The New VA Appeals System, Explained
- What is VA Appeals Reform? Is it the same as RAMP?
- What is VA calling the new appeals system?
- What’s the basic framework of the new AMA system?
- The Higher-Level Review Lane
- Viewer Question: Does the VA aim to complete all Legacy appeals by the end of 2020, including [Decision Review Officer] DRO hearings?
- Higher-Level Review (continued)
- Viewer Question: How long should a remand from Washington, DC take?
- Higher-Level Review (continued)
- The Supplemental Claim Lane
- Is the new ‘supplemental claim’ the same as a ‘supplemental claim’ in the Legacy system?
- The Board Lane (or the NOD Lane) – The Board of Veterans’ Appeals (BVA)
- Board Lane Dockets (Direct Review Docket, Evidence Docket, Hearing Docket)
- [IMPORTANT] The Board’s (BVA’s) Priorities: Legacy system and New system
- What will Board remands look like in the new system?
- Can you still appeal Board decisions to the Court of Appeals for Veterans Claims (CAVC)?
- How do you switch lanes in the new VA appeals process? Is there a limit to the number of times you can switch lanes?
- How do you switch from the Legacy system to the new system (AMA)? Can you switch back to Legacy after opting in to the new system?
- Is it possible to have claims in the Legacy system and the AMA system at the same time?
- Final Thoughts
Video Transcript.
Maura: Good afternoon, everyone. Welcome to today’s Facebook Live discussion. My name is Maura Clancy. I’m here at Chisholm Chisholm & Kilpatrick in Providence, Rhode Island. I’m also here today with Bradley Hennings and Courtney Ross, also of Chisholm Chisholm & Kilpatrick.
Today we’re talking about the new VA appeals system, a pretty expansive topic. There’s a lot of information that we want to discuss today. But we think it’s pretty helpful and pretty timely, given all the changes that we’re going to be seeing pretty soon at VA. We have a lot of material to get through but just a couple things before we get there. If at any point you have any questions that you would like us to address, please post those in the comments feed next to this video. We’ll do our best to get to as many questions as we can. If we can’t talk about them during our discussion today we will also be sure to post any material that we think might be helpful or useful in the comments section as well. If we think that we’ve got other articles or other resources that might help you answer your question will be on top of that as well.
Let’s start off and either of you, can you just give us an overview about what VA appeals reform is and whether it’s the same as RAMP, which is the current system I believe that VA is operating under for their appeals?
Courtney: Sure, I can take that question. In August of 2017, Congress passed what you might hear referred to as Appeals Reform, the Appeals Modernization Act, the new system or kind of the different names that people are throwing around for it. Basically, when the law goes into effect later in February, it’s a law that change the procedural process that VA is going to use for adjudicating claims at the Regional Office and at the Board. Essentially it was passed with the idea of helping the VA to work through the backlog of claims that are pending in the VA system and it gives veterans and advocates more options to decide how they want to proceed with claims that are pending with VA. RAMP is the pilot program that was created that went into effect starting in November of 2017, so only a few months after Congress passed the law to really test out parts of Appeals Reform and once Appeals Reform goes into effect later this month in February everything will be considered Appeals Reform, no longer RAMP.
Maura: So, RAMP is sort of a bridge between the old system and the new Appeals Reform system.
Courtney: Yep.
Maura: Okay.
Bradley: It’s been a bit of a rickety bridge, I would say.
Courtney: Yeah, I would agree with that.
Maura: Just to have our terminology straight, what is VA calling the new system and what’s the old system called? What are the terms that we can expect to hear with respect to what these types of systems are called now that there’s so many options?
Bradley: It’s true VA is referred to the new system in a number of ways. Most often you’ll hear it referred to as Appeals Reform or more recently we’ve seen the VA refer to it as AMA or Appeals Modernization. That is the new system that goes into effect on February 19, 2019, that will affect all VA appeals going forward. Now, the cases in the old system, the cases that have been pending for years and years and many of the cases that we’re handling are going to be known as legacy cases or in the legacy system. That’s how they’re going to differentiate, the VA that is. It’s going to be AMA or Appeals Reform cases, and then legacy cases is everything that’s been worked on prior or initiated prior to February 2019.
