VA Claims & Appeals Timeline

Video Transcription:

Emma Peterson: Good afternoon, and welcome to CCK’s Facebook live. Today, we are going to be talking about the VA disability claims and appeal process timeline, briefly touching on the old legacy system and mainly diving into the time frame for the new AMA system. Today, I am joined by my colleagues Kayla D’Onofrio and Mike Lostritto. And, we will be going through the information we have today, again, about the VA Disability Claims timeline and appeals process. However, please note that things are rapidly changing for a couple of reasons. First and foremost, we are all still in the throes of the pandemic that is Covid-19. And this has caused a delay in a number of areas as I am sure you all can imagine from scheduling VA exams just to personnel working from home or working in reduced rates. So, the numbers we provide today might shift rapidly. And number two, the information that we have is for fiscal year 2019. So, as we are about halfway through fiscal year 2020, we will find out the numbers are going forward but the numbers we have right now really are for the last fiscal year. But with that, just note that as we can, we will pop up some infographics. You can follow along with us to understand what we are talking about in terms of the claims stream. But, please feel free to post questions in the comments, or send a message to us on Facebook, comments on YouTube. And, we will try to get back to you just best as we can. So, with that, let us dive in. Okay, as of April 2020, as of a few months ago, initial claims that were filed with VA were being decided on average in about a hundred and five-point nine days. A couple of that point ninth of a day but that is not pretty quick compared to what things used to be. So Mike briefly, what was the old legacy system and why are we no longer using it for new claims?

Mike Lostritto: Thanks, Emma. Yes, the legacy system was the prior system that VA used to adjudicate claims for VA benefits and so this dealt with the procedural steps or hurdles that a veteran would have to go through when filing a claim. It did not deal so much with the substantive law but it dealt with the procedural steps that a veteran would have to go through when filing a claim and appealing a denial. That system is being slowly phased out and so for new claims that are filed and any decision that is issued on or after February 19th, 2019 which are decisions that are now being issued. Those decisions and those claims will be adjudicated in the new appeal system. And that is what we are going to talk about a little bit later, the Appeals Modernization act. That is a piece of legislation that was passed by Congress and signed by the president and that now governs the appellate process for claims for benefits within the Department of Veterans Affairs. Again, I just want to emphasize that deals with the procedural aspect of deciding a claim not necessarily the substantive law, much of the substance of VA law has stayed the same.

Emma: So under that legacy system and we are going to post up a graphic for you as you can see it sort of a straight up-and-down line. A veteran would file their initial claim they would get a rating decision and then they would have to file that notice of disagreement. If they did not agree with either VA’s decision to deny them benefits or they did not agree with the rating they were assigned, they want more benefits. So Mike what are some numbers that we know in terms of how long that process would take for our veteran’s appeal about the initial rating decision?

Mike: Sure. So like you said once a veteran receives a rating decision. They then have one year from the date that the rating decision is issued to file a legacy notice of disagreement. Once that notice of disagreement is filed, what VA is required to do is issue a statement of the case or a SOC as it is known from data and information we have been able to obtain as of the fiscal year 2019. It has been taking VA or took VA approximately four hundred and ninety-one days to then issue a statement of the case in response to the veteran filing a notice of disagreement. And so at this stage of the process that is the length that is taking VA to act and take the next step as part of the appellate process. The veteran has filed the notice of disagreement and therefore VA then has the obligation to file a statement of the case.

Emma: So under the legacy system that claim was just sitting with VBA for over a year, the veterans disagreed with it. Nothing is really happening other than we are waiting for this SOC. And then the next step in the process is to say, “I really do want to appeal, I was not kidding the first time around. Here is my VA form nine.” Was it still taking a long time for veterans to file those or what was the average time for a veteran to file VA-nine once they got that SOC?

Mike: Based on the data on average, it was taking veterans approximately thirty-seven days to say, “Yes. I want to continue appealing this denial. I am filing this VA form nine or substantive appeal as it was known.” Veterans generally speaking had sixty days, I am sorry, to file the form VA-nine from the date that the statement of the case was issued. But like I said the data suggests that veterans were doing so much sooner than that within typically thirty-seven days of receiving that statement of the case.

