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Appeals Modernization Data and Results for Veterans

Brad Hennings:  Welcome to Chisholm Chisholm & Kilpatrick, CCK Live. My name is Brad Hennings. I’m here with Emma Peterson and Lindy Nash, and we’re here to talk today a little bit about the Appeals Modernization Act data and results for veterans. Now, this is involving VA disability compensation and what’s also been known as Appeals Reform. So, welcome. If you have any questions, please let us know what those questions are on Facebook or visit us at our website at cck-law.com. So, let’s just jump right into everything now that we’re here in the month of November. So, what is the Appeals Modernization Act? When was it launched? Why does it exist?

Emma Peterson:  Sure. So, in February 2019, February 19th, to be exact, the Appeals Modernization Act went into effect. So, all decisions, rating decisions, initial decisions decided after that date are in this new AMA system. The point of the new system according to VA and point of the legislation is to give veterans choice and control over how their appeals are processed. It gave them a number of new appeal options as opposed to the traditional options that have been in place for years and years and years, in what we’re calling the Legacy System. So there are legacy claims which are still active and working and follow the old rules of procedure. You file and those disagreements with your rating decision, you get a statement of the case a VA-9, appeal to the Board of Veterans Appeals. But now under the AMA, all new decisions coming out after February 2019, are in this new system and all veterans can pick a lane a docket, all kinds of things we’ll get into and have covered in the past. So certainly be sure to check out our website and prior CCK Lives for those details. But that’s really when it went into effect.

Brad: So, all veterans are not automatically enrolled into this Appeals Modernization Act. Can you talk a little bit about what legacy claims are and how you get in, aside from having a decision issued after February 2019?

Lindy Nash: Sure. So as Emma just mentioned a little bit, a legacy claim would be something you’re more familiar with. So maybe you filed it several years ago, you got your rating decision, and you filed the NOD, followed by the SOC, you filed the VA-9, maybe you got an SSOC, and then a board decision. So that was kind of the typical legacy claim stream. So now that we’re in– well, let me back up. So, if you’re in legacy, and you get an SOC, so you get an SOC today, you are able to opt into the AMA, into the new system, and there’s a box that you can check, and you can fill out a new form, picking a lane in AMA and getting into the new system that way. So it’s up to you. You can stay in a legacy if you’d like. You can file your VA-9 and go to the board and stay in legacy or you can opt into AMA after you receive an SOC or an SSOC, and that will be the way that you get into AMA. And again, you’re able to pick a lane, and I think we’ll talk more about the lanes in a second, but that is kind of the difference between legacy and the new system and how you can get into the new system if you would like to be there.

Brad: So, when you’re saying SOC, and SSOC, that stands for statement of the case and a supplemental statement of the cases? Is that correct?

Lindy: Yep, exactly.

Brad: Okay. Great. So, Emma, how does this new Appeals Modernization Act work? What are they can, say it.

Emma: It’s the big question. I’ll try to give it a small answer. So, essentially, you have a couple of choices. So, you file your initial claim, or let’s say you’ve opted-in. They’ll get an initial decision from the regional office, very similar to a rating decision. It’s the same thing, a couple of key features that have been added on. They’re going to tell you favorable findings they’ve made that will be binding on VA for the rest of that claims stream, but you’ll get that first. You then have the option to file a supplemental claim, which is you’ve got new evidence, you want to the RO to look at it again. You can ask the RO to do a higher level of review, which would be to just look at everything that’s already in your file. It’s sort of similar to the DRO, decision review officer process that has been in place in the past. Or you can file a notice of disagreement, taking your case up to the Board of veterans appeals, eliminates the whole NOD statement of the case, VA-9, I really mean it this time I want to appeal to the board, number of form process waiting for to be certified, and so on and so forth.

And at the board, you actually have three more options. You can pick the evidence docket, same thing, you’ve got more evidence, you want the board to consider it. You can pick the hearing docket if you want a hearing, or you can pick the boards direct review docket, which is you’re just going to get everything the RO did, all the evidence and the file. So again, it gives you choices at each level. It allows you to stay at the RO if you think that just a small thing you want fixed or something that your regional office can handle, or if you’d like to go up to the Board of Veterans and Appeals, you certainly can do that. And from there, the court is always an option. So, that’s still part of the process of the sort of legacy of system of going from the Board of Veterans Appeals to the court of appeals for veterans claims still exists, and that hasn’t changed.

Brad: Okay. So, let’s talk a little bit about what was RAMP or the Rapid Appeals Modernization Program, and when did it end, what’s the story with that Lindy?