Maura: It makes sense. What’s the basic setup maybe Courtney, you can give us an overview of this because we’re definitely going to get into these details in a in a minute, but what’s the basic framework of the new AMA system?
Courtney: Sure. Under the new system when you get a rating decision for a claim that you filed you now have three different options for how you want to proceed with appealing that decision. As you know, under the current system when you get a rating decision, there’s only one lane or one procedural process to follow. Under the new system, you can file direct and appeal directly to the Board, which is you file a Notice of Disagreement with the Board, you can file a supplemental claim, or you can file an appeal to the higher-level review. So those are the three different options and as Maura said, we’re going to go through each different option in detail here.
Maura: So pretty big difference, because the old system that we’ve been working on for quite some time is just one track and everyone’s on the same track. Now, we have three different options. Probably a lot of benefits that come with that but I guess the hard work could be trying to figure out what’s the best link for you? What’s the best route to take?
Let’s first talk about the higher-level review lane, so at what stage in the claims process can veterans ask for the higher-level review option or ask for higher-level review of their claims.
Bradley: A higher-level review can be asked for after you get an initial decision or rating decision on an issue or after you file supplemental claim and then get a rating decision, you can opt to go into the higher-level review lane.
Maura: Okay. So, the process there is claim, initial decision, and then that’s when you opt for higher-level review.
Bradley: Correct. The reason you’d want to do a higher-level review or opt into that lane is if you think that everything you want in terms of evidence and argument is already before the VA, and you want a more experienced adjudicator to take a look at it. You think that the initial adjudicator just missed something or got it wrong, but you don’t have any additional evidence to add.
Maura: Like a second opinion
Bradley: Exactly. It’s exactly what it is
Maura: And what about the effective date? Are they going to use the effective date of the initial claim that was filed before any decision was made? Or are they going to make your effective date as of the day that you select higher-level review?
Bradley: So, the key is in the new process that you always have to do everything within a year. If you get a rating decision on an initial claim and you file for higher-level review, your effective date will be your initial claim, whenever you filed that original plan. Same thing if you’re filing a supplemental claim. Let’s say you file an initial claim in February 2019, you then a file supplemental claim within a year of that in 2020, 2021, you keep doing it within a year, and then you decide to go to higher-level review. It’ll go all the way back to your initial claim, as long as you’ve been appealing consistently within a year.
Maura: Okay, we actually already have a question. This one’s from Megan. Thanks, Megan, for your question. This one says, “Does the VA aim to complete all legacy appeals by the end of 2020, including DRO hearings or decision review officer hearings?” Anyone know the answer to that?
Courtney: Yeah. I think the VA has set their goal as moving all legacy claims to the new system by the end of 2020. How realistic and how that goal actually is, I think remains to be seen but that is what VA set as their goal
Bradley: We think that while they will get a complete a number of the legacy cases. They won’t account for cases that come back from the US Court of Appeals for Veterans Claims, for instance. In addition, we think the VA is going to continue to encourage folks to opt into the new system. But we still think that 2020 is an optimistic or an aggressive goal. We also don’t know what that means when they say, “Legacy Appeals are finished”, do they mean in terms of the entire process? Do they mean in terms of just finished with the regional offices? If they mean in terms of the entire process there’s no way, I bet my children on it, that everything is going to be done for all legacy claims, by 2020
Maura: We were talking before that question about the higher-level review lane which is one of the three lanes that you can opt into under the new VA appeal system. Brad as you were saying, so this entails a decision by higher-level rating official at the VA. Are they conducting a totally new review of the claim? Or is there any deference that’s given to the first decision?
Bradley: No, it’s ‘de novo’ or a completely fresh look at the claim itself. It’s known by someone who wasn’t involved in making the initial decision in the claim.
Maura: Okay. We sort of alluded to this before, you’re not allowed to submit any new evidence if you opt into this lane. This is just a request for a second decision.
