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Video: 9 Myths About the VA Appeals Modernization Act

VIDEO TRANSCRIPTION:

Brad Hennings:  Good afternoon and welcome to CCK live. My name is Brad Hennings. Joining me is Courtney Ross and we’re with the law firm Chisholm Chisholm & Kilpatrick. We’re here this afternoon to talk a little bit about some of the misconceptions about the Appeals Modernization Act, otherwise known as the AMA or Appeals Reform. It is the change that they made to the VA Disability Compensation System that went into effect in February of this year. So we’re going to go through some of the most important misperceptions that we’ve– or misimpressions we’ve seen based off of our own experience with the system and talking to others in this field. The first thing that I think we want to talk a little bit about is related to what they call effective dates which relate to the level of compensation you’re going to get in a retroactive payment. So, Courtney, when you file what they call a supplemental claim after you have a legacy case, can you still maintain that original legacy effective date. For example, if I file something in 2015, a claim, and I get a Board of Veterans Appeals decision today and I’m a legacy case, can I then file a supplemental claim and have it go back to 2015?

Courtney Ross:  If it is a Legacy Board decision, no. You cannot file a supplemental claim that will preserve your effective date back to 2015. If it was an AMA board decision, meaning, a board decision that’s already in what I’ll call the new systems, so under Appeals Modernization, then you have the option to file a supplemental claim and the effective date for that for as long as you file the claim within a year, will go back to whatever your initial claim was that started the appeal process up to court.

Brad:  So, we know that there’s been some misinformation out there about the ability to preserve those effective dates in legacy cases. Frankly, VA has been a little inconsistent in how it has applied this and some practitioners out there maintain that you can keep that original effective date but based off of our reading of the regulations and our experience with VA, that is not what the law currently allows for by the regulation in our reading and so, you want to be very careful. If you have a legacy case, that if you want to keep it alive after the Board of Veterans Appeals’ decision but you appeal that case to the Court of Appeals for Veterans Claims in order to preserve your earliest possible effective date. You will not be able to do that if it’s a legacy case that you filed a supplemental claim on.  Let’s move on. Let’s talk a little bit about submitting evidence. When exactly can you submit evidence under the Appeals Modernization Act? Is it anytime you want?

Courtney:  No. It’s very different from the Legacy System when you really could submit evidence anytime you wanted up until the time of the Board of Veterans Appeals issued a decision on your appeal. Under AMA, the rules are very different and the rules depend upon which review option you select. If you get an initial decision and you choose a higher-level review, you cannot submit any additional evidence. You can submit an argument but no additional evidence. If you choose to file a Notice of Disagreement to the Board of Veterans Appeals, you have three different docket options and again, depending on which docket option you select, you may or may not be able to submit additional evidence. The hearing docket and the evidence docket will allow you to submit additional evidence with certain rules about the timing and when you can do so but if you select direct docket similar to higher-level review, you will not be able to submit any additional evidence. If you choose to file a supplemental claim, you can submit additional evidence. It has to be new and relevant evidence and I think one of the misconceptions about that part of the process is whether or not you just submit new and relevant evidence at the time that you filed that supplemental claim or whether you need to have all of it at that time, kind of what the rules are for the timing of submitting it there. So, it’s our impression that when you file the supplemental claim, you do need to submit or point VA to new and relevant evidence but you also have up until the time that the VA issues a decision on that supplemental claim to submit additional evidence that you like to.

Brad:  And I believe we’ve got an infographic that I’m hoping that we’ve either had up while we’ve been discussing this or it’s going to be put up and that lays out a little bit in a graphical format what Courtney was just talking about. So, it’s really crucial to understand when you can and cannot submit evidence under the AMA because VA has indicated that it will not consider evidence that is submitted during that time period where it’s not allowed and that’s going to be important for any claim that you’ve got. Now, staying with evidence, let’s talk about the evidence standard that’s here. So, do we have the same standard of evidence under the AMA as the Legacy System like what’s this new and material evidence versus new and relevant evidence?

