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Is The AMA Better for VA Claims?

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Robert Chisholm: Good afternoon. This is Robert Chisholm from Chisholm Chisholm and Kilpatrick. Joining me today is Brad Hennings and Christine Clemens. And today we are going to talk about, “Is the AMA Better for Veterans?”

The AMA again is the Appeals Modernization Act and when we are talking about is AMA better for veterans, what we are really getting at is the AMA delivering all that VA promised it would when it set up this new appeal system.

I want to reiterate that basically all the claims that are filed now are in the AMA. There are still what we call Legacy cases pending, but for anyone filing a new claim, it is going to be adjudicated through the AMA process. So it is the really– to say it simply, it is the only game in town. This is the way forward for VA for now except for the remaining Legacy cases and Christine if I could turn to you first to just sort of give an overview of what the AMA is and then I will turn to Brad to talk a little bit about what is going on with the Legacy Appeals.

Christine Clemens: Sure, absolutely. So the AMA is– it is short for Appeals Modernization Act. But AMA is loosely used to refer to VA’s new appeal system and just a little bit about it. The Veterans Appeals Improvement and Modernization Act was signed into law on August twenty-third, twenty-seventeen and it went into effect on February nineteenth, two-thousand-and-nineteen. But in that time before it went into effect, VA had initiated essentially a trial program to kind of test through what the various options and lanes would look like in this new modernized appeal system. What if our listeners and viewers might be familiar with the pilot program called RAM which stood for the Rapid Appeals Modernization program and that was implemented starting in November two-thousand-seventeen, not all of the appeal lanes were open initially just two at the Regional Offices were open, the higher-level review and supplemental claim lanes and then eventually in October of two-thousand-and-eighteen the board lanes became available, as well. But part of what prompted this change to this new appeal system is long wait times. Veterans were waiting for many years for their appeals to be adjudicated or decided, there was a massive backlog of appeals and this was several years after people may have remembered when there was a lot of oppressed on the claims backlog. So the claims backlog turned into an appeals backlog. And essentially veterans were waiting, you know, a lot of them were waiting seven years or so from the time that they first filed their appeal or their notice of disagreement to that first regional office decision.

That was in some way unfavorable to them, you know, seven years is a long time especially when you are talking about individuals, who are disabled, who may not be working, who have chronic conditions, degenerative conditions. So, you know, essentially they– the Congress said enough is enough. We need to come up with something new and VA worked to develop over the course of many years this modernized or new appeal system. The goal of the new system was to simplify and streamline parts of the appeals process that were associated with a number of these delays and one of the benefits that VA had expressed that they hope this new appeal system would bring for veterans was allowing more choice and control for veterans and their families when they disagreed with a decision. One of those options would be to go directly to the board of veterans appeals instead of to– instead of filing in an appeal at the regional office. So, you know, these were some of the benefits that VA expressed. Getting decisions faster, having a little bit more control over the process and that is ultimately why they moved to this new appeal system.

Robert:  And Brad we are still getting decisions in the Legacy System as well. Can you talk a little bit about what VA’s goal is in terms of finishing those cases in the Legacy System and where things stand today.

Brad Hennings: Sure, the Legacy System just to reiterate was what was in effect prior to February of twenty-nineteen and that consisted of if you disagreed with initial decision, rating decision by the VA Regional Office. To appeal it you would be forced to file with the call the notice of disagreement or NOD. In response, the VA would produce or prepare a statement of the case which again laid out their reasoning for the denial as well as the laws that they thought applied and a veteran was forced to file what they call the Substantive Appeal or VA Form nine to perfect the appeal and eventually that case would go to the board of veterans appeals. Obviously, it works differently in the AMA now but there are still many many Legacy cases pending. The last time we checked there was according to VA itself, it sounded like there were around two hundred thousand, give or take. We are a little unsure where they are getting the numbers from so we cannot be certain exactly how many there are but they have claimed that they have a processed all the notice of disagreements and all of the VA Form nine Substantive Appeal cases that they had in their inventory at the Veterans’ Benefits Administration. It does not include the remands that come from the Board of Veterans Appeals down to the regional offices and it does not include cases that are pending at the Court of Appeals for Veterans Claims.

