VA Appeals Reform: RAMP in Review (Jan. 2019)
- What is Appeals Reform?
- What is the Rapid Appeals Modernization Program (RAMP)?
- How many claims have been transferred to RAMP so far? How long are they taking?
- What is CCK’s experience with RAMP claims timing?
- What does the new appeals system look like at the Agency of Original Jurisdiction level?
- Are appeals in the Higher-Level Review lane getting kicked to the Supplemental Claim lane?
- How has the Board of Veterans’ Appeals (BVA) been coping with RAMP appeals so far?
- Board (BVA) Grants Backlog
- What does the new appeals system look like at the Board of Veterans’ Appeals level?
- Which Board docket have RAMP participants been selecting most?
- Viewer Question: Can you still transfer an existing claim to RAMP?
- Viewer Question: If you opt in to RAMP, will you lose your original date of appeal?
- Why are lawmakers concerned about the IT system for Appeals Reform?
- How will VA balance new appeals with legacy appeals?
- Where are RAMP claims being processed? How are VA adjudicators being trained?
- *IMPORTANT* IF YOU ARE OPTING IN TO THE NEW SYSTEM: How will the Board of Veterans Appeals (BVA) prioritize Legacy vs. new appeals?
- How is VA training adjudicators, VSOs, and advocates on the new appeals system?
- CCK’s experience with the changes to VA’s decision letter format
- Will VA appeals reform be implemented on time? What does that mean for a veteran appealing a VA claim after appeals reform is implemented?
Video Transcript:
Brad Hennings: Good afternoon and welcome to CCK live. This is Brad Hennings with
Chisholm Chisholm & Kilpatrick, and today I’m joined by Courtney Ross and Mike Lostritto. And we’re here today to talk a little bit about RAMP in the Rearview- the Rapid Appeals Modernization Program for the VA Appeals System.
Before we get going I just want to encourage everyone, if they have any questions, as we’re talking today, please write it in the comments there on Facebook directly. We’re happy to answer anything we can now while we’re live. And even if we’re not live, please reach out to us on Facebook or via our website, cck-law.com, and we’d be happy to try to respond with any questions that you might have.
So, let’s go and talk a little bit about what is Appeals Reform? What are the names for it? What is it called?
Courtney Ross: Yes. So, Appeals Reform is the change in law that’s taking place next month. So, in August of 2017, Congress passed a new law which is essentially going to change the procedural process for claims pending within the VA. You’ll hear a number of names used for Appeals Reform is one name that people call it. The Appeals Modernization Act, the new system you might hear it referred to as. But it’s all the same thing. It’s the new law that Congress has passed to deal with the backlog of claims that has been pending in VA for decades really.
Brad: Okay, so now, what is the Rapid Appeals Modernization Program and why was it created, Mike?
Mike Lostritto: Right, so it’s known as RAMP. And basically, this was a pilot program that VA began to try to test the waters a little bit for their internal systems but also for advocates to get used to the new system that in a month from now will become effective. And so, like I said, this is an appeal- this is a pilot program to really start the transition into the new process. Certain lanes were opened up initially followed by the Board lane, to kind of ease the transition.
Brad: So now, how many appeals have been transferred to this RAMP program from what we’re going to call the Legacy Appeals process, or what everyone currently knows as the VA appeals process.
Mike: So, I think the most recent data that we have is from November of 2018. And as of that date, approximately 75,000 or so Legacy appeals were transferred to the new system- or rather to the RAMP pilot program. And so, that’s where we stood in November of 2018.
Brad: Okay. Well, Courtney what’s the average processing time in RAMP, and is it faster or slower compared to the Legacy system?
Courtney: Sure. So, the average processing time is right around 119 days right now. It is faster than the Legacy system; veterans can wait up to a year or more in the Legacy system. So, 119 days is a significant improvement for timing.
Brad: So, is RAMP helping with the appeals backlog?
Courtney: In some way, so it’s actually reduced the appeals inventory by 14%. And a lot of it has to do with those claims coming from the Legacy appeals system in to the RAMP program.