Bradley: That’s correct.
Maura: I think that’s an important point because you’re saying that once you elect this, you are pretty much — you have to be very comfortable with everything that’s in the file because it’s pretty much complete as at that point.
Bradley: That’s right.
Maura: Okay.
Bradley: The other thing is that VA does not have a duty to assist that’s applying at that lane or at that level. What the higher-level reviewer is going to look at is going to look at the claim before the initial decision was made with a supplemental claimed the rating decision was made, and determine if there was a duty to assess error at that time. If the higher-level reviewer finds there was, for instance, no examination and opinion was obtained regarding nexus between the veteran service and its current disability, if they find that there’s an error there, they’ll send it back for an examination. But as part of that, it then moves into the supplemental claim lane, so it moves out of higher-level review.
Maura: Are you allowed to have any type of conference with the hearing officer at this stage? Usually, in the current system you can ask for if you elect a decision review, officer review, you can ask for an informal conference. Is there something analogous that’s going to be provided in the higher-level reviewing, do you know?
Bradley: There is. There is going to be an ability to do an informal conference. We have to say that our experience with it is the VA still figuring out how to handle those appropriately because they are a little bit different than the previous conferences under the current decision review officer system. An informal conference that are sending is you’re supposed to be able to talk to the higher-level reviewer and point out any errors that were made or what the problem is. But you’re not able, you’re not supposed to be able to re-argue your entire case, let’s say.
Maura: Make sense. We have another question from Glendon. Thanks for your question. How long should it take for a case that was remanded back to the VA by a Judge in Washington to be resolved? I’m not sure if this means a Judge in Washington at the Board or a Judge at the US Court of Appeals for Veterans Claims?
Courtney: If they’re referring to the Board, I think the time-frame for how long it takes to be resolved really varies on a case by case basis. A lot of the times and I’m speaking in terms of the older system, the legacy appeals, we’re actually going to get to later in this presentation, what remands look like under the new system, but to answer your question as far as it pertains to the older appeals. A lot of the times when the Board is remanding, they’re remanding for the RO to do specific things that might be to get VA examinations to get outstanding treatment or medical records, so it can depend on how quickly those remand instructions are completed by the regional office and/or the veteran to the extent that they can contribute, and then it will automatically be sent to the Board at that point. But I think that it’s hard to give a definite time-frame because it just by a case by case and by original offices.
Bradley: Sometimes it’s as fast as three months, sometimes it’s a slow as three to five years. I’ve seen both and that’s just with the Board of Veterans’ Appeals remand to the regional offices. Now, for the Court of Appeals for Veterans Claims we’ve got a much better handle on how long that takes to get back to the Board of veterans appeals. After the Court of Appeals for Veterans Claims has sent something back to the Board, we typically find it gets back to the Board of Veterans Appeals within three to six months of the court’s decision, and then they make it, it goes into their queue to make a decision.
Maura: Usually we hope that sooner than that, because there’s additional work that needs to be done after that point.
Bradley: Right
Maura: We just talked about the higher-level review lane, pretty much, a couple takeaways are that this is probably not the lane you should select if you need to submit more evidence. The ability to do that is not on the table anymore If you select this level of review, and also, it’s a second decision by a totally different decision review officer or higher-level officer at VA, and they will make an entirely new decision without giving any deference to the one that was made in the first place.
Bradley: Let me just give a plug and I think this is going to be true for all the lanes and that is the new system is pretty untested at this point. We think in some ways it provides a lot more, provides greater options to veterans, but it’s also a little more complex and confusing at time. So please, before you make any decisions as to what lane you want to opt into go talk to a representative at a veteran service organization. Go talk to the VA accredited agent, VA accredited attorney, go talk to someone who’s somewhat knowledgeable, who can help counsel you in the best way to approach moving forward.
Maura: This stuff is complex and there’s a lot going on. We’re going to talk about supplemental claims now. So, there’s another lane, a second lane, the supplemental claim lane. Courtney, can you tell us at what stage in the claims process can a veteran file a supplemental claim?
