On May 22, 2017, the U.S. House of Representatives unanimously passed a bill that would transform the appeals process for benefits claims at the Department of Veterans Affairs. The bill then proceeded to the Senate where it passed with an Amendment on August 1, 2017. Ten days later (on August 11, 2017) the House passed the bill with the Senate Amendment by unanimous consent. This means the legislation will now proceed to the President’s desk for signing.
The Act’s changes to the appeals system will fundamentally restructure the Veterans’ Benefits Administration (VBA) to allow veterans to choose different appeal “tracks.”
How The New Appeals Process Would Work
The proposed appeals process streamlines the parts of the review process that tend to increase wait times. In particular, the reforms target the processes surrounding new evidence and hearings. Currently, veterans can submit new evidence at any point during their appeal, which causes an additional round of reviews and drives up wait times. And veterans can wait years just to get a hearing scheduled.
Note: The bill changes the language of new and “material” evidence to new and “relevant” evidence.
Under the new appeals process, appeals must be filed within one year of your denial. When denied for the first time, Veterans would choose one of the following tracks:
1. File a request for higher level review.
If you choose the higher level review track, you file your appeal with the Agency of Original Jurisdiction – usually your local VA Regional Office. You can also request a higher level review at a different Regional Office.
There, a more senior VA adjudicator performs a “de novo” review of your claims file. That is, the adjudicator looks at your file anew. In this track, however, you cannot submit new evidence. The decision will be made based on the evidence contained in your original claims file.
2. File a supplemental claim.
A supplemental claim, as defined by the bill, is a claim for benefits filed by a claimant who had previously filed a claim for the same or similar benefits. So, for example, a claim to reopen or a claim for an increased rating would be considered supplemental claims. If filed within one year of your denial, a supplemental claim effectively remains part of the original claim (thus preserving the same effective date).
If you choose this track, you would file your “supplemental claim” with the Agency of Original Jurisdiction – usually your local VA Regional Office – similar to a request for higher level review. But unlike a higher level review, you must submit new evidence.
3. File a Notice of Disagreement directly with the Board of Veterans Appeals.
Under the new system, veterans will file a Notice of Disagreement directly with the Board of Veterans Appeals after their first denial, allowing them to skip a second review at the Regional Office. This could be a critical change because, as of 2015, the average cumulative time veterans waited for a decision by the Board is almost 5 years.
Within this track, Veterans would be able to choose whether or not they want a Board hearing. The Board would have two dockets, one for veterans who do not want a hearing and one for veterans who do.
Veterans would also be allowed to submit new evidence at the Board level. The evidence the Board would review (the “record”) depends on whether you choose to have a hearing and/or submit new evidence:
- With no hearing and no new evidence, the record is limited to what was before the agency of original jurisdiction (usually your VA Regional Office).
- With a hearing, the record includes what was submitted at the hearing or within 90 days of the hearing.
- Without a hearing but with new evidence, the record includes what was submitted with the NOD or within 90 days of filing the NOD.
After the 1-year appeal period…
If you did not file an appeal of some kind within one year of your initial denial, you can reopen your claim by filing a supplemental claim (see above). However, your effective date will no longer be the original date of your claim, but will become the date VA receives your supplemental claim to reopen.
The bill refers to claims under the current appeals system as “legacy claims.” Veterans with pending legacy claims who want to opt in to the new appeals process if they receive notice of a decision on an initial claim on or after the date the Act is enacted. They can also opt in after receiving a Statement of the Case or Supplemental Statement of the case on or after the date the Act is enacted. Other than the optin provision, the bill does not really address the veterans who have legacy claims.