Brad: So, Mike, we have a number of cases here at CCK that we’ve opted into this RAMP program. And, you know, what’s been our experience? Or your experience with these cases in terms of timing?
Mike: So, despite the average of 119 days, here at CCK we have not seen that. The cases that we’ve opted in, specifically the higher-level review, we’ve seen much longer wait times than that. So, I think it’s important to keep in mind that, you know, this is just an average. So, our experience here has been that veterans unfortunately have been waiting much longer than that to receive their initial RAMP decision.
Brad: Okay. So, what does this new appeal system look like at the agency of original jurisdiction level, also known as the regional office level, or from your VA medical center?
Courtney: Sure. So, now when you get a rating decision, your only option is to file an NOD and the process continues kind of with one option. Under the new system, when you file a claim you get a rating decision from one of the regional offices. You have three different procedural options that you can choose to move forward with your case. One of them is filing an NOD or appealing that decision and going directly to the Board.
Brad: Now, that’s a Notice of Disagreement when you say NOD?
Courtney: Yes. Exactly.
Brad: Okay.
Courtney: One of them is to file what is called the supplemental claim. So, your case would still be- it would remain with the regional office, and you would be required to submit new and relevant evidence and the regional office will take another look at that evidence that you’re submitting, and issue another decision on your claim.
The third option is, again, staying with the regional office, it’s opting your case into what’s called the higher-level review. You are not allowed to submit any additional evidence if you opt into this lane. And basically what it means is that a more experienced decision review officer would be- re-looking at your case and the evidence is already of record in making a decision- issuing a new decision again on your claim.
Brad: So, the higher-level review is pretty similar or akin to DRO or decision review officer option that existed before. Although they don’t – they’re apparently not calling them DRO’s. They’re calling them experienced adjudicators, whatever that means.
Courtney: Yes.
Brad: Okay. So, Mike, these appeals in the higher-level review lane, are they getting kicked to the supplemental claim lane and why?
Mike: In a lot of cases they are. This is one thing we’re certainly seeing here at CCK. The veteran will have opted into RAMP, chosen the higher-level review lane, and what the VA will do is they will identify, in some cases, a duty to assist error. Just meaning that there’s a problem that they’ve identified with maybe an exam that the veteran was rendered or provided with, or some other aspect of the evidence that was developed for the case.
And what they’ll do is they will basically kick the appeal to the supplemental claim lane. This has a couple of different ramifications. Number one, I think, going back to the time it’s taking on average to process decisions. You know for veterans, they don’t see- rightfully so, they don’t see any difference in the time that it’s taking them- or taking VA to adjudicate their claim. Regardless of the fact that it’s been kicked to a new lane. But in VA’s eyes a lot of times, that can start the clock anew.
And so, you know, they will maybe not report the time it’s taking on that appeal in the same way that they would if the appeal had stayed in higher-level review the entire time.
Brad: Got it. So, when RAMP first started, the appeals lane- also known as the Board lane or the Notice of Disagreement lane, was not open to veterans. When did that open up as part of RAMP?
Courtney: Recently. Just as of October of 2018.
Brad: Okay. Well, how was the Board of Veterans’ Appeals been coping with these RAMP appeals so far?
Courtney: Yes. So in fiscal year 2018, I think the Board took- make a lot of decisions, or a lot of movements to get ready for the increased appeals that were coming their way. So, they actually had a 62% increase in the number of Board decisions that were issued for fiscal year 2018. It was just over 85,000 compared to, I think around 52,000 a year before. So that’s a significant increase. In addition, they’ve been increasing the personnel at the Board in preparation for again, the increasing number of appeals that are coming their way.
So, they hired just over 200 people in fiscal year 2018. Which brings the total Board personnel to just over a thousand. And interestingly just 5 years ago, the number of employees at the Board was half of that. So, they’ve taken steps to prepare for the increased appeals that are going to be coming with both RAMP appeals and once the new Appeals Reform actually goes into effect.