Courtney: Yeah, so much different than the higher-level review, really after any adjudicative action, you can file a supplemental claim. This means when you get your initial rating decision after filing of a claim, you can file a claim at that point if you do so within a year. When you get a Board decision, you can file a supplemental claim within a year. If you appeal — if a Board decision gets appeal to the court of appeals for veterans claims and you get a decision from the court denying the issues, you can actually file a supplemental claim at that point as well within a year from the court’s decision. If you do, if you file the claim within a year at any of those decisions, you maintain your initial effective date from the date of your initial claim.
Maura: Okay. That’s important because that one-year time frame seems to be kind of special and that if you’re taking action within the one year, you’re benefiting yourself by keeping the effective date
Bradley: You can also do it within a year of a higher-level review decision. That was the final piece, so every time you’ve got a year.
Maura: Or if you’re already filed a supplemental claim, you get a ready decision on that claim, you can actually file another supplement claim if at that point it makes sense for your case to do that. What is a supplemental claim? I asked that because in the claim legacy system assume to be the old system. There is something called a supplemental claim, but I think it probably has a different meaning now than the supplemental came under the AMA.
Courtney: Yeah. Under the old system when you file the supplemental claim or claim to reopen something you had previously file, you needed new material evidence in the effective date and typically go back to the date of your original claim. Under the new system when you filing a supplement claim you’re filing a claim for essentially the same issues that you already have pending, but you only need to submit new and relevant evidence which is a much lower standard. It’s just new evidence that the adjudicator didn’t have at the time that tends to prove or disprove the issues that you have pending, and it preserves your original effective date.
Maura: Okay. Something that I think is probably different in this lane is the significance of the duty to assist.
Courtney: Yeah, so the supplemental claim lane is the only lane of the three where the duty to assist actually applies. So, VA still has this duty they still need to be developing or helping you develop your case in accordance with that duty.
Maura: Okay, and what are some situations where a veteran might want to choose the supplemental claim lane?
Courtney: So, I think anytime that you need additional development for your case, this is going to make sense for you in terms of building to choose. Like I said, you need to submit new and relevant evidence for the VA to be able to adjudicate it in this lane, so they will look at that and make sure that you’re submitting when relevant evidence, but because the standard is so well, it’s a somewhat easy, it’s easy to overcome that.
So, I think generally speaking, anytime that you need to submit additional development on your case, someone to claim lane is a good option to consider. As we’re going to get into there’s other lanes where you can also submit additional evidence so you really want to look at your case as a whole and weigh the options to decide what makes the most sense.
Maura: I think that goes back to Brad’s point before about definitely talking it out with someone before making any decisions because it seems that these all have very different pros, very different cons.
Once again, everyone we’re here at Chisholm Chisholm & Kilpatrick in Providence, Rhode Island. Today, we’re talking about the new VA Appeals System. If you think of any questions that you’d like to ask us during this broadcast or afterwards, please feel free to leave your question in the comments next to this video. Again, we will be posting helpful resources if we find that they’re relevant to our discussion in the comments as well, so definitely feel free to utilize those as we post them. So, we’ve talked about the higher-level review lane, we’ve talked about the supplemental claim lane. Now we’re going to talk about the third lane which is the Board or NOD lane, Notice of Disagreement lane. Brad, why don’t you tell us first, what’s the role of the Board of Veterans’ Appeals in this third lane of the Appeals Reform process?
Bradley: The Board of Veterans’ Appeals is the final administrative adjudicative body of the VA. What that means in plain speak is they make the final decisions within the VA as to whether a veteran or claiming is entitled to benefits. The Board is composed of what are called Veterans Law Judges, which are administrative adjudicators, administrative judges within the VA itself. They’re supported by lots of attorneys and administrative staff. The Board of Veterans’ Appeals are all lawyers and judges, and so they get to make the final decision for the VA.
Maura: Okay, and at what stage in the claims process can a veteran file or opt in to this Board lane?