Courtney:  A new and material evidence was the standard under the Legacy System. New and relevant evidence is this new standard under AMA. It’s supposed to be a lesser standard than the new and material evidence. So, new means that the evidence has to not have been on record at the time the VA was previously reviewing it. Relevant means that it just tends to prove or disprove an issue that’s relevant to the veteran’s claim. But the problem with the new standard is that VA has been applying it somewhat inconsistently in adjudicating claims and appeals. We’ve seen decisions where they’re actually still referring to new and material evidence, so, using the old standard. Other cases where they’re actually adjudicating it in a way that suggests it’s a higher standard than the older standard, even though VA has said it’s intended to be a lower standard. So, there are some inconsistencies with adjudication using the new standard.

Brad:  So, I think if there’s one thing that we can already see in this discussion that we’ve had is that this is a complicated transition. And so, let me really encourage any veteran or claimant out there to consult with a veterans’ service organization like our partners at Disabled American Veterans, a VA accredited attorney or a VA accredited agent that understands the system and that can help walk you through the different choices you have to make. So, we have a question from Mike and it is for a supplemental claim. “Can you request a hearing or informal conference in addition to submitting new evidence?”

Courtney:  The informal conference is part of when you select a higher-level review for your decision, not for when you file a supplemental claim.

Brad:  How about the ability to request a hearing at the regional office level?

Courtney:  When you file a supplemental claim, I don’t believe you can do so.

Brad:  So, this is an area that is unexplored because I was going to say that I do believe you can–

Courtney: Ah, I see.

Brad:  –request a hearing at the regional office level. We tend not to do them as often. Historically they did what they called Decision Review Officer hearings. Those were common but in the Legacy System, you did have the ability to have a hearing, not before the RO but a hearing before an adjudicator at the Regional Office level. There is some question as to whether the VA is going to continue doing that in the current system.

Courtney:  Yes.

Brad:  So, moving on. Let’s talk a little bit about forms because VA has gotten very focused on forms especially in the last five years and is very insistent that veterans and claimants then potential beneficiaries fill out the right form, fill it out the right way, otherwise, they’re not going to address your claim. Are the Regional Offices now consistently accepting forms in the new system?

Courtney:  So, consistent with our theme, they’re being inconsistent with how or what forms they’re accepting for different issues. VA created all new forms under AMA for the different review options that you have under the new system but some of the old forms are still in use. So, just to give you an example to kind of put this into context. In Legacy, you could file an increased rate in claim at any point and you were never required to submit new and material evidence under that old standard or an increased rate in claim. Under the new system, if you have previously filed for an increased rating and it was denied or granted and that claim stream died out, fast forward few years and you want to file again for an increased rating starting the claim stream, again, it’s VA’s been inconsistent about whether you need to now file a supplemental claim which would require new and relevant evidence for the increased rating or whether you can still submit the 526EZ which is the claim form that VA has been using under Legacy as well. Regional offices have been accepting both forms, so again, it speaks to the inconsistency in how they’re adjudicating and how they’re accepting different forms.

Brad:  So, this goes into again a little bit about the role out of the new system but there are some bumps in the road here and it’s just something to keep in mind when you’re making your decisions. We’ve got another question and that is, “If I were to appeal my Supplemental Statement of the Case or the SSOC when I get it, does it stay in the old Legacy System. I’m not in the AMA.”

Courtney:  Yes, it does stay in the Legacy System. If you’re at the stature of getting an SOC or Statement of the Case or an SSOC or Supplemental Statement of the Case, you don’t have to opt into AMA via the form that VA requires for so you will not be automatically put into the system at the time that you get an SOC or and SSOC.

Brad:  So one of the things that the VA has been pushing in particular with the new system is choice and control but as it relates to the old system, you still have the choice and control to stay in the old system, in the Legacy System, if you feel as though that is going to be more beneficial for your claim. We’re going to talk a little bit about that later that this is not a one-size-fits-all process. Moving on, let’s talk about the law a little bit. The difference between the procedure and the substantive law here. So, the AMA has changed the way that VA claims are processed really. But has it changed the underlying law that governs veterans’ benefits?

Courtney:  No. The substance of the law itself remains the same like you alluded to. It’s just the procedural process and the different review options that you now have to decide how you want the VA to review your pending appeal but the underlying law that governs how VA should be actually adjudicating the merit of your claim or your appeal has remained the same.