Brad: So, with all these extra employees working on these cases and all these extra decisions, what does that mean in terms of promulgating an issue- when the Board grants something, that a regional office has to do with to cope promulgating it by rating decision, so is there a backlog of those Board grants? And what does that mean?
Mike: Yes. Absolutely. So, as Courtney was saying, there was approximately 62% increase in Board grants in- or decisions, I should say, in 2018 versus 2017. And that has led to more Board grants. And so, what has happened is, is that it’s taking much longer for the regional offices to implement those Board grants. Meaning, issue a rating decision that finalizes the Board’s grant and actually paying the veteran retroactive benefits going back.
And so, while it’s good that they are issuing more decisions and there are more grants, they really haven’t kept up on the back end of that in hiring personnel to implement these grants. And so, we are seeing delays unfortunately for a lot of our veteran clients who have won their case at the Board, been issued a grant, and now they’re waiting just for that grant to be implemented down below at the agency level.
Brad: So, our experience has been that this was a significant problem about midway through 2018. That the problems eased a little bit as they’ve- as VA has farmed out a lot of these cases around the country for them to be implemented. And they’re trying to hire new folks to do these implementations but it’s definitely something to keep an eye on.
Mike: Absolutely.
Brad: So let’s talk a little bit about what this new appeal system looks like at the Board of Veterans Appeals’ level.
Courtney: Sure. So, if you get a rating decision and you choose to, or you choose the appeals lane, or to file the Notice of Disagreement to the Board, you have actually have three additional options at this point for how you want to move forward with your appeal at the Board. There’s a hearing lane that you can select when you file the Notice of Disagreement- meaning you’re requesting a Board hearing. There’s what’s called the direct docket. So you’d file the Notice of Disagreement and no additional evidence can be submitted if you choose that option. So, the Board will just be considering what are the evidence of record at the time of the rating decision that you got from the regional office.
The third option is the evidence lane. So, you can submit the Notice of Disagreement and request time to submit evidence. And once you file the Notice of Disagreement, you have 90-day period to submit any additional evidence that you want the Board to consider.
Brad: So, that’s a great thing to mention about the ability to add evidence. In the new system, we’re dealing with- in some of the options, what they call a close record, meaning you can’t add additional evidence subsequent to the initial rating decision. And that’s true in the Board’s direct review lane. And that’s the lane they expect to go fastest and be decided within 365 days. And it’s also true within the higher-level review lane where you’re not able to add any additional evidence. So, that’s a significant difference from the current appeals system. I just wanted to point that out.
Courtney: And I should mention too that in the hearing lane, you can submit evidence. You have to submit it at the hearing or again, you’ll have a 90-day period after the hearing where you can submit it.
Brad: Speaking of that. So, which docket have RAMP participants been choosing most, Mike?
Mike: This is interesting. Because there have been- the latest numbers that we have, approximately a little over a thousand RAMP decisions that have been appealed to the Board, in one of the main three lanes. Out of those, greater than 50% of those veterans have elected a hearing. And so, there is a significant backlog in that particular lane.
Brad: So, it’s my understanding that because- not only there’s a tremendous hearing backlog at the Board of Veterans’ Appeals that’s many years long, and it’s my understanding that these cases will even go to the back of the line compared to the Legacy hearing cases. So, that’s one thing to really keep in mind in the RAMP system if you’re asking for a hearing at the Board of Veterans’ Appeals. It may be a significant wait, and I mean years, and years, and years. Maybe 5 to 7 years before you get a hearing on your case. Just something to keep in mind.
We’ve got a question here. And that is, if you didn’t file your recent appeal in the new RAMP program, can you at any time, ask to change it to RAMP? That’s a great question.
Courtney: As of right now, you can. Before the new law goes into effect which is 30 days. So, you can reach out to your regional office. There’s a form that you can fill out to opt in to the RAMP program. And when you do so you’ll have to make the selection for which lane that you want to select including the supplemental claim lane, or the higher-level review lane.