Bradley: In the new system, when you file a notice of disagreement or an appeal to the Board, you can do that after an initial claim. You can file the NOD after filing a supplemental claim and you get a rating decision that you’re denied, or after a request for a higher-level review and you’re denied at any point, you can file an appeal to the Board. The reason that this is significant is the NOD is the only thing that’s required now to appeal to the Board of veterans appeals. Historically, in the legacy system, when you file the notice of disagreement, the VA then produce what they call a statement of the case and then the veteran had to respond back with a substantive appeal VA Form nine, and then the case had to be certified to the Board. There was a lot more processing and winnowing of appeals. Now, the cases will go directly. Once you file an NOD, none of that additional processing is happening, it will go right to the Board of veterans appeals for them to make a decision.
Maura: You’re saying that as soon as an NOD is filed, or Notice of Disagreement, that’s going to set the case on the track to go into the Board.
Bradley: Exactly, and in fact, one of the new features of the system is that notice of disagreements will no longer be filed with the regional offices or the evidence in takes center. Instead, they’ll all be filed directly with the Board of Veterans’ Appeals in Washington, DC.
Maura: So that’s a definitely a big distinction from the current system where you’re filing you notice of disagreement at the regional office or the EIC, and then waiting on an additional decision and having to file an additional appeal after that.
Bradley: The idea is that it cuts out the middleman, so to speak, and that it should shorten the amount of time where a case, where nothing’s really happening on a case substantively. That it will set, it will you’ll follow your NOD, it will be triggered to go to the Board, and then the Board will put it in its queue to make a decision.
Maura: Okay. Courtney, you sort of spoke about this before, but is there a duty to assist in this lane?
Courtney: Not in the Board lane. However, similar to what Bradly described with the higher-level review lane and the Board can when they’re reviewing and making their decision, if they identify errors that were made with the duty to assist by the regional office, before they made their initial decision, they can send it back to the regional office to correct that error that was made, but the Board itself does not have a duty to assist in the same.
Bradley: But that’s really significant to just to give you an example, and people have asked, “Well, how is this really different than the legacy system?” The legacy system you’d get rating decision and maybe you hadn’t put much evidence in the file. But over the course of time between the notice of disagreement your VA substantive appeal, additional medical evidence, statements the veteran submits, there’s a whole bunch of things added before the Board of Veterans’ Appeals looks at. Board of Veterans’ Appeals looks at it and says, “Oh, we have the duty to assist applies we need to go get another exam. We need to get more records for all this evidence, including after the original rating decision.” In the new system none of that’s going to count. All this really going to count is depending on the evidence prior to that initial rating decision was there a duty to assist violation. It doesn’t matter if you put in things after that, they can’t correct it for a duty to assist violation.
Courtney: When they find a duty to assist violation what they’re essentially doing when they’re sending it back is their remanding it and it’ll go into the supplemental claim lane for the agency have a real original jurisdiction to correct. However, what’s really different about remands in the old system versus the new system is in the old system in the Board remands that regional office completes the remand instructions, it automatically gets sent back to the Board. Under the new system, you’ll receive another rating decision when its in the supplement a claim lane and you will have to file and NOD at that point with the supplemental claim decision to send it back to the Board. So, it doesn’t automatically get sent back.
Bradley: You have a lot more options, but nothing happens automatically, so veterans have to be really, and their representatives, have to really be engaged in the process.
Maura: So just to make things slightly more complicated, within the Board lane, there are three different dockets from what I understand. So, even if you’re in that lane, there’s still three additional sort of sub directions that your case might be going in. One of them is the direct review docket. Want to tell us a little bit about that?
Courtney: Sure. The direct docket if you select this one, it means that the Board will only review evidence of records that was in the record prior to that initial decision made by the regional office. You cannot submit any additional evidence and if you do that it will not be considered by the Board. The Board has suggested that they will be completing decisions for appeals that are in this lane within 365 days. It is going to be prioritized over the hearing lane and the evidence lane, which we’ll talk about in a second.
Bradley: The one thing to note about direct review. As Courtney said, there won’t be any evidence that’s allowed to be submitted. However, you will be able to submit argument as opposed to evidence for the direct reviewing.
