Veterans Appeals Modernization Overview
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Lauren Barefoot
Manager, Training & Quality Assurance
Lbarefoot@vfw.org
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Understand Changes created by AMA
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Identify Decision Review Options and their
Features
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Supplemental Claims
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Higher Level Review
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Board of Veterans Appeals
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Rapid Appeals Modernization Program (RAMP)
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What other changes does AMA create?
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Pros and cons of choices at AOJ and BVA
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Challenges and opportunities with AMA
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Legacy appeal system was cobbled together over
time – a few examples:
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1933: Board of Veterans Appeals established
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1957: VA regulations codified in statute (law)
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1962: SOC and Form 9 added to process
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1988: Veterans Court (CAVC) established
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2000: Veterans Claims Assistance Act amends
notice and duty to assist
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2001: DRO process created
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2015: Standard NOD form required
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2019: Appeals Modernization Act
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Improves rating decision notice letters to better inform veterans
of reasons for decision, evidence considered, and appeal rights
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Formalizes two options at the AOJ to offer veterans resolution
to claim disputes at the lowest possible level
•
Allows appeal directly to Board of Veterans Appeals, replacing
duplicative and confusing processes like NOD elections, Form
9, and 646
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Protects veterans’ effective dates so long as claimants pursue
adjudication in the timeframes prescribed by VA
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Protects “Duty to Assist” in initial and supplemental claims
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Claimants can pursue only one lane at a time for
the same claimed issue
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There are no limits to the number of times a
veteran may pursue a claimed issue in any of the
given lanes
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The effective date is protected as long as the
veteran pursues the same claimed issue in any of
the lanes within the established timeframes
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38 CFR 3.400 (Effective Dates, General):
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Under AMA, the evidentiary record that VA is obligated to
consider “closes” at the time of the rating decision
•
Evidence submitted
after
the rating decision or with a
request for Higher Level Review or BVA direct docket
will not be considered: must select supplemental claim
or BVA docket with evidence or hearing
•
Evidence submitted
before
the rating decision but not
considered by VA: can request HLR to have it
considered
•
Creates quality feedback mechanism: if HLR/BVA
granted based on same evidence, there was an error
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VA’s duty to assist is only triggered by evidence submitted
before the initial or supplemental claim
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If VA did not take adequate steps to assist veteran, can
raise through higher level review or BVA
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If additional evidence is submitted at BVA (through
evidence only or hearing dockets), it will not trigger the
duty to assist, but VA can still grant or deny based on
the additional evidence.
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Supplemental claim can always be selected after receiving
any rating decision by the AOJ, BVA decision, or CAVC
decision
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Why? It changes the evidence
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Higher Level review can only be selected after receiving a
rating decision on an initial or supplemental claim
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Why? It must be higher level (DROC employee is not
higher level than BVA or CAVC judge)
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Also, can’t select a HLR right after a HLR, must go to a
higher level (BVA) or change evidence
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Appeal to the BVA can be selected after receiving rating
decision on supplemental or higher level review
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Note that hearings are not available in the higher
level review or supplemental claim lanes
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Informal conference may be requested for those
lanes
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Pre-determination hearings will still take place in
the case of waivers and reductions
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Hearings will still be available for veterans who
choose the Hearing Docket at the BVA
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VA’s goal for deciding lanes at AOJ (supplemental
or higher level review) is an
average
of 125 days
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Actual time will be lower for specialized claims such as
education, loan guaranty
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Time will increase if more development is needed
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BVA’s goal for deciding direct review docket is 1
year
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Evidence and Hearing dockets will take longer
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BVA will still pull cases from the evidence and hearing
dockets, not
every
direct case will go quicker
•
AOD cases will still go faster
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If you or the client have chosen a particular lane and decide
that another lane is more favorable, AMA does allow limited
circumstances to withdraw an option and change lanes
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A
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You only have the original appeal window because you are
withdrawing a review option and choosing a new one
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Example: Rating decision 3/2/19, select higher level
review on 6/14/19. Still only have until 3/1/2020 to
change lanes.