Lindy: Sure. So RAMP was actually a pilot program that VA rolled out, if you will, before AMA even started. So they wanted to give veterans a chance to opt in to this new system early, try it out and see all the new options that were available to you. So before AMA started, RAMP was an option and it actually ended when AMA started. So February 19th, 2019, was the last day for RAMP. So, sometimes you may– maybe you opted into RAMP, and you’re just recently getting your RAMP decision. Sometimes we have clients and we get decisions and realize that they opted into RAMP a while ago. So, that could still be the option but RAMP was something that was available to prior to AMA starting but pretty much had the same options as AMA, very similar.

Brad: Okay, so let’s talk a little bit about some of the numbers that are associated with all this. About how many veterans were receiving VA compensation in 2019?

Emma: So just under 5 million veterans are receiving VA compensation in year 2019, totaling around $22.5 billion in benefits, so it’s definitely a large, large system. And so, trying to fix the delays, speed line the process, sort of as the whole goal of AMA when you’ve got that many people in a system. Now, obviously, not everyone, all 4.5– 4.9 million of those people are in an appeal situation some people are just getting the benefits and receiving them and are content. But obviously, you see the large numbers that VA’s dealing with that was sort of the idea behind the AMA.

Brad: So for years, there’s a lot of discussion about the claims backlog within the VA disability compensation system. And as I understand it, that claims backlog has been winnow down, so there is really no or it’s a very small backlog on the initial claim side. So, how many claims has VA actually been decided?

Emma: So for this last quarter, they decided just under 400,000 claims, so 373,000 370,009 claims in this last quarter and they’ve exceeded their goals on that. So they certainly are moving things along. I think that just sort of– I’m trying to get the word, just hearing a response from our clients and from veteran system. They certainly are and that just what we see coming in house, decisions are coming out faster than they used to, much faster. So VA is clearly moving things along. They had a 125-day goal to complete those initial claims and they’re doing that in 96. So things are certainly moving.

Brad: So things are certainly moving but this is for initial claims. This isn’t necessarily for appeals.

Emma: Correct.

Brad: Sometimes when it’s moving, it just means that you’re getting a faster denial. Is that correct?

Emma: I would agree with that statement.

Lindy: Yeah. That’s safe to say.

Brad: So let’s talk a little bit about the legacy cases. So, what is the VA’s legacy inventory right now in terms of their appeals?

Lindy: Yep. So I believe that there’s about 148,000 NOD legacy appeals that are remaining as of a few months ago. So that’s still a pretty decent number of appeals that VA is trying to work through and a pretty good size amount of NODs that the VA is working through. But yeah, it’s our understanding that there’s about 148,000 NODs pending.

Brad: And that’s just at what they call the notice of disagreement stage, is not including cases that are waiting for a VA form nine substantive appeal, which I think we’re about 13,000—12 or 13,000. And it’s not including the cases that are sitting at the Board of Veterans Appeals waiting to be decided, which I believe their total inventory, although they’re not able to work all that is over 100,000, might be 120,000, give or take that are sitting there but still need to be worked on as well, including cases where veterans are waiting for hearings. Which I believe they’re 60 or 70,000 cases or veterans waiting for hearings in the legacy system. So, let’s talk a little bit about what VA’s plans are to resolve the legacy appeals because one of the commitments when the new legislation was passed the Appeals Modernization Act, it was that, “Hey, we’ve got this great new system, but we’re going to prioritize the old cases because veterans have been waiting a long time.” So, can we talk a little bit about what the plans are and the timeline for resolving these legacy appeals?

Lindy: Yeah. So, I believe the timeline right now is to resolve those by 2020. So basically, the board plans resolve all non-RAMP– non remanded legacy appeals by 2020. And then they’ll further say that they want to get rid of all appeals altogether by 2022. So we’re unsure if that will happen, but that is what they are saying, and that’s what they’re predicting and hoping for. So, we’ll see if that works out, but based on their timing and their estimates, and their approximations, they say that it’ll all be through with legacy appeals by 2022.

Brad: So I find that to be a very optimistic goal because the remanded cases often take quite a bit of time. And it’s not necessarily including cases that have been appealed to the Court of Appeals for Veterans Claims. Or Court of Appeals for the Federal Circuit and have to come back. So again, that seems a bit aggressive.