Maura: And just to step back, so this is something that if you are filing your NOD, should you specify the docket at that time? At what point do you get to choose your docket if at all?
Courtney: When you file the NOD, you will have to select at that point. I know it doesn’t a new NOD form that you will be asked to fill out in the market on there
Maura: Makes sense. In addition to the direct review docket there’s also the Evidence docket. Brad can you tell us a little bit about what that entails?
Bradley: Sure, so just to explain the three dockets are the direct review, docket, the evidence docket, and hearing docket. Courtney just talked about the direct review docket. The evidence docket is allowing you an extra 90 days from the filing of your notice of disagreement to submit additional evidence. So these, the Board of veterans appeals has said, “These will not be decided as quickly as the direct review cases.” However, you will be able to submit additional evidence which they will consider during that period of time.
Maura: As you mentioned, there’s also the hearing docket. What is that all about?
Bradley: The hearing docket is much like in the current system where you’ve gone to a hearing before a Veterans Law Judge. The difference in the new system is that they will all be either in Washington DC or via video conference from the regional offices, what they call travel Board hearings where the veterans all judges go out to the regional offices and conduct in person hearings will no longer be offered. Now, they will continue to be offered for all legacy cases, they have a large backlog, those will continue on. But for the new system, it’s going to be one either in DC or via video conference. You hold it here and with the Veterans Law Judge, and then you have the ability to submit evidence either at the hearing or within 90 days of the hearing. The key part here that’s unusual is the Board will not consider evidence submitted by the claimant after the initial rating decision, but before the hearing, so that seems very odd. If you submit evidence after your initial decision, you file your NOD, the Board won’t consider it. It will only consider it if you submit it again after hearing or the 90 days of the hearing.
Maura: The only evidence that they’re looking at then is anything that was generated or submitted before the initial decision, is that right?
Bradley: That and whatever the hearing testimony brings out.
Maura: Right, and what about rescheduling hearings? Is that going to be more complicated under the new system?
Courtney: Under the new system, you can ask for it to be rescheduled up to two weeks before the hearing, if you’re able to show good cause for rescheduling it. If the Board grants through scheduling of it, or if you decide to withdraw it, you’ll still have 90 days from the data you withdraw the hearing to submit additional evidence.
Maura: Okay, so that’s good to know. Even if the hearing doesn’t happen, you still have a 90-day window within just to submit evidence.
Courtney: Yeah, and in cases to where you might miss the hearing, the 90-day window applies for those cases as well.
Maura: Okay, make sense. Do we have a sense of how long it’s going to take the Board to make decisions after the hearing takes place? Any estimates on that?
Courtney: The hearing cases in the new system are going to be last on the priority list of cases of the Board is able to adjudicate. So, the Board is prioritizing legacy cases, legacy cases with hearing, the direct docket, the evidence docket and then the hearing docket under the year or so.
Bradley: You’re likely in for a tremendously long wait, if you choose the hearing option in the new system. That’s the only we’ve been trying to warn folks and VA has been very explicit about this. We believe they have a multiyear backlog for hearings in the legacy system, maybe up to five to seven years, and so at least that plus potentially. So just be very cautious about asking for a Board hearing in the new system right now, because we think it will be a significant delay.
Maura: Did you want to add something?
Courtney: I was just going to add, keeping that in mind too, in the new system, if you find yourself in the hearing lane and you later learn that you might be waiting a long time, you can actually withdraw from the lane that you chose and choose a different one. If you chose to hearing one, you can switch it to direct or the evidence docket and if you do it within that one-year period from the initial decision your effective date is still preserved for purposes of how long might be waiting for again document and making final decision.
Maura: The Board is definitely prioritizing we know legacy hearings over AMA hearings. Is that the same? Does the same thing apply to appeals in general, so it’s VA prioritizing the legacy appeals to sort of get rid of them first, over the new ones?
Bradley: VA is committed to all of its stakeholders and various public forums, that legacy cases are the priority and they will do everything they can to get those cases resolved either via decisions or by encouraging new veterans to opt into the new system.