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Otherwise, you can wait until decision is rendered and
then select another option if not granted
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Decisions must contain 8 elements:
1)
Identification of issues adjudicated
2)
Summary of the evidence considered
3)
Summary of the applicable laws and
regulations
4)
Listing of findings favorable to the claimant
5)
In the case of a denial, identification of
elements not satisfied leading to the denial
6)
If applicable, identification of the criteria that
must be satisfied to grant service connection or
the next higher level of compensation
7)
Explanation of how to obtain or access
evidence used in making the decision
8)
Summary of applicable review options under
§3.2500 available for the claimant to seek
further review of the decision
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Favorable findings include any element of a
claim that is met, but the claim cannot be
granted at this time
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Example: Veteran claimed compensation for a
condition, has a current diagnosis, but no proof
of in-service event. Current diagnosis would be
favorable finding
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If veteran re-files later and shows in-service
event, VA must accept that he has a current
diagnosis, unless that finding was result of
clear and unmistakable error (CUE)
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Favorable findings are not required if:
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Applicant does not qualify as a claimant
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There are no favorable findings
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Decision is a full grant
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Supplemental Claims
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Higher Level Review
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Board of Veterans Appeals
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Requesting a new rating decision from VA based
on the submission of “New and Relevant”
evidence
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If filed within one year of VA issuing a rating
decision, Board of Veterans Appeals Decision, or
CAVC Decision, protects effective date of claim
•
Claimants can perpetually file supplemental
claims on the same issue, provided they satisfy
the “New and Relevant” criteria
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Submission of new and relevant evidence triggers
duty to assist
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“New” means it is not already in the veteran’s claim file
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“Relevant” means it is pertinent to the benefit sought and
reason benefit was previously denied (even if not
favorable to claimant: lower threshold than “material”)
Example:
Red Foreman is claiming his diagnosed ischemic heart
disease is the result of exposure to herbicides while serving in
Korea in 1970. His claim for service connection was denied
because his military service records did not indicate that he
served in a unit in or near the Korean demilitarized zone.
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)
•
Buddy statements from those who supervised Mr. Foreman
while serving in Korea and witnessed him on the DMZ.
•
Doctor’s notes confirming that Mr. Foreman has a diagnosis for
ischemic heart disease
•
Spouse statement documenting the affects of ischemic heart
disease on Mr. Foreman’s daily life
•
Photos of Mr. Foreman in Korea alongside defoliated areas or
signs/landmarks indicating he was physically present at the
DMZ
•
Submission of Mr. Foreman’s letters home, indicating that he
served in Korea during the presumptive period for herbicide
exposure
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Block 13A: List specific issues – be sure to list whether service
connection, increased rating, etc.
Block 13B: What if you don’t have date of prior decision notice?
Notice Opt-In from SOC/SSOC
Block 14: Submit
or Identify
new and relevant evidence
•
Non-federal records will require VAF 21-4142
•
Federal records: Block 15
Block 16: Signature
Have claimant sign if possible – especially if opting in to AMA
We can sign if POA already of record
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•
Including ancillary benefits such as specially adapted housing
•
Should also include specific claim form if the evidence is
substantially different (example: pension income changes)
•
E-Benefits still allows veterans to file reopened issues on 21-526EZ,
this will generate a request for application letter. There is now a
warning about this on eBenefits
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E
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If claiming an increased rating and you are not concerned
about the effective date
or
it has been more than a year since
the last claim was filed on the issue, complete the 21-526EZ
•
ITF applies to the 21-526EZ
•
Be sure to add military service information to VetraSpec so
future 21-526EZs are easier to complete
•
Remember 38 CFR 3.400(o)(2) also applies for effective
dates
However if you are contesting a rating that was evaluated
within the last year, be sure VA characterizes as a
supplemental claim, not a claim for increase
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Rating decision will be in new AMA format with 8 decision points
Supplemental claim decision can be challenged in any of three
lanes: new supplemental claim with additional new and relevant
evidence, higher level review, or appeal to BVA
•
Request for higher level review can identify duty to assist
errors in first or subsequent supplemental claim decision:
VA must review entire record
If claim denied due to no new and relevant evidence being
submitted, can challenge (higher level review or NOD)
determination on whether evidence was new and relevant
•
Must have submitted or identified
some
evidence
•
Veteran requests “de novo” review of rating
decision by a higher authority
•
Review is solely on evidence of record – cannot
submit additional evidence
•
Decisions can be overturned based on difference
of opinion or CUE
•
Can only be requested within one year of rating
decision
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1
•
VA has established three “Decision Review
Operation Centers” (DROCs) to address
decision review requests for higher level
review and BVA remands
•
Located in Seattle, St. Petersburg, and
Washington, D.C. (Appeals Management
Office)
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Example:
Johnny Utah claimed service connection for fibromyalgia
related to service in Southwest Asia in 2005. He was
diagnosed with fibromyalgia in 2011, three years after he
separated from the military. Johnny completed an exam for
fibromyalgia that sufficiently demonstrates his current level of
impairment and the DBQ is in his record, along with his
service records and his 2011 diagnosis.
