On August 10, 2018, VA released its proposed regulations for Appeals Reform. The Veterans Appeals Improvement and Modernization Act was passed in August 2017, and is set to go into full effect as early as February 2019. We looked at the proposed regulations to see what VA is changing and how veterans might be impacted by the new regulations.
Background: The Three Lanes and RAMP
Under Appeals Reform, veterans can opt in to three different lanes following an initial decision on a claim. The three lanes are:
- Supplemental claim lane
- Higher-level review lane
- Notice of Disagreement lane (appeal to the Board of Veterans’ Appeals)
Currently under RAMP, the Rapid Appeals Modernization Program (a pilot of Appeals Reform), only the supplemental claim and higher-level review lanes are open to veterans. Once Appeals Reform is fully implemented, all three lanes will be open, with additional lanes at the Board of Veterans’ Appeals.
1. Can veterans change lanes before VA issues a decision on the appeal?
According to VA’s new regulations, yes. Veterans can withdraw their request for a certain review option at any time prior to VA issuing a decision on their claim. If the veteran’s withdrawal occurs within the one year period following the date VA issued the decision being reviewed, the claimant can choose another review option and their effective date will be preserved.
2. What options do veterans have at the Board of Veterans’ Appeals?
Under the proposed regulations, there will be three lanes that veterans can choose from to appeal a decision for VA disability compensation. Two of these three lanes are open to veterans under RAMP: the supplemental claim and higher-level review lanes. However, RAMP did not include the option of appealing to the Board of Veterans’ Appeals, called the Notice of Disagreement lane. VA proposes three further options for veterans at the Board. We took a look at all three:
- Direct Docket. The Direct Docket, as VA refers to it in the proposed regulation, will be for veterans who do not want to submit additional evidence to the Board, and do not want a hearing before a Veterans Law Judge. In this docket, the Board will look only at the evidence that was in the file when the appealed decision was issued.
- Hearing Docket. As the name suggests, this docket is for veterans who want to have a hearing before a Veterans Law Judge. The proposed regulations state that the only hearing options available to veterans in the new system will be a videoconference hearing and a hearing at the Board in Washington, DC.
- Travel Board hearings, those held by Veterans Law Judges at the local Regional Offices, will only be available to veterans in the Legacy appeals system. Legacy appeals are those that were filed under the old appeals system. The Legacy appeals system is still in use, and all claims that are filed until Appeal Reform goes into effect will be filed in the Legacy system.
- Evidence Docket. The final docket is for veterans who want to submit additional evidence but do not want a hearing. In this docket, veterans can submit additional evidence to the Board with their Notice of Disagreement and within the 90 days following their Notice of Disagreement.
3. The duty to assist only applies to initial claims and supplemental claims.
The new regulations limit VA’s duty to assist veterans in their claims to only the initial claim and the supplemental claim. VA’s duty to assist requires VA to help veterans in the development of their claims by gathering information that will support a veteran’s claim for benefits. The duty to assist also requires a compensation and pension examination in some circumstances.
Under VA’s proposed regulations for Appeals Reform, this duty to assist will only be required when a veteran files an initial claim for benefits, and when a veteran files a supplemental claim with new and relevant evidence (more on this later). In the Legacy system, the Board can remand claims back to the Regional Office if the Regional Office did not fulfill its duty to assist or if new evidence is necessary to develop the veteran’s claim.
However, under the Appeals Reform regulations, the duty to assist no longer applies to the Board, and this means that the Board will no longer be able to remand decisions for the purpose of developing additional evidence for the claim. The Board will be able to remand claims if the Regional Office did not fulfill its duty to assist, but the Board itself will no longer have a duty to assist to veterans by remanding for additional evidence. If the Board finds that the Regional Office made a duty to assist error, it can remand the case and instruct the Regional Office to fix that error. What happens if the Board denies a claim?
Under the proposed regulations, if the Board denies a claim, the veteran has two options: submit a supplemental claim with new and relevant evidence, or appeal to the U.S. Court of Appeals for Veterans Claims (CAVC). Veterans will not be able to request higher-level review or another review by the Board for their Board decision. The process for appealing to the CAVC is the same as under the Legacy appeals system: veterans will have 120 days from the date of the Board decision to appeal their decision to the CAVC.