Some of their reports have indicated the Board of Veterans’ Appeals has estimated no more than 10% of the resources will be applied to the new system cases. So, that gives you an idea of what at least the Board of Veterans’ Appeals is thinking in terms of allocation of resources.
Maura: What are some situations in which the Board lane would be a good choice for a veteran to make among all the other options that are out there?
Courtney: So, I think one, if your case is, you feel like you’ve done all of the development on it, you’ve submitted all the evidence, all the arguments that you think are necessary and you’ve still got a negative opinion from the regional office, the Board lane might make sense at that point. Because one, you can submit — you can select the direct docket lane, but you’re not going to submit any additional evidence anyway. That’s going to be one of the prioritized lanes under the new system. Then it’s gone directly to the Board whereas Brad said before you now have lawyers and Board judges looking at your record and making decisions on your claims.
Bradley: Generally, anything that’s a little more complicated, more complex, unusual legal issues, you’re likely to fare better at the Board of Veterans’ Appeals again, mainly because their lawyers looking at it, and they frankly have a little bit more time than the regional office adjudicators do.
Maura: And what are Board remains going to look like in the new system? So currently, if a case proceeds to the legacy appeal system and goes to the Board, and the Board determines that it needs more development, or it needs the veteran to provide more information, or for a part of VA to provide more information, it remands the case back to the regional office. And then there can be a wait, as we spoke about before, as to how long it will take for the remand instructions to be complete. What is a Board remand going to look like in the AMA? Do we know?
Courtney: I think we briefly touched on this before in terms of what the Board remand looks like. So, when a Board finds that have remand is necessary, it goes back to the regional office and it’ll be in the supplemental claim lane, the RL will issue a decision on the supplemental claim. At that point, the veterans will have to file a Notice of Disagreement or, yeah, they’ll have file Notice of Disagreement to send it back to the Board.
Maura: Okay. As you said before, Courtney, the biggest distinction there seems to be that there’s more action needed stemming after that remand it will just automatically proceed back to the Board anymore.
Courtney: Yes, exactly.
Maura: Anything to add?
Bradley: So, I think that’s really significant because there’s a concern, I think that many other share that certain cases are going to get stuck, quote/unquote, at the regional offices. Because they’ll get to the Board of veterans appeals, they’ll be sent back, and rather than automatically going back to the Board, they’ll sit at the regional offices, and then the veterans are going to be forced to make additional decision. If they want to go back to the Board of Veterans’ Appeals they have to file one another NOD. The veterans have to be very active, and if they’re not active, they could potentially lose their effective dates.
Some folks would say, “Well, this is a way that you could potentially keep cases away from the Court of Appeals for Veterans Claims because if the Board just keeps finding errors in the duty to assist, they’ll send it back to the regional office.” Now, some people would say, “How’s this different from what happens now?” The difference is that all those cases now that gets back to the regional offices automatically go back to the Board. In the new system nothing is automatic anymore.
Maura: It’s a definitely an important difference. It’s something to be on the lookout for. You mentioned the CAVC, the US Court of Appeals for Veterans Claims. If the Board denies a claim, there is still the ability to appeal to the CAVC as there is in the legacy system, correct?
Bradley: Yes, absolutely. We think that there’s going to be a whole host of new issues that are brought to the Court of Appeals for Veterans Claims, attention as part of the implementation of Appeals Reform. But the fundamental right to go to a court outside of the VA is still there. And we still think that there’ll be many cases where that’s an appropriate way to resolve the case.
Maura: Okay. A couple more big picture questions before we wrap this up for today. Again, everyone we are still here at Chisholm Chisholm & Kilpatrick in Providence, Rhode Island, and we thank everyone for tuning in today. We still have a little more content to get into but again, if you think of any questions that you’d like to ask, and would like to post them in the comment section next to the video, please feel free to do that.
One thing we’ve talked about are all the different lanes that are available, the different Board dockets that are available, all the different choices and decisions that are going to have to be made, how can you switch lanes in the new system? Maybe you opt into a lane and at some point after that you decide it’s not the one you want to be in. What should you do? Are there time limits on that?