However, VA denied service connection based on the lack of
a diagnosis of fibromyalgia while in service.
What are some reasons Johnny might consider Higher Level
Review?
27
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q
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H
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R
?
•
Fibromyalgia is a presumptive condition for
Southwest Asia service
•
Johnny’s military record indicates that he has
qualifying Southwest Asia service in Iraq in 2011
•
Johnny has a current diagnosis of fibromyalgia
present for more than six months
•
Johnny’s exam indicates that the condition is
compensable at a rate greater than 10%
•
VA misinterpreted the presumption, which dictates
that the condition must have emerged while serving
in Southwest Asia
OR
by December 21, 2021.
28
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9
9
6
Block 13: Doesn’t really matter – all higher level reviews being
sent to three Decision Review Operation Centers (DROCs) in
Seattle, St. Petersburg, and Washington, D.C.
Block 14: Informal conference – check with your DSO on who will
be representing at conference – It will be a teleconference
Block 15: Must list specific issues – be sure to list whether service
connection, increased rating, etc.
Notice Opt-IN from SOC/SSOC
Block 16: Signature
Have claimant sign if possible – especially if opting in to AMA
We can sign if POA already of record
3
8
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F
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3
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6
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(
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,
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•
Because development was triggered,
claimant can now submit new evidence
•
New rating decision made, veteran has all
three options for decision review
30
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C
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i
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The NOD is filed directly with the BVA
There are three separate BVA dockets:
•
D
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c
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R
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v
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w
d
o
c
k
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w
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v
i
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e
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c
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•
Evidence Only docket with limited window
for introduction of new evidence (90 days after NOD)
•
Hearing docket with limited window for introduction of
new evidence (at hearing or 90 days after hearing)
Remands only issued for pre-existing duty to assist errors or to
obtain an advisory medical opinion
31
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p
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V
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a
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s
A
p
p
e
a
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s
When should appeal to BVA be selected?
•
When supplemental claim or higher level review results in
another denial
•
When you need a change in the law and want to get to
CAVC quicker
•
When you don’t want VA to engage in more development
Examples:
•
Reductions
•
Earlier Effective Dates
•
Well-reasoned positive medical opinion
32
A
p
p
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a
l
t
o
B
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a
r
d
o
f
V
e
t
e
r
a
n
s
A
p
p
e
a
l
s
Under AMA, VA no longer requires VSOs to complete
the VA Form 646 or Form 9.
Instead, all arguments and contentions will be made
on the new Notice of Disagreement (VA Form 10182)
for claims going directly to the BVA.
Block 11: Select Docket
Block 12: List specific issues
•
Check box if providing argument
•
Notice Opt-In from SOC/SSOC
33
B
o
a
r
d
A
p
p
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a
l
V
A
F
o
r
m
1
0
1
8
2
•
Appeals submitted directly to BVA (especially on
the direct docket) must be researched fully
•
NOD should have at least a 21-4138 attached with
a well thought out argument
•
Only use the “no merit argument” as a last resort
•
If an appeal has several issues you may need to
write up a separate argument for each issue.
34
T
i
p
s
o
n
V
A
F
o
r
m
1
0
1
8
2
•
I
f
B
V
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k
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o
d
t
o
r
e
s
p
o
n
d
•
This is crucial, because if the claimant does not
respond, VA will not establish or will close out the
appeal
3
8
C
F
R
2
0
.