Brad: And what’s going to happen, Mike, once full-blown Appeals Reform, it takes effect 30 days from now?
Mike: So, once that happens there will be far fewer opportunities for veterans to opt in, if they’re in Legacy opt in to the new Appeals Reform. And so, what we’re finding is that, really veterans will have the opportunity to opt in to the new system after they’ve received a Statement of the Case or an SOC, or an SSOC, or on remand. If the case goes to the Board and is remanded back. So, it really will be much more — there will be much more limited opportunities for veterans to get in to the new system. So, I think if they want to do so, they have a little bit of time left, but they should consider opting in to RAMP.
Brad: But one thing that we should emphasize is that the actual underlying law of veterans benefits is staying exactly the same. All the substantive law and entitlement is exactly the same. The only thing that’s changing in Appeals Reform are the processes to get you there.
Okay, so let’s talk a little bit- let’s take a break for a second. And I just want to say again this is Brad Hennings with CCK Live, Chisholm Chisholm & Kilpatrick at cck-law.com. Again, if anyone’s got any questions, please write to us on Facebook. And we will try to address them here. If they’re after the live broadcast, we’ll try to get to them- reach out to us, we’ll try to get to them then. I’m joined by Courtney Ross and Mike Lostritto, both who are attorneys here at CCK.
And we have another question. If you opt in to RAMP, will you lose your original date of appeal?
Courtney: No. No. you will not lose your original date of appeal. That effective date is still good assuming once you get a decision in the RAMP, you appeal within the appropriate time frame, which should be one year from the date of that decision.
Mike: And I think it is important to note though that if veterans do opt in to RAMP, there really is no going back to the old Legacy system. So, you know, before you make the decision to opt in to RAMP, perhaps talk to your representative, or really think through the ramifications of opting in. Because you know, it’s really a one-way street.
Brad: Particularly if you have a very old appeal, meaning that you’ve been working on your case for many years. And you’re just waiting for it to be decided at the Board of veterans appeals. It may be more advantageous to stay in the Legacy system. It’s very case specific, veteran specific. So please, reach out to any resources you may have- be it a Veterans Service Organization, a VA accredited agent, VA accredited attorney- someone to talk a little bit about your case and whether opting in to RAMP or eventually Appeals Reform makes sense. Or whether you should stay in the Legacy system. It’s very veteran specific.
So, what are the concerns that we have? Why are lawmakers and advocates so concerned about the information technology required to transition to appeals modernization?
Courtney: Yes. So as part of it, VA is creating a new IT system that is a- they’re planning to use as part of the new Appeals Reform system. The concern is that the new IT system is not yet ready to be up and running at the same time that the new law is set to go into effect. And so, there’s some concern especially with what we saw in the news recently about what happened with the GI bill and how- when the changes were made to the law, but the IT systems were not yet updated, it ended up resulting in a bit of a mess in terms of veterans not being paid correctly, or delayed payments. And so, I think there’s some concern that there’s some potential for issue- or similar issues here if the IT system for the new system is not ready to go.
Brad: We’re expecting at CCK that there will be certainly bumps in the road. And, that the implementation of this- although everyone involved is very well meaning, it could be a little rocky at points. So, everyone should be prepared to have to deal with some of that as part of- and that’s true for anything new. Particularly when you’re dealing with a large government agency with thousands and thousands of employees. And dealing with some antiquated IT systems that they’ve been desperately trying to upgrade. But I think they’re a little behind the curve on that. And I think that’s what Congress and VA itself has indicated
Courtney: Yes.
Mike: Absolutely.
Brad: So, how is VA addressing the concerns about starting to process these new appeals in the new appeals system while continuing to get through the Legacy claims backlog, or appeals backlog which I understood to be between four and five hundred thousand cases?
Mike: So, they’ve really set a target, or a goal for eliminating the Legacy inventory. And so, I think they’re going to slowly going to phase out the old appeals as people start opting into the new system and filing new claims in the new system. So, by fiscal year 2020, they’re looking to, in their words, have an inventory of Legacy appeals down to what they call a steady state. And that essentially means, from our understanding is that they want to complete all Legacy appeals that are at the NOD and VA 9 stages.