So, VA’s overall plan is to resolve all Legacy Appeals by the end of twenty-twenty-two and so that means everything including all the remanded cases that currently exist. They are able to do that for a few reasons, one, they have radically staffed up, they have added many many additional adjudicators both at the Veterans’ Benefits Administration and at the Board of Veterans Appeals. They have added veterans law judges, staff attorneys, etcetera. Two, they have really strongly encouraged and in some cases nearly forced folks into the new system out of the old system. They strongly encourage that and three, it just became a priority for years, it was not a priority claim– initial claims were a priority because there is a huge backlog there. I got that down and we had this ballooning appeals backlog. And so they finally prioritized it finally gave additional resources and made it the most important focus. They gave congress a commitment that they would resolve all these Legacy Appeals in a timely fashion. So that folks who have been waiting for years and years would finally get some resolution before really focusing in on the AMA Appeals.

Robert:  I think it is important to point out from sort of historical perspective, that any veteran and for that matter, any representative who has been representing veterans or who has filed a claim over the last fifty years was going to be in the Legacy system. It was the only system that existed and so Congress set a date for the new system the AMA to start and so we have to have the claims that were filed before that date finish up. Those of the Legacy Appeals and now all the new claims from last year forward are in the AMA and it is a real change for people who have been representing veterans, whether you are an agent, a veteran service organization, or an attorney. Everyone has to learn how this new system is working. So what we want to do today is talk a little bit about how it is going and what the goals were when VA set up the new AMA and how the are doing with it. So I think my first question offered to you Christine and that is, talk a little bit about the different choices veterans have in AMA versus the way it was in Legacy.

Christine:  Sure, so, you know, I think the choices in AMA are a little bit more– they are a little bit more crit– at least in Legacy was a little– it was somewhat linear. So it followed more of this kind of standard trajectory where– I mean a start with Legacy and Legacy of Veteran would file a claim would then receive a decision, file a notice of disagreement. The veteran could then elect one of two options either a decision review officer would look at the case that was somebody within the regional office who would review the case the earlier decision or they could elect traditional review which would be essentially the veteran saying I want this to go to the Board of Veterans Appeals. And so the regional office would then issue what was called a Statement of the Case and the veteran would file a Substantive Appeal Form nine appeal is what it was also something called, to appeal the case to the Board of Veterans Appeals.

Now, regardless of what the decision was for the– from the decision review officer, if they were unhappy with that decision, they could still follow that path and go to the Board of Veterans Appeals. So it was a little bit more linear and maybe it is a little bit different in that there are at the regional office two options. There are other or lanes. There is a Supplemental Claim lane and there is a Higher-level Review lane. So when a veteran files a claim they will get a decision. And with that decision, if the veteran has additional evidence that they want to submit, that they want VA to consider then what they would be looking at doing at the regional office would be potentially filing a supplemental claim. They are essentially supplementing the record with new and relevant evidence. If they do not have additional evidence or new and relevant evidence and they think the decision was wrong and they want to stay at the regional office. They can request a Higher-level Review of that rating decision. But they do not have to stay at the regional office or go through one of these review options at the regional office.

If they are not satisfied. They can take their case directly to the Board. So they can bypass that– those processes in the Legacy System decision review officer or requesting traditional review and then having to get a statement of the case and then having to file another appeal in order to get that case heard by the Board. They can just file a case directly their– their appeal directly with the board in AMA and there are three, essentially three options at the board the hearing– there is a hearing option, there is a review option and there is an evidence submission option. There is now a sort of fourth option for a virtual hearing but those are really three very different options. They can file at the board. They can have the board just look at the evidence that was already in the file. That is the direct option. They can submit additional evidence within ninety days of their election to the board. That is the evidence docket or they could elect to have a hearing and submit evidence within ninety days of that hearing and that is the hearing docket.

Robert:  Brad, could you talk a little bit about how VA in Legacy and now in the AMA is– was supposed to in Legacy, what evidence they needed to talk about, what findings they needed to meet make in a decision. And now in the AMA, it is supposed to be a lot clearer in terms of the findings that the VA is supposed to make in informing a veteran of the decision.

Brad:  So in the Legacy System both at the regional offices and at the Board of Veterans Appeals, there was a lesser standard that VA was allowed to provide its further to the reasons or basic standard to explain why a claim was denied or granted for that matter or why something was being remanded. Sometimes it was very clear and sometimes it was as clear as mud frankly in the old system and so one of the touted advantages of the AMA is that there was going to be a new decision format and what that meant was that the regional offices would very clearly lay out what they were finding and in particular the favorable findings because if regional office made favorable findings they would be binding on the agency.

So for example, if they found that a veteran had actually incurred an injury during service in their service records and made that finding it would lay ahead. It would be laid out saying we find the veteran hurt themselves in service. And so the power of that is because it is binding for good, absent, clear, and unmistakable error because it is finding for good you carry it with you through all your adjudications. So then you need to know. Okay. Well, all I need to do or prove my other two elements of service connection. That is a current disability and a length of service. And as you accumulate those favorable findings it narrows the issues that you actually have one appealed but you have to submit new and relevant evidence for. So they said that these new decisions would lay out exactly what it is. We– they found favorably exactly what you need to win your claim. They lay everything out very clearly in an understandable and digestible format. The reality has been less impressive as– than what was promised.