Emma: But then the next part, Mike can explain this. A little more detail got a little wonky. So you filed the VA-nine and then it seems like a couple more things need to happen in the process for your appeal to actually get to the board under the legacy system. So can you talk us through that in sort of where the delays come in?

Mike: Sure and much of the delay comes in at this stage. When a veteran seeking further appeal at the board of veterans appeals. So up until now, we have said that the veteran will have filed a form nine of VA-nine in response to the statement of the case, but then at that point, the case has to be transferred from the regional office to the board. And in order to do so, the regional office needs to certify the appeal to the board and that on average was taking approximately two hundred forty-six days and this is a significant delay and it is unfortunate because at this stage of the game, the onus really is on VA to take that next step and certify the case to the board. Veterans are kind of in a holding pattern waiting for VA to act. So after the time has come that VA has issued the certification letter and the veterans appeal has moved from the local regional office to the board. The next step then is again on VA and at that point, once the board is in receipt of the certification they have to dock at the appeal and docketing typically according to our data was taking an average of three hundred and forty additional days for that to happen. Again, a significant delay almost another year on average for that to happen. The appeal or the claim is still within VA’s jurisdiction at that point or its with the board at that point. So again, the veteran does not need to do anything. They are just waiting for VA to take that next step. At that point, the board once it makes a decision, it can do one of three things generally speaking: It can grant the issue. It can deny the issue or can reman the issue. With remans as many of us know, the claim is or the issue has not been finally decided and so the case then goes back to the regional office for further adjudication, maybe further development and again from the data that we have seen remans are taking or were taking as of fiscal year 2019 approximately five hundred nineteen additional days to be decided and to be worked. And so as you can tell from these time frames, this is a significant delay and it is a significantly long process that veterans have to endure in order to have their case heard and adjudicated. All told, when you take a look at the numbers on average, this takes a little over five years for a case to be decided if it goes to the board. And that is very significant and it can be very frustrating because as we have discussed much of the onuses on VA to act and to take the next step in the appeal process. Veterans when their action is required we have seen that they do so fairly quickly by filing the necessary form nine and the notice of disagreement. So it is a system that was causing significant delay and I think one important thing to note is that these numbers are based on fiscal year 2019 as we discussed and what we are seeing now in 2020 is that actually VA is working these legacy cases much faster than they have in the past and we will probably get into a little bit as to why that is later in our discussion. But some of these numbers it will be interesting to see whether some of these numbers are in fact still what they were reported to be in 2019.

Emma: And that is an interesting point. And a good point to know is that if you have a legacy case that is still out there in the appeals process, we in our practice had been seeing these go extremely fast. Whereas it used to take a couple of years to get a SOC issued. Now, we are seeing them issued within a month of that NOD. So that is something to just keep in mind reach out to your VA, your accredited rep, your attorney. Whoever you are working with on your claim to make sure that you are keeping an eyeball on your appeal to headlines and not missing anything because VAs moving a lot faster than they used to. Looking back the wait times were increasing. The wait times went up for about three hundred days from 2017 to 2019 leading up to the implementation of the Appeals Modernization act. But now it seems like those numbers might be going down. So we will get back to you with an update once we have more information. Alright with that kind of leads us to the backlog that everyone is probably familiar with the wait and delay with getting an appeal decided. So Kayla, tell us a little bit about the new system, the AMA, and why it was created.

Kayla D’Onofrio: So like Mike said AMA went into effect in February of 2019 and it was really a way for VA to sort of allow veterans or claimants to have more choice and control as they like to say over their claims process. So you can see in the infographic that it is no longer just sort of that straight forward one appeal option for any kind of decision that you receive. For any decision you receive, you now have a number of different options as well as different sorts of options for who is looking at your appeal, what you are submitting, how you are submitting it. So it is supposed to allow veterans and claimants to have a little bit more control over who is deciding their claims and what they are submitting and out what times. It is also in theory supposed to be a way to take back some of the backlog and cut down on some of those wait times because we are not seeing things just sitting in one part of the process. Things are a little bit more spread out evenly across the board in all of these different review options. So in theory, it should also help to cut down on some of that wait time as we kind of get through those appeals and see the decisions coming in.