And so, I think, really their goal is to slowly phase those cases out as it’s a slow roll transition into the new system.
Brad: Is that a realistic goal?
Mike: I don’t know. I would be a little skeptical about it, to be honest with you. You know? These cases really take a long time sometimes. And so, you know, 2020 isn’t that far away really. So, I would be a little skeptical.
Brad: You know, our experience and our belief at CCK is given the history of Legacy appeals and the ability to appeal to the US Court of Appeals for Veterans Claims and beyond, as well as the ability of the Board of Veterans’ Appeals to remand cases back to the regional offices- we figure there’s at least another good five- five years plus to flush out all the rest of the Legacy cases, completely. It’s probably 5 to 10 years.
Again, that won’t be the majority. I think they will hit a lot in this next couple years but, there will still be some struggles.
Mike: Absolutely.
Brad: So, where are the RAMP claims being processed? And how are adjudicators being transitioned into these new systems?
Courtney: Yes. So there’s about 8 to 12 different regional offices that had been identified as regional offices that were specialized in processing RAMP appeals. With the goal that, you now, by identifying certain regional offices, they could get through the RAMP appeals a little bit quicker. And I think that they are transitioning employees at the regional offices. So, what mentioned before about DRO’s or decision review officers, they are being trained to be considered the higher-level reviewers so that that they can make the decisions in the higher-level review lanes.
Brad: So, how has the Board of Veterans’ Appeals going to prioritize these RAMP and these full Appeals Reform cases versus Legacy, once both systems are implemented? So, come 30 days from now, February 19th 2019, the new system goes into effect. How is the Board supposed to decide what it’s going to be working on?
Mike: I think this is a really important point. They have said- VA has said that Legacy appeals will be the top priority. And so, for veterans that are currently in the Legacy system, you know, that’s something to keep in mind. Kind of at the bottom of the priority list will certainly be cases with hearings in the new system. And also, cases where the veteran has opted into the BVA lane and has additional evidence that they want to submit.
And so, you know, with Legacy cases taking top priority, I think that’s an important consideration when a veteran decides whether they want to actually opt in to RAMP, or the new system. And really important when they consider whether they want to opt into one of the Board lanes with a hearing. Because those cases will unfortunately be at the bottom of the priority list.
Brad: So, let’s talk a little bit about education and training and awareness of this new system. It’s a whole new system that VA employees, veterans, VSO’s and advocates are going to have to learn in order for everyone to transition smoothly into the system. Thus far, there’s been fairly little publicity and communication about the details of RAMP and Appeals Reform. So, what’s our experience at CCK with adjudicator’s understanding of the new system? Basically, RAMP decisions we’ve received, our own employees we’ve talked to, Board of Veterans’ Appeals employees we’ve talk to.
Courtney: Yes. I think this kind of goes back to your point that it’s going to be a little bit bumpy as we get into the new system. I think our experience has been that, you know, people are still learning the new system and don’t have yet have a full understanding of how they should be adjudicating all of these appeals and how the procedural steps are working yet.
I mean like you said, there’s been a little bit- there’s been little publicity about it. And so, I think it’s going to be a little bit bumpy as the new law goes into effect if RAMP is any reflection of what is to come.
Mike: Yes. I think in some of the RAMP cases that we’ve had here, the decisions have, unfortunately, in a lot ways contains some of the same errors we’ve seen all along. You know, to your point earlier, Brad, an important point, the substance of the law here hasn’t changed. It’s really the procedural structure that veterans have to work their way through the appellate system that’s what’s changed here.
Despite the substance of the law staying the same, unfortunately we’re really seeing the same type of VA errors. We haven’t seen as many favorable findings of facts listed as maybe we have hoped initially. And the wait times have been longer than the 125-day projected stated goal in higher-level review.