2
0
2
35
C
l
a
r
i
f
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c
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t
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V
A
F
o
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m
1
0
1
8
2
36
B
V
A
D
o
c
k
e
t
s
•
BVA publishing “appeals metrics” on their
public website:
https://www.bva.va.gov/Appeals_Metrics.asp
•
AMA allows flexibility in how cases are
managed between dockets – not a set
ratio of legacy/direct/evidence/hearing
•
VA is prioritizing legacy and direct docket
37
D
o
c
k
e
t
D
a
t
e
s
•
VA’s goal is to decide direct docket
claims within one year from VA 10182
•
This is not a deadline
•
Evidence and Hearing dockets will take
longer, unless advanced on the docket
38
D
o
c
k
e
t
D
a
t
e
s
•
Advancement on the Docket (AOD) motions have the
same criteria as in the past: age 75, seriously ill,
severe financial hardship, administrative error
resulting in significant delay in docketing, and at the
discretion of the Chairman (such as areas affected by
severe natural disasters).
•
L
e
g
a
c
y
d
o
c
k
e
t
:
3
8
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R
2
0
.
9
0
2
•
A
M
A
d
o
c
k
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s
:
3
8
C
F
R
2
0
.
8
0
0
•
Contact VFW’s office at BVA, or hearing branch, if
veteran is scheduled for hearing, for AOD
39
A
d
v
a
n
c
e
m
e
n
t
o
n
t
h
e
D
o
c
k
e
t
You can switch dockets at the BVA by filing a new NOD
•
T
i
m
e
l
i
m
i
t
:
w
i
t
h
i
n
o
r
i
g
i
n
a
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o
n
e
y
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f
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,
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r
6
0
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(
3
8
C
F
R
2
0
.
2
0
2
)
•
If switching to evidence only docket, 90 days to submit
evidence starts from the date the request to switch dockets
is granted.
•
Once evidence is submitted or a hearing is held, you
cannot switch to the direct review docket
•
Why? You have changed the evidentiary record and VA
can’t “un-see” the evidence or testimony
•
3
8
C
F
R
2
0
.
3
0
1
,
2
0
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3
0
2
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3
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3
40
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w
i
t
c
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i
n
g
D
o
c
k
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t
s
•
Under AMA, BVA no longer requests independent
medical opinions before making a decision
•
Why? Because record is closed
•
If representative requests or BVA determines that an
advisory medical opinion is needed from an outside
source (not C&P or contract C&P), BVA will remand
for an advisory medical opinion
•
3
8
C
F
R
2
0
.
8
0
2
•
Example: 1151 claims for medical negligence
•
All development occurs at AOJ
41
M
e
d
i
c
a
l
O
p
i
n
i
o
n
s
•
Challenging a final decision on the basis of clear and
unmistakable error is still an option
•
No specific form required, recommend 21-4138 to avoid
confusion with other types of claims
•
Should only be exercised if claimant is not in appeal
timeframe
•
Can still argue VA made an error, but higher level review
or direct docket to BVA may be better
•
Why? Higher bar of evidence to meet with CUE:
standard of review
42
W
h
a
t
a
b
o
u
t
C
U
E
?
43
R
A
P
I
D
A
P
P
E
A
L
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M
O
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E
R
N
I
Z
A
T
I
O
N
P
R
O
G
R
A
M
(
R
A
M
P
)
•
RAMP was in effect from November 2017 through
February 2019
•
Offered legacy appellants opportunity to opt into
Supplemental Claim and Higher Level Review lanes
after filing a NOD, filing a Form 9, having their claim
certified to the BVA, or remanded from BVA
•
Note: this
did not
include the SOC stage, however if VA
accepted the election they should honor it
•
VA is completing decisions for veterans who already
opted into RAMP. If an election was made after
February 2019, veteran will receive letter stating still
processing legacy appeal
44
R
A
P
I
D
A
P
P
E
A
L
S
M
O
D
E
R
N
I
Z
A
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I
O
N
P
R
O
G
R
A
M
(
R
A
M
P
)
I
S
S
U
E
S
•
If your veteran opted into RAMP in the appropriate time
limits but was told their appeal was cancelled, let us know.
•
During RAMP, it was presumed that the veteran had
submitted new and relevant evidence. If opting in today, you
must
submit or identify new and relevant evidence.
•
During RAMP, veterans received a decision letter with
appeal rights that allowed them to file a supplemental claim,
higher level review or Board appeal on a special 21-4138.