Brad:  So, I think the one area where it’s little unclear how it’s all going to play out is where procedure and substance meet sort of in the middle whether intertwined particularly when it has to do with whether a particular issue is subsumed within another issue that’s on appeal and we have yet to see exactly how VA is going to handle those situations.  For example, total disability due to individual unemployability or TDIU can be raised as part and parcel to any associated increased rating claim but based off of our early returns, VA has not necessarily been treating that as part of the substantive law and they had the same issue in the Legacy System how they’re separating them out procedurally which, in our view, is inefficient and incorrect but we’ll see how all that plays out. I think we also had an infographic of the AMA process that we’re going to be putting up on the screen or we already have put up on the screen. So, please take a look at that as well.

So, let’s move on and talk a little bit about decision times because one of the things that VA has talked about the new system is that you should get faster decisions.

Courtney:  Yes.

Brad:  And that’s what veterans are very interested in and claimants are very interested in because they’ve been waiting forever in the Legacy System in many cases.

Courtney:  Yes.

Brad:  So, what’s the story with decision times? Is it faster?

Courtney:  It depends is the answer. It depends really if your appeal is at the Board of Veterans Appeals already of it is still pending with the regional office. If you’re in the Legacy System and your appeal is still pending at the regional office, it’s likely that you could wait more time to get a decision from the regional office as opposed to being in the new system if you are still at the regional office under AMA. They have been issuing decisions quicker in comparison to the Legacy System but it’s different at the Board of Veterans Appeals. So, the Board is still prioritizing legacy appeals. They want to work through them for us to kind of get through the appeals that they have in the old system. So, that’s their focus right now. So, if you have an AMA appeal at the Board of Veterans Appeals, you’re likely going to wait longer than legacy appeal that’s currently with the Board.

Brad:  In fact, the Board of Veterans Appeals inventory was low enough for legacy cases but as of last month, they were working cases with a Form 9 date of up to August 2019, which was literally a month before this was happening and that’s very unusual. That seems to indicate that the number of legacy appeals at the Board of Veterans Appeals has gone down but that continues to be their focus. They dispatched over 95,000 decisions in the fiscal year 2019 and held over 22,000 hearings during that same time period. So, they have been extremely busy. They’ve ramped up, hired hundreds of additional staff over the last few years and are really trying to pump out legacy decisions, clear out what they call the legacy inventories so they can focus on AMA cases.

Courtney:  In the event that once they start to work AMA cases, the docket that you have selected for your appeal to the Board will also have an impact on the time that you’re waiting to get a decision. So, the Board is now prioritizing the direct docket first, second day or the evidence docket next rather, and then the hearing docket, last. So, the docket that you’re in will also play a role on how long you wait for the decision from the Board.

Brad:  You just mentioned hearings. Let’s talk a little bit about hearings in the new system and a little bit in the old system as well. Is having a hearing at the Board of Veterans Appeals worthwhile? Now, we’re not talking about the regional offices before a high-level review or for a decision with a review officer or talking about at the Board of Veterans Appeals before a veterans law judge, either by video conference or in person. What are the relative merits of doing that?

Courtney:  It certainly gives you the opportunity to present your case to the veterans’ law judge, as you said, in person or via video conference. So, you get that, you put a face to the case essentially and you get to speak to the veterans’ law judge directly and kind of plead your case to that. There’s benefit in that part of it; however, because the Board is prioritizing AMA hearing cases last, if you choose the hearing docket, your likely going to wait years before you get the hearing and then before you get an actual decision even after you’ve had the hearing with the Board.

Brad:  So is that because the Board has a big hearing backlog for its legacy cases and it’s saying it’s going to go after all of those cases.

Courtney:  Absolutely. They have to get through all of the hearing backlogs that they have with the legacy cases and I don’t recall the exact number but it is a significant number of hearings in the Legacy System that they still need to work through.

Brad:  Yeah. I thought it was around at least 60,000 hearings or so.

Courtney:  That sounds right.

Brad:  Give or take. That’s a lot of hearings. So, I would guess that you’d be waiting for your AMA hearing potentially three to four to five years and then you got to wait for a decision after that. So, you could be talking about significant delays. That’s not to discourage anyone from trying to attend a hearing in the AMA at the Board; however, that’s just the reality of how long you’re probably going to have to wait.

Courtney:  One thing to keep in mind if you are currently in the hearing docket waiting, you can withdraw your docket selection and choose another one. If you do it within a year of the decision that’s being reviewed, you’re going to preserve your effective date. So, if you just got a decision and just opted into the hearing docket lane, you still have an opportunity to reselect the docket that you want assuming you haven’t had your hearing yet.