When a veteran receives a decision from the CAVC, for example if CAVC denies their claim, there are two options again: filing a supplemental claim with new and relevant evidence at the Regional Office, or appealing to the U.S. Court of Appeals for the Federal Circuit. A veteran cannot request Board review or higher-level review of a CAVC decision.
4. When do VA decisions become final?
Similar to the Legacy appeals system, the new Appeals Reform regulations include guidelines for when a VA decision becomes final. Under the Legacy system, decisions became final when the appeal period for that decision passed without the veteran filing the appropriate appeal. The new regulations are similar: a decision will become final if the veteran does not appeal the decision within one year of the date of the decision. The main difference between the Legacy system and Appeals Reform is that veterans will have one year to appeal no matter what type of decision they receive, whether it be a higher-level review decision, a Board decision, a supplemental claim decision, or even a CAVC decision.
When the decision becomes final, veterans will lose their effective date since the claim will no longer be continuous.
5. VA defines “new and relevant” evidence for supplemental claims.
Under Appeals Reform, Congress changed the standard of evidence from “new and material” to “new and relevant.” However, VA’s proposed regulations state that the “new and relevant” standard “will not impose a higher evidentiary threshold” than the former “new and material” standard.
According to VA, “new” evidence is evidence that was not previously submitted to VA. “Relevant” evidence is “evidence that tends to prove or disprove” the veteran’s claim. Some examples of this can include service records or photos that are related to an in-service event that a veteran needs in order to establish service connection; or a statement from a fellow service member that helps corroborate a stressor for a claim for post-traumatic stress disorder or corroborate an in-service incident.
Similar to the Legacy system, when a veteran submits a claim with new and relevant evidence, VA will make a determination as to whether the evidence submitted is new and relevant. If it decides that the evidence is new and relevant, it will then adjudicate the veteran’s claim on the merits.
6. What veterans need to know when filing a supplemental claim.
Supplemental claims are those submitted with new and relevant evidence (discussed above). When veterans submit a supplemental claim, there are a few things they should know about VA’s proposed regulations.
- There will be a specific supplemental claim form that a veteran must use to file his or her supplemental claim.
- If a veteran files an incomplete supplemental claim, VA will consider the claim to have been filed on the date they receive the incomplete form, as long as a complete supplemental claim is submitted within one year of the incomplete form. This means that a veteran can preserve their effective date as long as they submit a completed form within one year of the incomplete form.
- A complete supplemental claim is that which identifies or includes the new and relevant evidence. This will trigger VA’s duty to assist.
- If a veteran files a supplemental claim after a prior VA decision becomes final, the veteran’s new effective date will be the date the supplemental claim was received, or the date entitlement arose, whichever is later.
7. What veterans need to know when filing for higher-level review.
Another of the three lanes veterans can choose from is higher-level review. Higher-level review is where a higher-level VA employee will review the veteran’s claim and issue a new decision, or send it back to the prior decision-maker to correct any errors they find. Here are some things veterans should know about higher-level review:
- When a veteran requests a higher-level review of a previously made decision, their case will be reviewed by a different experienced VA employee who did not participate in making the prior decision. Higher-level reviewers will also, generally, be located in a different office than the one that issued the veteran’s prior decision.
- Veterans are not able to submit additional evidence in this lane. Higher-level review is based on the same evidence of record on which the prior decision was made.
- Veterans can request an informal conference with a higher-level reviewer in which they can point out any specific errors they believe VA made in their prior decision. However, veterans cannot introduce new evidence or new facts during the informal conference.
- If a higher-level reviewer finds a duty to assist error during their review of the veteran’s claim, the claim will be sent back to the Regional Office that made the prior decision in order for the error(s) to be fixed. However, a higher-level reviewer will not send the claim back in this case if they can otherwise grant the maximum benefit to the veteran.
8. When will veterans be able to opt in to Appeals Reform?
According to the proposed regulations, veterans will be given the option to leave the Legacy appeals system and opt in to Appeals Reform (after it becomes effective) when they receive a Statement of the Case or Supplemental Statement of the Case. If a veteran wishes to opt in at this point, they will have to do so within 60 days from the date VA issued their decision.
One year after Appeals Reform goes into full effect (February 2019 at the earliest), VA will stop accepting Notices of Disagreement for Legacy claims, which will require veterans to partake in Appeals Reform if they wish to continue their appeal.