Robert:  So I would like to move forward a little bit and now talk about what we are actually seeing in almost the first eighteen months of the AMA. It is still very new and we are still learning a lot of things but one of the things that VA promised is that claims in the AMA would be worked faster than they were in Legacy. And Christine, you pointed out in the beginning that some claims were delayed five, six, seven years before final adjudication. So VA promised that if you went into the Supplemental Claim lane or the Higher-level Review lane, that they would make a decision within a hundred twenty-five days, and they also promised for claims going for appeals. I should say going to the board three hundred and sixty-five days and that– both of those goals were a lot faster than what any veteran experienced in Legacy. So what do we know about the timeliness of VA meeting those goals right now, Christine?

Christine:  Sure. So I mean they think you know, one kind of initial point is it is nice to have these time frames as guidelines and sort of goal post for VA to meet because, in the Legacy system, there were no projected time frames. So it was hard for someone to know how long they were, you know, expected to wait or the goal was to have them wait less than a certain amount of time. I think initially with AMA we saw and certainly with ramp cases. We saw that VA was sticking pretty closely to these timelines. Now that we are almost a year and a half into it. We are seeing that that sort of slipping away. We are not seeing supplemental claims being adjudicated in a hundred and twenty-five days. The higher-level review– reviews do seem to be happening more quickly and I believe that is because there is a closed record but there is a complicating factor here in being able to really gather the data which is that we are in unprecedented times right now, not just with AMA but with the COVID-19 pandemic. We are seeing that that has posed some additional challenges for VA meeting these timeliness goals.

One of the things that we have talked about a number of times certainly in our broadcast and on our website are delays with C&P examinations taking place that they are not taking place with the frequency that they were prior to the COVID-19 pandemic and they still are not. VA is trying to come up with alternate mechanisms to ensure that people are having exams that are required in their cases, but that is doing a lot to sort of tie– to tie up cases and potentially to skew the numbers but the short answer is that we are not seeing certainly within the supplemental claim lane these goals being met.

Robert:  Brad, one of the promises of the AMA was that over time VA would learn from its mistakes and become more accurate in its decision-making and I know we are only eighteen months into the AMA. But what are we seeing in that regard?

Brad:  I know that was one of the hopes and I guess we are still hopeful that that will be the case. It is been frankly a little disappointing given that VA had eighteen months to prep for the new system and that we have been system for around eighteen months or so and yet we are still seeing quite a bit of confusion as to how everything should operate procedurally. In fact, we spend an inordinate amount of time reaching out to regional offices, reaching out to VA Executives to try to get them to correct mistakes or errors that are going on and you know, we know there is a steep leaning– learning curve. There is a lot of training that was provided and still being provided. We have not seen that learning that we hope would go on. It is unclear why, it is not entirely surprising perfect example would be the fact that we had the Court of Appeals where veterans claims in existence for thirty years now and yet some of the same– The Board of Veterans Appeals making some of the same errors that it made back then, for example. So absent any incentives to really– to engage in that learning, I am not sure that we are going to see in the short term. Although I am hopeful that in the long term we will see them.

Robert:  Christine, one of the things that VA promised was that the AMA would be a simplified appeal system and they also promised that it would give the veterans choice in control. Can you address both of those points? And what we are seeing?

Christine:  Sure. I mean maybe, in theory, it is a simpler system, but the reality of it is that as long as Legacy took it was at least somewhat linear and AMA is not like that at all. One of the major differences between Legacy and AMA is that VA in both systems has it has a duty to assist the veteran in developing their claims. And so what that means, we talked a little bit about compensation and pension examinations. It means that sometimes VA has to obtain records. Sometimes it has to obtain examinations. In Legacy, the duty to assist applied throughout the process until there was a board decision and that is very different from the AMA where there are discrete periods of time when the veteran can submit evidence, when evidence can be considered, and when that duty to assist can be triggered. And so knowing when to submit evidence and how to submit evidence in the new system is extremely challenging and complicated especially for an unrepresented veteran.

