Veterans’ Appeals Reform
On August 23, 2017, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Reform) was signed into law. Appeals Reform was officially implemented on February 19, 2019. The Act is aimed towards restructuring the entire VA disability appeals process in order to simplify and streamline the parts of the current appeals process for VA disability compensation claims that typically increase wait times. Additionally, the Veterans Appeals Improvement and Modernization Act intends to provide veterans, their families, and their survivors increased choice in handling disagreements with VA’s decisions. Specifically, the new system allows veterans to choose from three different review options, or lanes, when filing an appeal:
- Higher-Level Review Lane. By choosing this lane, veterans are requesting that the Regional Office (RO) issues another decision based on a higher level of review. This review is conducted by a more experienced rating specialist at the Regional Office who evaluates the veteran’s claim de novo (i.e. new look). The higher-level reviewer has the ability to overturn a previous decision based on a number of factors including a clear and unmistakable error (CUE). In this lane, veterans are not allowed to submit additional evidence in support of their claims. Instead, the RO will issue a new decision based on the same evidence of record that was available at the time of the prior decision.
- Supplemental Claim Lane. This lane allows for the submission of new and relevant evidence. Furthermore, it is the only lane in which VA has a duty to assist veterans in gathering evidence to support their claims. Importantly, veterans will maintain the same effective dates for their claims when submitting new and relevant evidence as long as the supplemental claim is submitted within one year of the RO’s initial decision. Veterans can also submit a claim with new and relevant evidence after receiving an unfavorable decision from the higher-level review process.
- Notice of Disagreement Lane (i.e. Appeal to the Board of Veterans’ Appeals). In this lane, veterans can appeal their cases directly to the Board following an unfavorable decision from the RO, or an unfavorable decision in either the higher-level review track or supplemental claim track. Here, veterans are able to skip the second level of review at the RO. There are an additional three lanes at the Board that veterans can choose from: the direct docket, hearing docket, and evidence docket (see below).
- Direct Docket. 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 only look at the evidence that was in the veteran’s file when the appealed decision was issued. VA has set a 365-day goal for issuing decisions in the direct docket Board lane, which is projected to be the fastest amongst all three options.
- Hearing Docket. For veterans who want to have a hearing before a Veterans Law Judge. The only hearing options available to veterans under appeals reform include a videoconference hearing and a hearing at the Board in Washington, D.C. Travel board hearings, held by Veterans Law Judges at ROs, will only be available to veterans in the Legacy Appeals system (i.e. the old appeals system).
- Evidence Docket. For veterans who want to submit additional evidence, but do not want a hearing. In this lane, veterans can submit additional evidence to the Board with their Notice of Disagreement (NOD) and within the 90 days following their NOD.
Motivation Behind the Veterans Appeals Improvement and Modernization Act of 2017
Generally speaking, VA’s total restructuring of the appeals system was prompted by the current system’s overall complexity and inefficiency. VA is unable to keep up with its workload while serving veterans in a timely manner. The number of claims received increases every year, adding onto the current VA backlog.
In the current Legacy system, there is no defined endpoint or timeframe in regards to processing appeals. Instead, it features an open record and ongoing duty to assist. Such continuous evidence gathering and readjudication prolongs VA’s ability to reach a final decision. For example, in Fiscal Year 2016, it took an average of seven years from the date a Notice of Disagreement was filed to eventually receive a decision from the Board. Additionally, VA recognizes that the current system is too complicated as it contains too many steps and is difficult to communicate with veterans. The new appeals framework intends to address the above-mentioned issues by implementing an understandable review system that leads to the earlier resolution of disagreements.
What You Need to Know
Q: When will the new appeals process take effect?
Appeals Reform was fully implemented on February 19, 2019. Veterans who receive unfavorable decisions on or after that date will be required to participate in the new system in order to continue with their appeals.
Q: How do I opt in to Appeals Reform?
Claimants are able to leave the Legacy appeals system and opt in to Appeals Reform after receiving an initial decision, a Statement of the Case, or a Supplemental Statement of the Case. To opt in after receiving an initial decision, claimants must select either the supplemental claim lane, higher-level review lane, or NOD lane within one year of the date VA issued the initial decision. If claimants would like to opt in after receiving either a Statement of the Case or a Supplemental Statement of the Case, they will have to do so within 60 days of the date VA issued its decision. Since Appeals Reform wascompletely enacted on February 19, 2019, there is no longer be an opt-in requirement, as it is the only way to appeal an unfavorable decision received on or after that date.
Q: Can claimants return to the Legacy appeals process after opting in to Appeals Reform?
Similar to RAMP, once a claimant opts in to the new system the decision is permanent and he or she cannot return to the Legacy appeals system. Specifically, the switch triggers VA to formally withdraw claimants’ claims from the old system and process them in the new system. Additionally, all requests for review of VA decisions will be processed under the new, multi-lane process.