Brad:  So, if you were to do that, then you potentially get a faster decision or likely get a faster decision.

Courtney:  Yes.

Brad:  Okay. Let’s talk a little bit about the decision format that they’ve got, that VA has come out with as part of the AMA. It’s this new decision notice where it’s supposed to have identified a bunch of elements related to every case and every claim. In particular, it’s supposed to identify what they call favorable findings. What are these favorable findings and why does this matter?

Courtney:  Yes. Favorable findings, I’ll give an example to kind of put it into context. Let’s say a veteran has a claim pending for service connection for PTSD and the VA issues a rating decision denied service connection but in that decision, they can see that the veteran stressor occurred, the stressor that the veteran is claiming. That’s a favorable finding that the VA has made in that decision. Under AMA, any favorable finding in the decision, future VA adjudicators are bound by that favorable finding. If they are going to rebut it, they have to do so by clear and unmistakable evidence which is a high standard to meet. The inconsistency that we’ve seen with how VA is dealing with favorable findings and decisions is that one, they’re not listing them. Sometimes you’ll see a decision, you got a rating decision and the narrative will have a few paragraphs explaining the decision and then they’ll write favorable findings and underneath there, they’ll write no. However, in the narrative part of the decision, they actually have stated favorable findings. Using that example I just gave, they’ve acknowledged that the veteran’s stressor occurred but then they list it on under unfavorable findings. That’s part of the issue and inconsistency we’ve seen with how VA is actually applying this in the new decisions that they’re issuing and I think, one thing that’s going to be really important for veterans and advocates is to make sure that you’re holding VA responsible for the favorable findings that they’re including in their decision. So, even if it’s not listed under what heading a favorable finding says, if there’s something in the narrative that is a favorable finding, you want to point that out to VA and make sure that future adjudicators are bound by that.

Brad:  Yeah. I think that’s a really good point and that’s a really powerful piece of the new system are these favorable findings. Unfortunately, as we’ve seen, there has been some inconsistency on how they’ve been addressed or employed so again, I think, Courtney’s right that you want to help hold VA accountable, help hold the adjudicators accountable for complying with the new law.

So, finally, after all these discussions of sort of misconception, pros cons, so is the Appeals Modernization Act, appeals reform, is it better than the Legacy System as VA has said? Is it worse? What’s the truth?

Courtney:  I think you alluded to this before and the answer is really that it’s not one-size-fits-all. So, it really is dependent upon the facts of your case, the history of your case, where your appeals are already pending. We’ve mentioned a few times throughout this presentation that the Board’s prioritizing legacy appeals and you’re likely to get a quick decision at the Board. If you have a legacy appeal that’s already pending at the stage where it is certified by the Board, you may not want to opt in to AMA even though you got a quicker decision from the regional office. It’s not one-size-fits-all. It’s not easy to answer yes, the Legacy System is better. Yes, AMA is better. It’s really just dependent upon the facts of your case and where your case is at.

Brad:  And just as a general rule of thumb, I would say and again as Courtney said, we’re not giving legal advice for your particular case and it’s very fact-specific. Generally, if you need additional evidence to add to the file, the AMA is going to probably be a better option because it allows you to continue to add evidence even as you lose so you can sort of help VA narrow the issue until you figure out what the key piece of evidence that you need to submit is. However, if VA is just getting something wrong, they’re just making, let’s say, a legal error, I’m not so sure that the AMA is the way to go because you can submit evidence as long, forever but they’re still getting the law wrong. That’s not going to help you, then you might be better served by staying in Legacy and then going on appeal in the Court of Appeals for Veterans Claims ultimately if you can’t get it resolved with VA itself.

So again, let me strongly encourage folks to consult with either a veteran service organization. Some of them like our friends and partners at the Disabled American Veterans, a VA accredited attorney like we are and like many others are, or VA accredited agents to walk through about and talk through what’s going to make the most sense for your particular case.

Thank you all for joining us today. Again, I’m Brad Hennings.

Courtney:  I’m Courtney Ross.

Brad:  And we’re with Chisolm Chisolm & Kilpatrick. This is CCK live. We hope everyone has enjoyed this and don’t forget if you have any questions, please reach out to us on Facebook. Reach out to us on our website at cck-law.com and we hope to see you all soon.