two VA-related cases, Kisor v. Wilkie and Gray v. Wilkie. This is a particularly unique occurrence, as the Supreme Court has only heard four VA-related cases since 1988. These cases could bring significant change to the world of Veterans Law. Here’s how:
Gray v. Wilkie
The Gray case involves a Blue Water Navy Vietnam veteran who served in Da Nang Harbor. After applying for service connection for conditions related to Agent Orange exposure, VA denied his claim citing that it does not consider Da Nang Harbor an “inland waterway” of Vietnam. This same reason is why thousands of Blue Water Navy veterans are ineligible for presumptive service connection for conditions related to Agent Orange exposure.
Mr. Gray appealed this decision to the Court of Appeals for Veterans Claims (CAVC), who concluded that VA’s definition of “inland waterways” was inconsistent and offered no explanation as to why some bays were classified as inland waterways, whereas others were not. From here, the CAVC remanded Mr. Gray’s case to the Board of Veterans’ Appeals with instructions to re-evaluate its definition of “inland waterways.”
As a result, VA adjusted its interpretation of “inland waterways” in the Adjudication Procedures Manual M21-1, the manual in which VA publishes its policies for resolving benefits claims. This new interpretation stated that only veterans who served with “boots on the ground” or served in the country’s inland waterways, specifically “fresh water rivers, streams, canals, and similar waterways” would be included in the Agent Orange presumption—but not those who served in “ocean waters and related coastal features.”
This interpretation was challenged to the U.S. Court of Appeals for the Federal Circuit where it was argued that VA lacks the authority to make substantive changes through its M21-1 Manual, and that this should have been done by a process known as notice and comment rulemaking (i.e. a regulation). The Federal Circuit held that it lacked jurisdiction to review VA interpretive rules when published in the M21-1. In response, Mr. Gray requested that the Supreme Court review the lower court’s ruling of whether the Federal Circuit has jurisdiction to review VA policies set forth in the M21-1—to which they agreed.
What is important here is that if VA were to have adjusted its interpretation through a regulation, veterans would have been able to challenge it directly to the Federal Circuit. Instead, veterans now must pass through legal hurdles to challenge any rules published in VA’s manual, which can take many years.
Kisor v. Wilkie
The second upcoming Supreme Court case in 2019 to discuss is Kisor v. Wilkie. Mr. Kisor was seeking an earlier effective date on his claim for benefits. This decision relied on the interpretation of a VA regulation. The Federal Circuit saw both Mr. Kisor and VA’s interpretation of the law at equal weight.
In the VA system, veterans are afforded the benefit of the doubt. This means that if there is an equal weight of favorable and unfavorable evidence, the tie is supposed to go to the veteran. But due to a previously established doctrine, the Auer/Seminole Rock deference, the Federal Circuit deferred to VA’s interpretation of its own rules. At issue in Kisor is whether courts should defer to a federal agency’s interpretation of its own rules.
The Auer/Seminole Rock deference applies to all federal agencies, not just VA. Those working on behalf of Mr. Kisor attest that if courts are always supposed to defer to the agency in question’s interpretation of its own rules, the agency could then change its interpretation to suit its own needs whenever the regulation is challenged. In fact, some argue that it could incentivize agencies to write ambiguous regulations, so they may decide its interpretation on a case-by-case basis.