Brad: That raises up a great point. And that is that a decision format in the new appeals system is supposed to be a much more detailed than has existed in the past in terms of rating decisions where VA is supposed to lay out what sort of favorable findings it’s made in favor of the veteran. It’s supposed to talk about all the evidence, it’s supposed to talk about what evidence is necessary to substantiate the claim if it’s a denial, and how they can get a copy of the evidence that was developed, that was used to deny their claim.
And our experience has been that those decision notices have not, in RAMP at least, have not lived up to the promise of the statute. We haven’t seen too many Board decisions yet. The ones we have seen are I think a little bit closer than the regional office decisions. But they’re obviously a work in progress. As VA has said these are pilot programs. So, we’re hopeful that now with the full implementation of the new law, we’ll get a little bit better results there.
Mike: Yes.
Brad: So, what do we think- so, here’s the question of the day. Do we think Appeals Reform will be implemented on time? And by on time, the earliest date that Appeals Reform could be implemented would be February 4th, 2019.
Courtney: Well, the regulations were published today. And that means, 30 days from today the law can go into effect which would put Appeals Reform slightly behind schedule. But I think, generally speaking, still on time.
Brad: So, it would be February 19th, is our understanding. So, that the Secretary of VA, Robert Wilkie, has certified that VA is ready to go, and the full system will go into effect February 19th. So, what happens then? Let’s say you have two veterans, Mike. One gets a rating decision dated February 14th, Valentine’s day. And another gets a decision dated February 19th. What is the difference between those two veterans? How they’re going to be treated differently?
Mike: So, in the first example, because the veteran received the rating decision prior to the law took effect, that veteran would have the ability to maintain their Legacy status essentially. They would remain in the Legacy system until they had one of the three opportunities down the road to opt in to the new system again. After an SOC, an SSOC, you know, on coming back on remand from the Board.
In the second example, the veteran that receives the rating decision on the date that the law became effective, February 19th, or will become effective, February 19th, that veteran’s going to be in the new system. And so, they would be under the new procedural laws that will govern, you know, the new process- the three lanes. The higher-level review, supplemental claim and Board lanes that we have going forward.
Brad: Well, with that, are there any parting thoughts? Or additional things you’d like to add? Courtney?
Courtney: I think, you know? There’s a lot of changes- procedural changes with the new law. And so, I think it’s going to be a little bit of a learning curve for veterans, representatives, and also the VA adjudicators themselves. But I think that we have done a decent job kind of preparing for the law to go into place. And we’ll, we’ll see.
Brad: Mike?
Mike: Yes. I would just say that you know, I think if veterans out there that are in the Legacy system right now, it’s important to really assess the negatives and the positives of opting into RAMP while they still can. Or down the road, into Appeals Reform. Knowing that Legacy appeals at the Board will take priority and that if they were to request a hearing, they should probably think long and hard about it because that could potentially mean that their case would take several years longer than maybe it might have otherwise.
So, you know, I just would say that, you know, there are negatives, but there are also positives to the new system. And it’s really incumbent upon the veteran and the veteran’s representative to kind of think it through before they make any drastic decision.
Brad: That’s a great point. Again, we can’t emphasize enough to seek help when you’re trying to make some of these decisions- either from a veteran service organization, a state service organization, a VA accredited agent, or VA accredited attorneys like CCK, before you make those kinds of decisions. Because they kind of have significant impacts on the timeliness and the quality, potentially, of your claim.
With that, I will say that CCK has spent an inordinate amount of time over the last year and a half trying to work through what Appeals Reform means for our clients, for our future clients, for the system as a whole. And we feel confident that we will all get it right here eventually. And that we’ve got a path through the new system. Although it may be confusing and a little bumpy at times.
Again, I’m Brad Hennings. This is Courtney Ross, Mike Lostritto with CCK Live, it’s Chisholm Chisholm & Kilpatrick. Please, if you’ve got any additional questions or you’re seeing this when it’s not live, drop us a line at Facebook or go to our website at cck-law.com. Thank you so much for joining us, and please reach out if anyone’s got any questions. Thanks.