Emma: So for a claim that gets decided what is VA’s goal in terms of getting these cases decided and getting rating decisions issued in the new system?

Kayla: Good question. So right now VA’s goal for decisions at the regional office level is about a hundred and twenty-five days. So there is a couple of different sort of decisions that we see at the regional office level. So you can file an initial claim and you will get an initial decision off of that claim. And then from there, you have several different appeal options. So you have the supplemental claim option, the higher-level review option, and the board notice of disagreement option. So at the regional office, the first one is the supplemental claim that we will talk about today. For supplemental claim, this is the option that you have where you can submit new evidence and VA is supposed to look at that as a sort of new reopening of your claim. So if you are within a year of that rating decision, you can file the supplemental claim with what VA calls new and relevant evidence. So something that was not previously part of your record and sort of helps to support your claim. It is supposed to be a lesser standard than the new and material evidence that we were seeing in the legacy appeals process. Although we have not necessarily seen that in practice. It is supposed to be sort of a lower burden to overcome. And one thing to keep in mind with the supplemental claim option is that VA does still have to abide by their duty to assist meaning that they do still have an obligation to help veterans and claimants obtain any additional evidence that they think is necessary for their claim. So obtaining additional medical records or maybe VA exams. So there is a little bit more work on VA’s part that will go into deciding these plans. So I think for that reason we do sometimes see a little bit more wait time between when the appeal is filed and when we see the decision because there is a little bit more involved on VA’s and as far as obtaining additional evidence for these sort of appeals.

Emma: And then you mentioned another choice at the regional office level is to pick the higher-level review, tell us a little bit about that process. I think that is on the left side of our infographic.

Kayla: So for higher-level review, this claim is a little bit different than the supplemental claim in that you can only choose this appeal option if you just received your initial decision off your claim or if it is a decision on your supplemental claim. So it is not an option that you have for every sort of rating decision that you receive. You cannot file a high-level review with a higher-level review or with a board decision the same way that you could with the supplemental claim. With higher-level review, the record is closed as of the date that you received that previous rating decision so you do not have the option to submit any additional evidence at that point. So we kind of see that we in practice use this claim more often when we just kind of see some legal errors, or maybe VA just missed something on what was already a record and we just want to kind of point it out to them, spell it out for them and get a quicker decision. Their average for this or their goal for these sort of decisions is still one hundred and twenty-five days and their average for making that decision is still about four to five months. In theory, you would think it should take less time and I think in practice we have seen that these do take a little bit less time again, just because VA does not necessarily have to do all of the background work of obtaining exams or additional medical evidence and with COVID-19. We know that that has extended wait time significantly. So I think we do see that we get on decisions a little bit faster in the higher-level review option just because it is just straightforward what is already there and usually just kind of spelling it out on us. As to what VA needs to make a favorable decision.

Emma: Okay. So in terms of wait time, so far so good. Under the new system, VA is pretty much on target for their projected wait times which is great. Only a couple of months, four-five months until you get a decision. But you said the other option is to appeal to the board. So Mike tell us a little bit about what happens when a veteran wants to appeal their initial decision to the board of veterans appeals and take us down the right side of that infographic.