Courtney: The timeline, time limit that you want to keep in mind is again, that one-year period. So, if you make the switch within the one year of that initial decision, you’ll still preserve your initial effective date and keep your claim stream open. What you would do is let’s say, you opted into higher-level review. You can request that they withdraw that request for higher-level review and then you would need to even file, the NOD that’s applicable for the Board lane or the supplemental claim that’s applicable for the supplemental claim lane. But again, if you withdraw the claim, you don’t make the other selection within the year, or you’re going to lose your initial effective date, so the time period is really important if you are going to make the change.
Maura: If you keep acting within a year, but you sort of keep opting into the supplemental claim lane or switching back and forth between the lanes before your case goes to the Board is at any point is VA going to put a stop to that and say, “You filed too many supplemental claims and you switch lanes too many times?”
Bradley: We certainly hope not. There’s nothing in the legislation indicating that they can just stop an appeal. This is one of the advantages of the system and that is that the veteran as long as they’re staying active with filing the various things within a year of each decision, they can keep it alive. And arguably under the new decision format the VA is supposed to say exactly what sort of favorable findings are there. What evidence is needed to substantiate the claim. Theoretically, it will make it easier for veterans to lane claims. But our experience and RAMP so far is that it’s been a bit of a rocky roll out for that part of it. So, we’ll have to wait and see.
Maura: What about switching from the legacy system to the new system? Or maybe in the other direction from the new system back to the legacy system, what’s possible there, what’s not possible there?
Courtney: As the February 19, 2019, so just a few weeks from now, anytime you get a rating decision, it’s automatically going to be in the new system, so I think that’s important to mention. In terms of the legacy appeals that you have pending, you can choose to opt into the new system either at the SOC stage, meaning when you get a Statement of the Case, or at the SSOC stage meaning when you get a Supplemental Statement the Case. I think what you want to keep in mind is some of the information we’ve covered here in terms of how the Board and VA are prioritizing these appeals. As we said, VA has been breaks booklet that they are prioritizing legacy appeals and are going to try to work through those first. I think that’s important to consider if you are thinking of opting into VA system.
Bradley: I think you should really think about if you have an old appeal with an old docket number that’s pending for many years, you should think long and hard about whether you want to jump out of that line. Now, if you have a recent rating decision what you’ve just filed Notice a Disagreement perhaps you want to make a different choice. But again, this gets into please talk to a veteran service organization, VA accredited agent, VA accredited attorney, about the best option for your individual case.
Maura: Is it possible to have claims in both the legacy and the new system? In other words, would it be possible say if a veteran has two claims pending in the legacy system, are they able to take one of those claims and opt into the AMA and keep the other claim and legacy, or is it an all or nothing type thing.
Courtney: My understanding is that if a veteran themselves chooses to opt in to the new system, the VA is going to take action to move all of the appeals into the new system. But I will say that was also our understanding with RAMP and that’s not exactly how VA had actually done it under RAMP. So I think some of this will have to wait and see how VA actually handles it.
Bradley: There’s also cases that are coming back from the US Court of Appeals for Veterans Claims and it’s little unclear what happens to those cases which were in the legacy system and the veteran didn’t opt out and yet he’s got other claims pending down below in the new system? We’re just not sure exactly how it’s all going to play out.
Maura: Yeah. Anyone have any final thoughts about anything we talked about today?
Courtney: I think just reiterating what Brad has said a couple times throughout, this is just seek representation if you don’t have it. The system is, you have a lot more options under the system, which I think means there’s a lot more to consider in terms of what is the best choice for your specific case. I think if you don’t understand the new system, reach out to an advocate or seek representation for it so that you can make sure you making the best decision for your case.
Maura: Agreed.
Bradley: Agreed 100%.
Maura: Any other questions? Thank you all so much for joining us today. Again, this was our presentation on the new appeals process. This video will be saved so feel free to access it later. Thanks again to both of you for all of your expertise and knowledge and we hope everyone has a great day.
Bradley: And visit us at cck-law. com.
