VA to Revamp Appeals Process

Gregory M. Rada Disability Compensation, Legal Update

Big changes are coming to the VA appeals process as a result of a new law, the Veterans Appeals Improvement and Modernization Act of 2017, which became law on August 23, 2017. The new law restructures the current appeals process to address the massive backlog of veterans presently waiting for decisions on their appeals.

Under the new VA appeals system, veterans will be able to choose between three different appeals “paths.” Within one year following an initial decision, veterans will have the option to:

  1. file a request for a “higher-level review,” where the claim is reviewed anew based on the same evidence;
  2. file a “Supplemental Claim,” where the claim is reviewed anew based on new evidence; and/or
  3. file a Notice of Disagreement to send the appeal directly to the Board of Veterans’ Appeals.

Under the first path, veterans may request a review of the initial decision by a higher-level adjudicator (decision maker). This option asks a new adjudicator to “try again” based on the original evidence in the file. A request for a higher-level decision maker to review the claim must be made in writing within one year of notice of the initial decision, and veterans have the option to request that the claim be reviewed by a different regional office. Review under the first path is de novo – meaning that the new adjudicator must decide the claim on their own and not give any weight to the prior initial decision.

The second path is the “new evidence” path. Under this option, if a veteran has “new and relevant evidence,” the veteran may file a “Supplemental Claim” and the VA will re-adjudicate the claim taking into account the new and relevant evidence. A Supplemental Claim must be filed within one year of notice of the initial decision.

The third path is to file a Notice of Disagreement to send the appeal directly to the Board of Veterans’ Appeals. This new Notice of Disagreement process does away with the current process involving the issuance of a Statement of the Case and the filing of a VA Form 9. Instead, veterans will file a Notice of Disagreement with the Board requesting (1) a hearing before the Board with the opportunity to submit additional evidence; or (2) an opportunity to submit additional evidence without a hearing before the Board; or (3) Board review without a hearing and without additional evidence. Veterans must file a Notice of Disagreement within one year after notice of the initial decision, or within one year after a decision obtained from pursuing either or both of the first two paths.

A veteran requesting a Board hearing may submit additional evidence to the Board up until 90 days following the Board hearing. If the veteran requests the opportunity to submit additional evidence without a Board hearing, he or she has 90 days following the VA’s receipt of the Notice of Disagreement to submit additional evidence. If the veteran files a Notice of Disagreement without requesting either a hearing or an opportunity to submit additional evidence, the Board will decide the appeal based on the evidentiary record that was before the regional office during the initial decision.

In addition, the Board will maintain two separate dockets – one docket for cases in which the veteran requested a Board hearing and one for cases in which the veteran did not request a hearing. Cases without a Board hearing are expected to be decided more quickly than those with hearings.

Once a veteran elects an appeal path, he or she may not pursue another path until the first one is complete. Each of the paths can also be followed in succession. This means that a veteran can request a higher-level adjudication, receive a decision, and then decide to file a Supplemental Claim with new and relevant evidence. If the veteran still believes the decision is not appropriate, he or she could then file a Notice of Disagreement to send the appeal to the Board of Veterans’ Appeals.

The new framework, once implemented, will apply to all new appeals. It is unclear, however, what impact the new process will have on existing legacy appeals. The VA will have the option to allow some pending appeals to be off-ramped into the new system.

In addition to creating the three appeal paths, the new law also mandates that the VA provide veterans with better information in VA decisions. At present, the VA must only provide a statement of the reasons for the decision and a summary of the evidence considered. In many cases, this is simply not enough information to understand the decision and determine whether an appeal is appropriate. Under the new law, decisions must provide seven specific pieces of information, including:

  • Identification of the issues adjudicated.
  • A summary of the evidence considered by the Secretary.
  • A summary of the applicable laws and regulations.
  • Identification of findings favorable to the claimant.
  • In the case of a denial, identification of elements not satisfied leading to the denial.
  • An explanation of how to obtain or access evidence used in making the decision.
  • If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.

With better information, veterans will be able to make more informed decisions about whether to request a higher-level local adjudicator, submit new evidence, or go straight to the Board of Veterans’ Appeals. Under the new appeals system, veterans do not risk losing favorable findings if they decide to appeal less favorable ones. The Act states that a favorable finding, “shall be binding on all subsequent adjudicators within the Department, unless clear and convincing evidence is shown to the contrary to rebut such favorable finding.”

Veterans who experience a service-connected disability deserve to have their appeals heard in a timely manner, but the switch to the new system will not happen quickly. Rather, the VA estimates it will be at least 18 months until the new system is up and running. Although we may not see any positive impact for some time, I am optimistic that this overhaul of the appeals process will improve the backlog of appeals.

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