Emma: Right. So, as we talked about 13,000 in form nine inventory, that would be cases that are going up to the board would need to be completed by next year. And that’s assuming that none of those need to be remanded back for procedural error or VA needs a new exam, the veteran asked for hearing it was missed, anything, like any number of reasons cases get remanded. And then assuming that within two years everything that’s already been remanded and is going to be remanded in the future can be cleared out. And just due to the scheduling nature, I think at regional offices and VAMC’s, how are they going to get all these C&P exams done when they don’t have the staff to complete them now, it seems like a pretty tight deadline.

Brad: So it sounds like they have a plan, they have a timeline for resolving the legacy appeals. But it seems aggressive and maybe a little optimistic, so we’ll have to wait and see whether they can deliver on that. So let’s switch over to the AMA, the Appeals Modernization Act, and let’s talk a little bit about how that’s been going so far and what kinds of appeals folks are filing under the AMA.

Emma: So I’d say most people have been filing supplemental claims. So, our numbers show about 75% have– people have been filing that supplemental claim lane. And that’s the lane of a regional office that allows you to submit additional evidence after you get that initial decision. I think it might also account for some people we might have hit this in the Facebook Live a few weeks ago, some people withdrawing and canceling their legacy appeals and then just filing a new claim because they’ve heard that maybe they’ll get a decision faster. You certainly should talk to your VSO or your attorney or accredited rep about what you’re going to do and the benefits and pros and cons of that. But that’s where most people seem to be navigating is to supplemental claim lane because they’ve got something new. They have the decision saying, “You’re missing a diagnosis, though I can go to my doctor tomorrow and get a diagnosis.” So that’s where most people are sort of funneling into. Then the other 20% or so are opting into that higher-level review, which is just basically asking the regional office to take another look. There might have been a legal mistake or just something was overlooked, and there is an option for a very informal conference with that lane.

Brad: Okay.

Lindy: And one of the great things about AMA and opting into one of these lanes is that the we found that the wait times are actually pretty short. Not to say that it’s always a decision that you agree with are always a favorable decision, but we found that for supplemental claims, people are getting decisions within about 60 days. And for higher-level review, they’re getting them in about 40 days, which is really great. I think their goal was for 125, and so to hit 60 and 40 is pretty awesome to cut that in half. So, you are getting a quick decision in those lanes, again, to be determined if that decision is something favorable and something that takes into account everything you’ve submitted, and the law and the regulations, but you are getting a quick turnaround.

Brad: But I think that I would imagine that also means that for many cases and I know in our firm that’s the case we have to take things to the Board of Veterans appeals, so rather than resolving it at the regional offices, it has to be appealed with a notice of disagreement to the Board of Veterans Appeals.

Lindy: Right, yes.

Emma: And at least we’re knowing faster why VA is denying or that they’re going to deny it, we’re not having to wait two, three years to get a denial and then appeal. So, at least you might know a little bit faster why VA is denying your claim. Again, they should outline for you and if you’re not getting this, as might be grounds for an appeal in itself, but you should be getting a decision explaining to you exactly why you’re getting denied in clear in sort of bullet-point format.

Brad: This is the improved decision notice that they claim would be part of the appeals modernization Act. Have we found the notice to be improved?

Emma: It’s hit or miss at this point. I’ve seen some that have been very clear, these are the favorable findings, this is what’s missing and it really lays it out. And I’ve seen others that look awfully similar to rating decisions and board decisions of the past.

Lindy: Yeah, I agree. Sometimes you’ll get a decision and you’ve submitted a lay statement or an expert opinion, and you see it listed in the favorable findings. So, you think, “Oh great, they’ve taken this into account.” And they don’t always do so or they’ll give reasoning as to why it’s not enough. So, I think sometimes that notice requirement is there and other times it’s not. It is like Emma said hit or miss.

Brad: Just again, this is Brad Hennings with Emma Peterson and Lindy Nash, and we’re here talking about the Appeals Modernization Act data and some of those results for veterans. Please, ask us any questions there on Facebook, or if this is after the fact hit us on Facebook or at our website, cck-law. com. In addition, I just want to make clear again and Emma talked about this before, and that is that these are complicated decisions about whether staying in legacy, whether to go to AMA. So please, speak with your accredited Veteran Service Organization, VA accredited attorney or VA accredited agent before You make any decisions as to your VA claims because I think it really will benefit your choice. So that being said, let’s talk a little bit about the Board of Veterans Appeals because we were talking about that. So, how many decisions has the board of veterans appeals– did they decide in the last fiscal year ending at the end of September?

Lindy: So, they decided about 95,000 claims last year, or this year, excuse me, and that actually exceeded their goal by 5000. So they were issuing a lot, they were really cranking out those decisions. Again, whether they were perfect or not, TBD, but, they were issuing a lot of decisions and we did see a really quick turnaround. Once we filed a VA-9, sometimes it would be as soon as a month later where we get a board decision. So they were working on them, cranking them out.