Mike: Sure. So a veteran has essentially three options to appeal within this board lane. There is an option for direct review or the direct review docket as it is known. The evidence docket and also the hearing docket. And then you can see from the infographic that what is required to file an appeal at the board is what is called a notice of disagreement. This is not to be confused with the notice of disagreement that one would file in the legacy system but it is really what kicks off the appeal to the board. So in terms of the first option within the board docket which is the direct review docket, this is an option for veterans who have a claim or would like to appeal to the board but do not want to submit any additional evidence and do not want to request a hearing. Under this direct review option, they are not allowed to do either. So, we typically see or use this option if there is a legal issue that we think can be resolved with a legal argument or we just want somebody that is maybe a little bit more sophisticated to adjudicate the claim. What VA has stated is that their goal within the direct review docket is to decide cases within approximately one year as of fiscal year 2019. They have been way ahead of schedule in terms of their goal and we have seen from the data we have collected that they have been able to issue decisions in approximately a hundred and forty-two days but that was fiscal year 2019 and now moving forward. I think it is likely that cases are going to take much longer to be decided within that docket and that is evidenced by the fact that VA now says publicly that those decisions might take more than a year. Even though their stated goal was one year. Veterans also have a second option as I mentioned earlier when filing a notice of disagreement at the board under AMA, they can choose the evidence docket. And in this lane, veterans can submit additional evidence with their notice of disagreement or within ninety days following the submission of their notice of disagreement. So this is a lane where veterans are allowed to submit additional evidence and legal argument to the board and the board will consider and adjudicate the claim based on that evidence as well as the rest of the evidence in the record. In terms of stated timeframes for this particular lane, we have seen from our data for fiscal year 2019 that decisions have been issued within approximately a hundred and ninety-six days of filing of the notice of disagreement. But now as I mentioned earlier VA’s website says that decisions within the evidence appeal docket may take more than a year. So again, their stated goal was approximately a year. They are now indicating that maybe a little bit too optimistic. The third and final docket within the board lane is the hearing docket and as the name suggests, this is a docket for veterans to choose who do in fact want to attend a hearing before a veteran’s law judge. Evidence is allowed to be submitted at the time of the hearing or within ninety days following the date of the hearing. And so veterans who want to be heard have a typical hearing as they might in the legacy system, have an option under the AMA in the board lane to do so. The wait times though in this particular docket in this particular lane are much more significant than they are for certainly the direct docket or for even the evidence docket the data that we have obtained for fiscal year 2019 indicates that decisions are taking approximately two hundred ninety-one days from the filing of the notice of disagreement. VA’s website again says that hearings will take more than one year and certainly we have seen in our practice that this board review lane by far is causing the most delay for veterans who seek a fast resolution of their case.

Emma: So, why does the hearing docket take so long? It is always a question that has bugged me. And Kayla and Mike you both practice in our veterans’ law practice. What is it about the hearing docket that causes such a delay?

Mike: So I would say just kind of at a basic level, there are a lot of requests for hearings. Veterans typically at least from my experience like the idea of a hearing where they can go and plead their case before an individual and there are very few or the ability to conduct that many hearings are pretty minimal particularly during a time with such as the pandemic that we are going through where veterans, law judges have not been able to attend as many hearings as they might have previously. And there are further delays that I have seen in my practice after hearing has even been conducted. It can be months until a hearing transcript is uploaded within the veteran’s file. So there are just a number of points where the veteran’s case can be further kind of held up if you will. And I think the demand is great and the ability to conduct that many hearings is not all that great.

Emma: So as we have noted for fiscal year 2019, VA was either on target or ahead of schedule in terms of getting these cases decided but I think the three of us definitely agree that we do not think these numbers are going to stay the same and VA is now, in fact, reporting further delays in terms of getting these decisions decided either in any of the dockets at the board before and we think there might be a couple of reasons as to why these delays are going to pick up. So Kayla, what are some things that we have noticed in our practice and things we are thinking about why the AMA decision rate might start slowing down?

