VA Appeals Reform: Proposed Regulations

In this video, CCK partner Zach Stolz joins attorneys Brad Hennings and Emma Peterson to talk about the latest on VA Appeals Reform. Listen to their analysis of the VA’s proposed regulations:

• Why was appeals reform necessary?
• An Overview of Appeals Reform
• The Rapid Appeals Modernization Program (RAMP)
• When will new appeals start to be adjudicated under the new appeals system?
• Can veterans switch lanes before VA issues a decision? Will they keep their effective date?
• When do decisions become final under appeals reform?
• Will the principles of veterans law change under appeals reform?
• The Notice of Disagreement Lane (a.k.a. the Board Lane)
• Appealing after a Board denial – what are your options?
• Duty to Assist under Appeals Reform
• Board Remands
• Do you need a specific form for the supplemental claim lane?
• Higher Level Review Lane – Who adjudicates Higher-Level Review claims? Can you submit new evidence?
• When can veterans opt in to appeals reform once it’s in effect?
• When can veterans start switching lanes?

VIDEO TRANSCRIPTION

Zach: Good afternoon from Providence, Rhode Island. This is Zach Stolz with Chisholm Chisholm & Kilpatrick. We’re here today to talk the – I don’t know, fourth or fifth, in our ongoing and long-running series about VA Appeals Reform. It’s one of the biggest subjects to hit veterans law in many, many years. And CCK has been working diligently on it, and we will continue to do so on behalf of our clients. Joining me today for this discussion is Emma Peterson and Brad Hennings, two of my colleagues here at CCK and two attorneys that work on VA benefits claims. And we are going to talk about a couple things, which is the RAMP program that a lot of people have heard about, as well as Appeals Reform, which is scheduled right now to start taking place in February of 2019. So we are just a few months away from that happening and we’re going to talk a little bit about some of the issues that we see with it, some of the things that are going to be helpful for veterans, some of the things that may cause some problems for veterans. And just be as honest as we possibly can and going through the system because it is on its way and it’s something that we all have to prepare to do.

So with that, I’m going to give a quick introduction to why Appeals Reform was necessary the Department of Veterans Affairs worked hand-in-hand with many of the stakeholders including veterans service organizations and the National Organization of Veterans Advocates which is a group of attorneys and advocates. They worked with a number of other stakeholders in the process. They worked with a number of veterans in the process. And over the course of two or three years, rewrote the way appeals are done at the VA level. And it was passed by Congress last August and signed by the President. And so, now the Department of Veterans Affairs has been working very hard on getting regulations which will implement what Congress commanded the Department of Veterans Affairs to do.

Those regulations have been published and will become final soon after the same stakeholders that I mentioned, the veterans service organizations as well as some others will get a chance to comment on those. But long story short, the reason that VA and Congress and veterans service organizations and other veterans advocates thought that Appeals Reform was necessary is because, quite frankly, the original way was taking too long. And in the eyes of many it was completely broken. Veterans were waiting entirely too long to get decisions on appeals that they were filing. It’s been taking years and years and years to get through the Board of Veterans’ Appeals process. It takes even more years if a veteran needs to go to court. And basically representatives and people across the nation became fed up with it and tired of it, and so decided to really dramatically change the entire process. And so dramatic change has come and dramatic change will– is here and will be here in even more full force in February. But with anything this dramatic, hopefully it will work as well as everybody wants it to work. Hopefully it will work well for veterans. But essentially everyone’s going to have to work together, VA and advocates, and veterans themselves, and these organizations in order to make this go as smoothly as possible because it is a huge system. There are over a million claims filed every year. And all of a sudden, it’s going to be completely different.

So not to scare anybody, but that’s what we’re here to talk about today. We are optimistic that it is going to work. We’re optimistic that it is going to be something that is going to be good for veterans. But we are going to do our best to work as hard as we can to make sure that that is true. And I know others across the country will too. So let’s get into some of what’s happening, an overview of Appeals Reform. And this will be my first warning that we will probably be doing several of these from CCK because it’s going to be something that is going to be on our minds for the next many months, if not years. So if you have some questions, we’re happy to answer them today. We may not be able to answer them. But if we can’t, we’ll be honest with you, tell you that we can’t and will do so at a future date. So let’s talk a little bit about the supplemental claim lane. Brad, you want to take this question. So here we go.