Q: Can I switch lanes under Appeals Reform?
Claimants can change their request for a certain review option at any time prior to VA issuing a decision on their claim. If the claimant’s lane 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. For example, a claimant who received a denial of benefits and appeals via the higher-level review lane, but then discovers new and relevant evidence, could withdraw from the higher-level review lane and request that his/her appeal be moved to the Supplemental Claim lane for review. Receipt of an unfavorable decision also presents an opportunity to change your appeal lane. For example, a claimant can submit a supplemental claim with new and relevant evidence after receiving an unfavorable decision from higher-level review, even though he or she did not select the supplemental claim lane to begin with.
Q: Can I switch dockets at the Board of Veterans’ Appeals?
Claimants are also permitted to switch dockets at the Board level by modifying their Notices of Disagreement. In creating this policy, VA sought to provide claimants with an opportunity to change their initial election if their circumstances and preferences changed. However, VA also wanted to prevent claimants from unfairly gaining the advantage of two dockets. For example, at the Board level, claimants will not be permitted to take advantage of the faster direct docket if he or she has already submitted evidence or testified at a Board hearing. Therefore, VA proposes to limit the time period in which claimants may request to modify their Notices of Disagreement.
Under Appeals Reform, this request to modify must be made within one year of the agency of original jurisdiction decision on appeal, or 30 days after the Notice of Disagreement is received by the Board, whichever is later. As indicated above, the request will be denied if the claimant has already submitted evidence or testimony.
Q: Is RAMP going to end?
RAMP will be formally phased out following the recent implementation of Appeals Reform on February 19, 2019. Check out our blog and video “Revisiting RAMP” for more information on how the pilot program works.
Main Differences Between the Legacy Appeals System and Appeals Reform
Under Appeals Reform, there are several important differences between the old and new appeals systems:
- VA’s Duty to Assist. The duty to assist requires VA to gather information that may help develop and support the veteran’s claim, such as service personnel records and VA medical records. The new regulations under Appeals Reform limit VA’s duty to assist veterans insofar as it is only required when a veteran files an initial claim for benefits, and when a veteran files a supplemental claim with new and relevant evidence. The duty to assist no longer applies to the Board, meaning the Board will no longer be obligated to remand decisions for the purpose of developing additional evidence for the claim.
- New and Relevant Evidence. The Veterans Appeals Improvement and Modernization Act of 2017 changes the language of VA’s standard of evidence from new and “material” evidence to new and “relevant” evidence. Importantly, this new standard will not impose a higher evidentiary threshold than the former. In this case, VA defines “new” evidence as evidence that was not previously submitted to VA. “Relevant” evidence is evidence that tends to prove or disprove a veteran’s claim. An example of “new and relevant” evidence may include service records related to an in-service event to establish service connection.
- Effective Dates and Final Decisions. In the new appeals system, effective dates are based on the date of the substantially complete initial claim, the date of the supplemental claim if filed more than one year after a final decision, or the date entitlement arose. If continuously pursued, the effective date is preserved. 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 main difference under Appeals Reform is that veterans will always have one year to appeal no matter what type of decision they receive if they choose to file a supplemental claim with new and relevant evidence. When a decision becomes final, veterans will lose their effective dates since the claim will no longer be continuous.
- Favorable Findings. Favorable findings made by an adjudicator during the claims process would be binding on all subsequent adjudicators (within the VA system), in the absence of clear and unmistakable evidence to the contrary. Favorable findings will also be outlined in decisions issued under Appeals Reform.
For more information regarding the new appeals system, watch our video below:
Navigating the System
If you are appealing an unfavorable VA disability decision, understanding the VA Appeals Process is paramount. Our skilled VA disability attorneys studied this new VA Appeals Process long before it was implemented. We may be able to help you navigate this new, complex system. Contact our office for a free consultation today at (800) 544-9144.
More Reading on the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Reform):
New VA Appeals Process. An overview of the new appeals system.
Filing a Claim for VA Disability Benefits Under Appeals Reform. To learn more about how to file claims and appeals within the new system.
Why Reform the Appeals System. For a deeper look into VA’s motivation behind Appeals Reform, including problems with the current Legacy appeals system.
VA Appeals Reform Deadlines. A breakdown of Appeals Reform deadlines and available lane options to choose from when appealing unfavorable decisions.
Appeals Reform: Board of Veterans’ Appeals Board 2.0 – Every Decision Matters. An explanation of the Board of Veterans’ Appeals top priorities under the new appeals system.
Appeals Reform: How Implementation Will Affect Pending Claims and Appeals. Provides insight regarding the ways in which the implementation will affect claims and appeals that are currently pending in the Legacy appeals system.