I think this is stuff that can even be difficult for seasoned veterans law practitioners but is especially difficult for a veteran who has been operating under one system and is now getting different types of letters different requests different appeal options. So, I think it is far from a simplified system. There are some benefits to the system in that, if a veteran is able to figure out how to navigate the system and continuously prosecute his or her claim or appeal. The effective date could you know if they get an unfavorable board decision and then they file a supplemental claim within a year of that. Their effective dates could be more favorable than under the Legacy system if they did not appeal that board decision. But there are a lot of areas in the new system that are confusing and feel and sometimes almost like detours that do not end up going anywhere for the veteran.

Robert:  But I think one of the benefits of the AMA is that you can now file just one appeal to go to the board and if you feel your claim is fully developed and you do not want to add anything to the record.
You are going to get a faster decision as long as you do not go into the evidence lane or the hearing than in Legacy. So there are some things that are working better.

Brad:  So in that sense, you really can because you are saying there is nothing more to be done and you get an up-or-down answer and one of the complaints among many veterans are, “Hey, this case has been hanging around forever. They haven’t completely denied me but they have not granted me my claims either. You know, what the heck is going on? Why do they need more evidence?” So if you engaged in direct review options that I have got all the evidence I need maybe the board says yes, but the board says no the nice part about the new system as you say, “Okay. Hopefully, the board has done a good job of laying out what the issue in the case is if they said no.” And you still have the option to go to the Court of Appeals for veterans’ claims. If you think that the Board of Veterans Appeals made a legal error, in particular, that is where you want to get it corrected at the court but if it turns out you are missing a piece of evidence or the board find something not really is valued as valuable as you thought it was, hopefully, and what they are supposed to have done is lay that out for you in their decision, tell you and then you know, you have got a roadmap for new and relevant evidence to prove your claim to win your case.

The one thing I did want to add on to what Christine said was in the old system it really was kind of set it and forget it, things would just happen after the veteran files NOD, files Substantive Appeal, he or she could really just let it sort of come up and down throughout the process. In the new system, it is not like that and I cannot stress enough that a veteran should try to find a veteran service organization representative, a VA-accredited attorney, a VA-accredited agent, someone who knows this new system and it is really vital to get assistance because like Christine said, even experienced practitioners are wrestling with this.

Robert:  I really agree with that, Brad. And if I were veteran and if I were filing a claim knowing what I know about the system, I would want to represent it at this point because it is challenging to figure out which lane to go into and why. And so that gets to I think another question is, is there advice that we can give as a general rule to veterans? Here is how you appeal your case when you get a decision from the regional office that you are dissatisfied with. I think the answer to that is, it depends. It depends on a whole host of factors and this is not a one-size-fits-all remedy, if you will.

Brad:  And I think that is a really good point and it makes such a big difference earlier in the process in the Legacy system. Again, it covered up a lot of mistakes that you can make on your case over time, but in the new system, it forces you to make choices throughout the entire process and continue to make choices and take affirmative action. And if you are not– you could definitely take affirmative action that ends up hurting your case or hurting your ultimate effective date.

Robert:  So in closing, I would like to go back to the original topic today, which is, “Is the AMA better for veterans?” and state that again, there is no choice you are in the AMA when you file a claim now, except for the remaining Legacy cases. Everyone who files a claim or receives decision now is basically in the AMA system and if– Christine, you wanted to give a summary of what succinctly is the AMA better for veterans?

Christine:  You know, I think the AMA is faster for veterans. So even though they are not meeting maybe exactly their targets. I think it is moving faster and so veterans are not waiting years wondering if their case has been dropped, forgotten about, etcetera. They are hearing from VA more frequently and that can be helpful. But I think it is a more complicated system and I think it can be better for veterans if they are working with somebody who knows how to help them navigate the system.

Robert:  Brad, did you have any final thoughts?

Brad:  Yeah, I think I agree completely with Christine. I think, generally speaking, unfortunately, VA over-promised and under-delivered so far on the AMA, but I am hopeful that we are going to get some of these issues resolved to both through increased training and experience by VA as well as litigation at the Court of Appeals for veterans claims and the will hopefully answer some of the other issues. I think if you– if your case has been pending a long time at this point, it probably makes sense to stay in Legacy. For example, if you are just about to wait for a board decision because they are working Legacy cases like crazy and they are pretty caught up but I think for many veterans and even for many of our clients we have been choosing to go into the new system because it does offer some different options that are attracted. But again Christine’s point is well taken, you want to be cautious before you take any kind of steps and you want to really want to consult with someone who knows what they are doing in this system.

Robert:  Oh, Brad, Christine. Thank you for your time this afternoon. It is Robert Chisholm, signing out from CCK. Please continue to follow us in cck-law.com. And if you have any questions, reach out to us through Facebook and– or our website, and we will try and answer your questions to the best of our ability. Thank you.