Brad: Yes. So in the new system when you get an initial decision for benefits and you’re unhappy if it’s a denial, you can then choose to go into what they call the supplemental claim lane. Previously, you could only file a Notice of Disagreement in the current system. But in the new system, you’ll have three options. And the first option is to file a supplemental claim. What that means is you will file a new claim with new and relevant evidence or you identify new and relevant evidence and then VA will make a new decision based upon that new and relevant evidence you’ve either submitted or identified for them to go and obtain. The second level, the second choice is to get a higher level review. And what that means is if you’re dissatisfied with the initial decision, you can ask for this higher level review by a more experienced adjudicator. Who that is, the VA hasn’t been entirely clear on just that they’re more experienced. We think they are akin to the decision review officers in the current system. But the drawback to that is you can’t add any evidence to the claim, so – or to the appeal. And then third, there’s the notice of disagreement lane which is more traditional compared to the – in comparison with the old system. And that notice of disagreement lane will allow your appeal to go to the Board of Veterans’ Appeals.

Zach: And so let’s talk with Emma a little bit about what lanes are currently open under RAMP. There – and also I believe on your screen right now, we have put up what we’re trying to explain as Appeals Reform. We’re in the RAMP kind of part of this. RAMP stands for Rapid Appeals Modernization Procedure? And it is what is happening right now. It is essentially the way that VA is trying out Appeals Reform before it really goes live in February. There’s a limited number of cases that have been put into RAMP. So distinguishing between what RAMP is and what Appeals Reform is that’s really – RAMP is kind of our trial run here. So the lanes that are currently open?

Emma: So in RAMP, you can currently opt in to the supplemental claim lane or you can opt in to the higher level of review. And you can see those two in the rectangle of RAMP claim that we have up in the infographic. But those are the only two lanes open under RAMP right now. It’s sort of a test pilot program to see how these new lanes are going to work and just to get the kinks going and see where pitfalls might be. But those are the only two options right now.

Zach: And so when is the notice of disagreement lane open?

Brad: It’s currently scheduled to open in October 2018 on a limited basis much like RAMP itself is on a limited basis. But it should be fully open in February 2019.

Zach: And could veterans opt in to RAMP now?

Brad: Yes, they’re being given– initially, they were being invited in to join the RAMP program. But it’s our understanding now than any veteran who is interested and is in the current appeals program can opt in to RAMP on their own accord.

Zach: And we keep saying February of 2019. There are a couple of questions surrounding that. It’s likely to be February 2019, but when will new appeals start to actually be adjudicated under the new Appeals Reform system?

Emma: It should be after that. The regulations obviously have been proposed. We’re still in a comment period. We don’t have final regs yet. But if all goes according to plan, it should be shortly thereafter.

Zach: I think the understanding right now is that it’s going to be February 14. So mid-February is when VA is aiming to do this. So once that happens, once there are rating decisions, once a veteran gets a decision from the Department of Veterans Appeals, they are going to be in the Appeals Reform world. They’re going to have these choices, these lanes which you see on – a little bit on your screen and which Brad and Emma have been talking about. And so can veterans switch – now we’re in Appeals Reform, right? Can you switch lanes before VA issues a decision?

Emma: You can is a short answer.

Zach: It’s a short answer.

Emma: We’re not exactly sure how that’s going to work procedurally because obviously we’re not doing it yet. But you can. If you think you’re going to develop some new evidence, want to do a supplemental claim, but then decide, you know what? I think I have enough. I want to go to a higher level of review with an informal hearing and just point out where the errors might be. You can certainly do that.

Zach: And the most important thing about this, Emma, is effective data is maintained.

Emma: It maintains. Absolutely. As long as you’re meeting– doing everything within that one year deadline, filing supplemental claim, asking for a higher level of review within one year of that initial decision, you will keep your effective date.

Zach: And so that and that tends to answer when do decisions become final under this? And as you said – and this is just really important. That’s why I’m repeating it. You have one year like you do now for a Notice of Disagreement, you do have one year to keep appealing your– to appeal your case, pick your lane, and keep your case moving. But it’s really important to stay on top of your rights.

Brad: I just wanted to go back to one of the comments you made about the regulations and about it being ready, we’re hoping everything is ready in February 2019. There already are some decisions being made in the RAMP program without the benefit of the new regulations. So it’s – I’ve heard the analogy that they’re building the plane while they’re flying it. And so that was actually that’s been used by the VA to describe the process. But it hasn’t really left us with the rules of the road of how this is all supposed to work because they just released the regulations, they’re in flux. And so no one knows exactly how it’s all working at the moment.