Kayla: Good question. So I think one that we have talked about a few times already is related to the pandemic. So it does take VA a little bit more time to get some of that evidence that might be needed to substantiate some of these claims. Scheduling exams for veterans has become increasingly difficult, especially depending on the types of exams that are required for them to make a decision on the claims or on the appeals. Hearings are taking longer to get scheduled so that definitely is causing some hold-up and adding to the wait times. We are also seeing that there is a number of claims related to the Blue Water Vietnam veteran cases that are coming through so under Procopio that was decided on a couple of years ago. There was a stay that was lifted on all of those decisions starting in January of 2020. So a lot of the ones that just kind of been sitting there for several years are now working their way through the appellate process and veterans are also starting to file more claims in relation to this now that they have the option too under the law. So I think we are seeing an influx in those sorts of cases. And we are also seeing a lot of people choosing to move into the Appeals Modernization act system instead of legacy. So when a statement of the case is issued or a supplemental statement of the case is issued, if you are within the necessary time frame to appeal those decisions. So sixty days for the statement of the case or thirty days from the supplemental statement of the case. You do have the option to opt your appeal into the appeals modernization system if it is something that you would like to do and I think we are seeing an increasing number of veterans and representatives doing that because we do see some of those shorter wait times. We do have a little bit more control over what is going on and what we can submit and it does allow for a few more options as far as what we are able to do with the claim. So I think that there is a number of different reasons why things do get held up and we are seeing longer wait times, but I think those are three of the bigger ones

Emma: So Mike, you have any sort of closing thoughts or tips for folks out there who are picking options, figuring out what system they are in? What to expect in the process? Number one top question, how long is this going to take?

Mike: Yes, that is always a difficult question because things are changing rapidly as we have discussed and the numbers that we have seen in fiscal year 2019 are likely not going to be anywhere near the numbers that we see for fiscal year 2020, but I would say it is really important for veterans to always examine their decision or their claim when they are filing or when they receive a decision. To make sure that they are in either AMA or legacy and that they know which system they are in because these systems as of right now are operating. Sometimes they are operating together and sometimes they do not always operate smoothly together. And so there is the ability for veterans to have multiple claims, multiple appeals pending in their case and have some of those appeals pending in the old legacy system and have some of the appeals and claims pending in the new Appeals Modernization system and it is really important to be able to keep track of which is which because the appellate rights and options differ depending on the system that the veteran is in for that particular appeal or claim and there are some disadvantages and some advantages to being in either system. So I think being able to keep track of that particularly for veterans who have multiple claims and appeals pending and something that they wanted to make sure that they are doing.

Emma: I think that is a great point because one of the hiccups that I have seen with our clients in our practice, you know folks coming to us for help. Are people who have filed the wrong form. So keep in mind that VA loves their forms. You have to file everything on a form now. You can no longer file that claim on the cocktail napkin saying I want benefits for X. You need to use VA’s form and there are forms for the legacy system and there are forms for the AMA system and they are not interchangeable, so make sure that you reach out to your accredited rep. Make sure that you reach out to your VSO, your attorney. Whoever it is that you are working with on the claim to make sure you are using the right form for the right system because that can be a really unfortunate and shocking surprise when you get notice back from VA saying, “You have missed your appeal deadline. This is not the right form.” Kayla, do you have any thoughts or tips in closing for people out there who are listening to our broadcast today?

Kayla: Yes, like you said there is a lot of different options. There is a lot of different forms. It can be really confusing especially because it is a newer system. We are seeing a lot of issues in our practice with VA, even properly taking the forms that are correct. So if you are not sure if you know something is wrong or right, I definitely encourage anyone to reach out to a VSO or an attorney or an accredited representative to help them with their case and to kind of guide them through the process in making sure that all of the correct forms are being submitted in the correct time frames. And if something is messed up either on the appellate side or on VA side to make sure that those issues are corrected within a timely manner before VA kind of decides that the claim is no longer in standing. So as a reminder, you should always reach out for help and ask questions if it is necessary.

Emma: Great. Well, thank you so much to everyone out there for joining us for our discussion about the VA disability claims and appeals process timeline. Once again, I am Emma Peterson and I am with Kayla D’Onofrio and Mike Lostritto. Oh, and please feel free to reach out to us in the comments. We will try to respond. Give us a call or check out our website at CCK-law.com for all these infographics and more information about the AMA and Legacy of appeals process. But with that we will say good afternoon.