Brad: And just to give everyone an idea of how significant that is, the Board of Veterans Appeals as recently as about four years ago was issuing 35-38,000 decisions. So there’s a significant increase and the Board of Veterans Appeals staffing has gone from around 540 full-time employee equivalents to around 1250, so they have more than doubled. So, this is good news for veterans who’ve been waiting a long time.

In addition, they held a huge number of hearings in comparison. So the hope that that hearing backlog will that go down now since they seem to be prioritizing hearing cases?

Lindy: Maybe.

Emma: Always the safe response to the VA.

Lindy: I hope so. Yeah. It’s always– I feel as though when you request a hearing, you’re signing up for a little bit of a wait, there is a backlog there and even in the new system, when you request a hearing you are– you should expect to wait around a little bit with the hearing lane, but in theory, they should go down.

Emma: And I think we even saw that in some of the RAMP invitations. Often invitations it specifically said, “Listen, if you pick a hearing, you’re going to wait.” I think they do warn you in the letters they let you know that if you do pick this option, you will be in a line, a lengthy line.  But like Brad said, they were holding a lot more hearings, 38% increase from last year. So that’s certainly good news because I know a lot of veterans do want an opportunity to talk to a board member, explain why they think their case has been decided wrongly and that’s really important to a lot of veterans out there. So, it’s good that they’re moving those along because it’s hard I think to wait three, five years for a hearing, evidence gets stale, your memory doesn’t hold the facts as well as it used to, so it’s definitely a certain important initiative.

Brad: And VA has made clear that cases under the AMA or in the AMA Appeals Modernization Act, with hearings at the board will be decided last. They’re going to the very end of the line. So, you’re could be in for significant delay, significant wait if you’re choosing the hearing under the AMA at the Board of Veterans Appeals, and that’s really important for everyone to understand. So let’s talk a little bit about what the future goals for VA are? What are they looking at doing here in the next year or so?

Emma: So I think one of the big steps they’re gonna take is deciding all of the Blue Water claims. Now, they may not be actually making a final decision, there might be some remands involved in evidence development, but after the Federal Circuit case Procopio, and then Congress enacting the Blue Water legislation that becoming law, all the Vietnam Navy veterans that benefit from that there, within that 12 nautical miles of the shores of Republic of Vietnam. If they had a case that was pending at VA, that was stayed by the Secretary until next January, which is coming up faster than we know it. I can’t believe we’re already this far into November. So they’re going to start deciding those cases in January 2020 whether that be your case was at the board and you’ve got a notice from the board saying, “All right, we’re going to decide these three claims, but your service connection for diabetes needs to be stayed, and then once the stay is lifted we’re going to pick it right back up, or you’re at the regional office. But if you had been granted that before this day, that will still go into effect. But those cases are sort of I think, next in line for the board and Ro to tackle.

Brad: Okay, so we’ve got a question. And the question is, do you know if a supplemental claim goes to the same level of VBA employee as an original claim? Or is it a special group of VBA employees?

Emma: My understanding is the supplemental claim goes to the same level as an original claim. It’s that higher level of review that gets you to a more senior seasoned person who was not involved in your original decision.

Brad: Okay. So, have we been seeing– Lindy, have we’ve been seeing our client’s claims decided within this 125-day goal that VA has set?

Lindy: Yeah, definitely. We’ve been seeing a pretty quick turnaround, generally speaking, maybe if it’s a more nuanced issue it takes a little bit, but generally speaking, I would say, we have seen a good turnaround with the decisions and being under 125 days, both for supplemental claims decision and higher-level review decision. Again, it’s not always the decision we’re looking for and we will often appeal to the board after that, but we are seeing a quick turnaround that falls within the 125 days.

Brad: Do we think that VA can actually eliminate all the legacy appeals by December 2022?

Lindy: I don’t think so. But hey, we’ll stay optimistic, fingers crossed. No, but I think there’s a lot to do and we touched on this before, but there’s a lot going on with scheduling C&P exams and having veterans show up to the C&P exams and getting all those remand instructions complete. It can take a while, so I I’m not sure.

Emma: It also doesn’t take into account like you mentioned, Brad, cases that could appeal to court and then get stayed by the court. Because the Court needs to decide some sort of precedential issue of law and then they might have 50 to 100 cases that are just hanging out at the court, and we’re waiting for that decision to come out. And then will be decided and then maybe potentially going back to the board. So there’s sort of from both ends ways in which it could get stalled out. So I don’t know that we actually can do it by 2022.