Zach: That said I’m reminded of something that we spoke about a little bit before we started talking on Facebook Live, which is that while this is a dramatic change and it and – it cannot be overstated how dramatic the change is, the change is only to procedures. The law remains the same. The way that claims are rated is the same – increased rating is the same thing, service connection is the same thing. All of the bedrock principles of VA benefits law remains the same. This is just the kind of the overlay of it and the procedure to get things done. And while it is dramatic, there is some consistency and some continuity and that is that the substantive law stays the same. We have a question that says, “You say no new evidence is looked at in the higher review lane. And that’s new evidence submitted after you opt in to RAMP, right?” Let’s all try to cut through this. We’ll start with Bradley. It’s a really good question. And it’s part of what becomes really confusing as we work through this process.

Brad: So I think that’s right because part of the issue is with RAMP, you’re opting in at various stages of the appeals process. So in appeal– regular Appeals Reform that’s contemplated, you’ll get a decision much like a rating decision now, initial decision. And then if you want a higher level review, you can’t add any new evidence in. But if you’ve added evidence to the file and you opt in to a higher review, the higher review lane, that higher reviewer should look at everything that’s in the file up to the date of when you opted in to RAMP.

Zach: Emma?

Emma: I would agree. I think you would imagine it’s sort of like when you appeal to the court and the courts just looking at this snapshot record that the Board had when they made their decision. Same thing, your higher level reviewer, which is going to be similar to a DRO in all intents and purposes.

Zach: Which is a decision review officer.

Emma: Decision review officer should just be reviewing what evidence was there. But practically speaking, we don’t know. We haven’t seen that particular scenario yet.

Zach: Let’s pick a new lane, the notice of disagreement lane. So now, the veteran has opted for Board of Veterans’ Appeals review. The way it currently works is if a veteran is dissatisfied with a Regional Office decision, he or she files a Notice of Disagreement and can either pick the DRO, which we’ve already talked about kind of that version. Now let’s say we want to go to Washington DC and we want to be before the Board of Veterans’ Appeals. Veterans’ claims file is going to move from the Regional Office to Washington, and that’s where it’s going to be. And there are a couple of different things to know about that. Let’s talk about the direct docket Brad.

Brad: So the direct docket at the Board of Veterans’ Appeals, it’s our understanding that this is – this will be the fastest option at the Board. And that will be because there’ll be no additional evidence that’s added in to the file and there’ll be no hearing. So basically, if you opt in, you file an NOD and pick the direct docket, the case as it existed, when you made that selection will move up to the Board without any additional evidence or hearing.

Zach: All right. And what if we go with a hearing docket, Emma?

Emma: So there’d be no more travel Board hearings. Currently, the Board will do a travel Board hearing in local ROs and things like that. But right now, if you want a hearing, you can ask for one before a Board member. However, you cannot add additional evidence. So like the direct docket, it is just a matter of pointing out to the Board member, testifying about what is already in the record.

Zach: And last but not least, the evidence docket. Brad. Still at the Board.

Brad: So you’re still at the Board, and this is a case where you want the Board of Veterans’ Appeals to look at it and you – that may be for any number of reasons, including the fact that they are attorneys at the Board. And so if you’ve got a particularly complicated case, it may make sense to go directly there. But that’s when you want to submit additional evidence but you don’t want a hearing. So this is after you’ve made your selection, you can submit the evidence that the Board will review in addition to all the other evidence that’s already in the file.

Zach: Okay. Hopefully that’s it, and the Board will grant the claim and on the veterans will go with their lives with the benefits that they have earned intact. However, it may not happen. And so now there are two new – now there’s a new choice under Appeals Reform. Traditionally, if someone didn’t like their Board decision, they had to appeal to the Court of Appeals for Veterans Claims, which is a federal court that sits in Washington DC with nine judges on it. That is not their only option anymore. So you can still do that. Go to the Court of Appeals for Veterans Claims. But there is also a supplemental claim. So we continue with more lanes. Emma, talk about supplemental claim if you will?

Emma: Supplemental claim, you have to submit with new – something called new and relevant evidence. So similar to filing – trying to reopen a claim that was previously denied, you can go back to the beginning, go back to go, don’t collect $200. But using a specified form, you can say to VA, “Hey, I’ve got new evidence. It’s relevant to my claim. Please re-adjudicate this. And that evidence has to be new and relevant, which is a shift from what currently exists for reopening a claim under 3.156 in the regulations, which is new and material evidence. Now, in the regulations in the preamble to the regulations, an explanation of why the shift, Congress wanted the burden to be lowered. So we do know that new and relevant is supposed to be a lower threshold than new and material. But new and material was already a low threshold under existing case law, under Shade vs. Shinseki. We know that that evidence is going to be presumed to be credible. And we want to try to reopen claims. So I would assume, and I’m just guessing that new and relevant evidence would also be presumed to be credible and also would be a low and veteran-friendly threshold to reopening a claim and starting over again.

Zach: So the main difference though, because a veteran after a Board hearing is still likely to want to go to court because there’s going to be a legal issue or something that they’re going to need a court to take a look at. It’s going to be in a couple of – and we don’t really know yet. We don’t know how the Board is going to decide these. I don’t know that the Board really knows how to do this yet, although I know everybody is trying to learn. But it’s just one of the things that we really want veterans to be aware of that there is going to be a choice. They don’t have to go to court. The reason that they wouldn’t want to go to court though is they do have this new and relevant evidence or there is an ability to obtain it after the Board’s decision, and they’re going to probably want to get some advice on that and talk it through to see which way is the best way to go.

Currently, the way the regulation is written and it is unclear. These regulations are not final and it’s unclear if VA will change anything or if they will be challenged. Currently a veteran cannot be both in court and file a supplemental claim. So they will have to pick one or the other. One thing that is still very veteran-friendly in Appeals Reform is even after a court appeal, if a veteran is unsuccessful in court, they are still able to file that supplemental claim. So there really is nothing lost by going to the Court of Appeals for Veterans Claims, except it might take a little bit more time. But it is a good way to ensure that an independent federal court does stay involved in VA benefits and make sure that VA is following the law because since the court has been involved, I think it’s been a very good thing for both the Department of Veterans Affairs and for veterans. So the new and relevant evidence may be submitted. Let’s see. Trying to keep track of lanes here. So we’re in a lane in which it’s either a supplemental claim or even a new claim. We can talk about the way the duty to assist is going to overlay Appeals Reform. And Brad, if you could take the first step at it.

Brad: Sure. The duty to assist as it relates to supplemental claims will come into play only once you’ve submitted that new and relevant evidence or identified new and relevant evidence. And then it’ll be the traditional duty to assist that VA will have to go out and get additional records to get medical examinations, opinions, etcetera. Also, with any new claim, the duty to assist will attach. But the difference in this new system versus the old system is the duty to assist will then end. And it’s really only applicable in the supplemental claim lane. And that’s a big change.

Zach: And so what changes – can you talk a little bit about – there’s no duty to assist really anymore at the Board, right? And so, that’s a seismic shift. But the Board can still remand. That is send back cases to the Regional Office and tell them that they have to comply with the duty to assist.

Emma: Absolutely. So the Board itself can’t determine – it doesn’t have a duty to assist the veteran in the development of his or her claim. So they’re not going to remand just for the purpose of developing evidence in the record. But if they review of the RO has done and has decided that, you know what, the RO should have obtained this evidence in the first instance. They can remand the RO to comply with the duty to assist. So how it’s practically going to work for us and for you, the veteran, is– I don’t know that it will be very much different because if the RO should have gotten it, the Board probably should get it too and it just becomes a little unclear about where’s that bright line going to be. Is it a bright line and how’s it going to work?

Zach: One thing that I think that people really need to, veterans especially need to be aware of and their advocates as well is if the Board does remand and commands the Regional Office to comply with a duty to assist, the way the regulations and statute read right now, you don’t automatically go back up to the Board of Veterans’ Appeals because there is no more Form 9. There is no more Statement of the Case. There is no more Form 8. A veteran and in his or her representative are going to have to stay on top of this because once there is a rating decision, even if it’s been remanded from the Board, you have to file a new Notice of Disagreement. And you have to think about which lane you’re in again. I

t is entirely the veteran’s choice. And so, it’s good and it’s bad, right? It’s good in that veterans have the ultimate say in what happens in their case. It’s bad in that they really, really need to stay active and involved in their case. And as soon as they get a decision from the Department of Veterans Affairs, it is a wise thing to go with the veterans service organization that is helping you or with the attorney or with the accredited representative or whoever it is that is helping with the case and really game plan how it is you want to proceed with your case because there are a lot of protections that existed under the old system that are no longer going to exist in Appeals Reform, which hopefully at the end of the day will be a really good thing and will keep cases moving in a nice orderly quick fashion. But it is something that everybody, VA, representatives and veterans all need to be aware of because it really is a seismic shift. So do you need a specific – and now talking about being on top of your rights. Do you need a specific form for a supplemental claim?

Emma: Absolutely. You do need to use VA’s supplemental claim form to file a supplemental claim. And you’re going to need to identify the new and relevant evidence or identify where VA can obtain the new and relevant evidence. That claim won’t start until you do that. So you can file it. But if you haven’t identified new and relevant evidence, VA won’t consider that claim– claim to be complete. You do have– your effective data is preserved within that year period. As long as you’re completing all of this within a year, you should be safe maintaining that effective date. But you do have to use VA’s own prescribed form.  I don’t believe we’ve seen it yet. But I could be wrong about that.