Brad: Okay. So, let’s talk about is the AMA, is the Appeals Modernization Act better? VA has pushed this very strongly along with their congressional sponsors are saying that “This is going to solve a lot of delay, it’s gonna solve a lot of the problems that we have in the veteran’s appeal system, choice and control, et cetera.” Is the AMA better?

Emma: Too soon to tell, it came out and went live in February, we haven’t even been doing this for a year. I think there are many pros. I think it’s really great that veterans should be and do get favorable findings of fact that are consistent throughout their appeal. That was always very frustrating when you submited something that the regional office said was favorable and considered, and then five years later, you got to the board and the board member decides that it’s not. So, I think that that’s great but you just can’t tell as of yet how it’s really going to shake out. It’s too new, I think there’s too many inconsistencies because people are learning the system, VA still learning the system themselves. So, I vote, I’m undecided.

Lindy: I think one of the nice things about AMA is that effective date wise, you can really just kind of keep appealing until forever. So that’s the one good thing is that if you don’t like a decision, you can just keep getting new and relevant evidence or keep seeking a higher-level review and then get more evidence. You can even get a board decision and then get new evidence and go to the supplemental claim lane. So it does give you a lot of options and a lot of chances to keep adding to your claim and seeking new evidence, and it does give a lot of choice. However, right now have been slightly preferring the legacy system only because it’s a little bit like the devil you know, is better than the one you don’t. I know how it’s going to go on legacy and it’s a little bit more predictable, although I do see the benefits of AMA at certain times, but I have been a little bit preferring the legacy system.

Brad: So it really sounds like it depends like you said, and it’s a case by case analysis. So please again, consult with either a veteran service organization like our partners and friends at the Disabled American Veterans, DAV or consult with a VA accredited attorney or VA accredited agent to talk about your options and what might make sense for your individual case. So, let’s talk a little bit about any closing thoughts with the AMA, the results, everything we’ve seen, a legacy system, anything you want to talk about?

Emma: Lindy?

Lindy: We’ve hit a lot of important things. I would just say again that the AMA is doing a great job timing-wise, we are getting quicker decisions and it nice to– usually it would be in the legacy system a couple of years ago, you’d filed your NOD, and then two years go by, and then you get your statement of the case. So it is a speedier result, you are getting your decision quicker. However, my problem is that it’s not always a great decision. So, I find that I’m frequently appealing to the board anyway. So, that’s kind of the catch 22 a little bit, but I do think that there’s like Brad said, it’s very complicated. It’s a case by case basis and I would definitely suggest reaching out to a VSO or seeking legal assistance just to fully understand what you’re dealing with.

Emma: And I would echo that because I think there’s a lot of misinformation out there about what the AMA can and can’t do, when you can opt-in from legacy, and so I would just be very careful if you have a legacy claim that’s been pending for years, 3, 5, 10 years. Don’t necessarily just drop that and file a supplemental claim and hoping that you’re going to get to keep the same effective date because you’ve worked very hard on that. We all three know how hard you’ve worked to get to that point. So, if you’re almost at the board, or you filed that VA-9 two years ago, and you’re next in line, I wouldn’t necessarily just pitch it just yet. I would see what happens with the board.

Brad: I think that’s really important because as VA has committed to Congress and to all its other stakeholders, they are focused on reducing the legacy inventory. And at the board of Veterans Appeals, I believe that means they’ve only been devoting about 10% of their resources on the AMA cases. So, therefore, if you’ve got a legacy case that is– has a docket date, that’s reasonably favorable, you’re going to get a faster decision in legacy at this point than you are in the AMA.

Emma: And just for everyone to know the law is still the same. The substantive law that applies in AMA also applies in legacy. So it’s not like there’s more favorable law. It’s maybe more favorable procedure, you have more choice but how to appeal your case, but the actual rules of how you get benefits are exactly the same. So, unless there’s sort of a procedural benefit at this point, you should be very careful about where you’re gonna go.

Brad: So just a quicker process as what you’re saying.

Emma: Exactly.

Brad: But at the same time, because it’s a quicker process, it has bigger implications if you choose wrong,

Emma: Correct.

Lindy: For sure.

Brad: Well, with that, I want to thank everyone for joining you. Again, Brad Hennings, Emma Peterson, Lindy Nash. We’re here at Chisholm Chisholm & Kilpatrick, CCK Live. Again, check us out on Facebook, leave us questions. Go to our website, cck-law.com or give us a ring sometime. Thank you and have a great afternoon.