Zach: I don’t believe that we have seen it yet. When we do, I’m sure that we’ll put some samples up on our website. And this is a good opportunity for me to plug the website, www.cck-law.com. That is cck-law.com. For all your Appeals Reform needs – sorry, for most of your Appeals Reform needs as this develops, we will keep adding content to our website and we will stay in touch with our veteran clients and our claimant clients as much as we can to guide them through what is going to be probably a little bit of a rocky take off, that ends up hopefully being a very good thing. So let’s switch back around just a little bit because here we are in our lanes. That was our Board and supplemental claim lane. Let’s talk a little bit more. We talked about it at the beginning, but let’s kind of end on the note of higher level review. Who is it that adjudicates higher level review claims? And are they the same or different VA employees as those participating in the previous decision? Brad.

Brad: So it’s our understanding that the higher level review will be done by employees who are not involved in the initial decision for the claim. And they tend to be more experienced adjudicators, occasionally attorneys. But usually adjudicators who have been doing this significantly longer amount of time than those doing the initial decisions. Again, it’s our understanding they will be akin to the decision review officers. And so they may be drawing those higher-level adjudicators from the ranks of the decision review officers as the system moves over to the new legislation.

Zach: Can they submit new evidence in this claim stream?

Emma: You cannot. You can however request a conference with this person that’s similar to a DRO, decision review officer. At that conference, you can’t add anything new in terms of evidence. But you can point out where you think the errors might have occurred. And that person will have the power to send the claim back to the Regional Office for further development if they determine a duty to assist error has occurred. So if you have that conference, you talk about X, Y, and Z. And at that point, the higher level reviewer determines that an exam is necessary and one wasn’t obtained, they can send it back for development.

Brad: And let me just chime in because I think this goes to what Zach was talking about. It’s going to be so important to work with your veteran service organization representative, attorney, agent, whoever it is you’re working with your claim because every time you start moving up the ladder in the appeals process, let’s say you go to the Board and you get a remand, and they send it back down to the supplemental claim lane. You’re back to square zero. So once you’re in supplemental claim lane and you get a decision, you can then go file another supplemental claim, a higher level review, or the Board. So every time you get sent back to do more development, it’s like you’re starting from the beginning. And you have to make all those choices again. And maybe you want to make different choices sort of the second pass-through and a different choice the third pass through. But you really want to think carefully about what you’re doing.

Emma: But on the upside, you are maintaining your effective date. So –

Zach: Right, very important.

Emma: It is on you to make sure you’re appealing and continue to appeal as you see fit or as you need to. But the point of all this and the upshot and the good news is that you are preserving your initial effective date, which is very important.

Zach: So now talked about the benefits of Appeals Reform, when do you get to opt in? When can veterans opt in to Appeals Reform once it is in effect?

Emma: Go ahead.

Zach: Trouble. Let’s go Brad first, then Emma.

Brad: It’s a little unclear what is going to ultimately be. There have been some proposals in the proposed regulations that veterans will be able to opt in after an SOC, Statement of the Case, or Supplemental Statement of the Case. There’s also been talk that once they get a Board of Veterans’ Appeals remand, they’ll be able to opt in at that point. So again, it’s a little unclear once – assuming everything goes into effect in February 2019. But VA seems to be encouraging everyone to move to the new system. So we have no reason to believe they won’t continue to encourage folks to do that.

Zach: And Emma, do you want to take a stab at when can veterans start switching lanes?

Emma: So not entirely clear when they can start switching lanes. It’s going to matter of when you opt in, I believe, in the process. And I think that if you’re filing a brand-new claim after February 2019, I think that this should work the way it’s presented. That you get a decision after that date, you can switch your lanes as needed. But it is not clear for legacy folks, people that have current active appeals that then opt in to Appeals Reform, into these lanes, when they can do what.

Zach: So stay tuned. We’ll leave it on a cliff-hanger as we work our way through. It is now almost October, and so the notice of disagreement lane is going to be opening up for a limited number of veterans and we will see how that goes. We will keep all of the people who follow us on Facebook and check out our website and our clients very importantly up to speed on what CCK people are seeing as Appeals Reform moves forward. And thank you very much. I’m Zach Stolz. This was Brad Hemmings and Emma Peterson from Chisholm Chisholm & Kilpatrick. Thank you very much for watching and listening.

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