After February 19, 2019, that form is no longer valid
•
If VA did not recognize and establish the decision review
request, please assist the claimant in completing a 20-
0995, 20-0996 or VAF 10182, as appropriate.
45
O
p
t
i
n
g
i
n
t
o
A
M
A
t
o
d
a
y
Appellant in legacy appeal process can “opt-in”
to AMA after receiving a Statement of the Case
or Supplemental Statement of the Case
•
Can select any lane, but only has time limit
noted in SOC/SSOC (30 or 60 days)
•
Once a veteran opts-in to AMA, that decision
is final and the veteran cannot revert back to
the legacy appeals program
•
Can opt to file Form 9 instead and remain in
legacy (or if Form 9 already filed, wait)
46
D
o
w
n
s
i
d
e
t
o
r
e
m
a
i
n
i
n
g
i
n
L
e
g
a
c
y
If you remain in the legacy system, you do not
have the option of retaining the effective date
by filing a supplemental claim within a year of
BVA or CAVC decision
Must obtain remand and be issued a new
SOC/SSOC in order to opt in
47
W
h
a
t
o
t
h
e
r
c
h
a
n
g
e
s
d
o
e
s
A
M
A
c
r
e
a
t
e
?
While 94% of appeals are related to compensation or
DIC, AMA will apply to all claims including pension,
fiduciary, education, vocational rehabilitation, loan
guaranty, insurance, burial benefits, and VHA appeals
that are not solely clinical decisions
See VA forms 20-0995 and 20-0996
VHA is reviewing their processes, manual and IT
capabilities to be able to offer supplemental and higher
level reviews
48
N
e
w
i
n
f
o
r
m
a
t
i
o
n
t
e
c
h
n
o
l
o
g
y
•
Caseflow: new IT program used to establish and track
decision review requests
•
AMA appeals will not be added to VACOLS: need
to receive access to Caseflow
•
Functionality still being updated
•
Quality review program
•
Additions to VHA telehealth application to provide BVA
hearings
49
P
r
o
s
a
n
d
c
o
n
s
o
f
c
h
o
i
c
e
s
a
t
A
O
J
a
n
d
B
V
A
AMA creates more choice and more decisions to make
about which option is best for your client
AMA options are not one size fits all, they have pluses
and minuses dependent on the evidence and how
quickly a decision is needed
Following are general guidelines on which option may be
best in certain circumstances
50
S
u
p
p
l
e
m
e
n
t
a
l
C
l
a
i
m
s
W
h
e
n
t
o
u
s
e
•
D
e
n
i
a
l
f
r
o
m
C
A
V
C
:
s
u
p
p
l
e
m
e
n
t
a
l
c
l
a
i
m
i
s
o
n
l
y
o
p
t
i
o
n
t
o
p
r
e
s
e
r
v
e
e
f
f
e
c
t
i
v
e
d
a
t
e
•
D
e
n
i
a
l
f
r
o
m
B
V
A
:
y
o
u
d
o
n
’
t
t
h
i
n
k
a
n
e
r
r
o
r
w
a
s
m
a
d
e
,
a
n
d
y
o
u
h
a
v
e
n
e
w
e
v
i
d
e
n
c
e
•
Rating decision denial, and you
now know
what evidence you need to submit
•
Rating decision denial,
missed C&P exam
51
H
i
g
h
e
r
L
e
v
e
l
R
e
v
i
e
w
W
h
e
n
t
o
u
s
e
VA made a clear mistake of law and you can
easily find it in the CFR
•
Decision will be quicker than appeal to BVA
VA made a duty to assist error (did not request
an exam or records) that wasn’t fixed in the 48
hour rating decision review period
•
BVA can’t order development, so this will get
additional development done quicker
52
A
p
p
e
a
l
t
o
B
o
a
r
d
o
f
V
e
t
e
r
a
n
s
A
p
p
e
a
l
s
W
h
e
n
t
o
u
s
e
VA did not weigh the evidence as you feel they
should have
•
BVA must discuss lay testimony in decisions
AOJ has mischaracterized the issue
•
Reductions treated as claims for increase
•
Earlier effective date of rating treated as
earlier effective date of service connection
You don’t want VA to engage in additional
development
•
You have a well-reasoned nexus opinion and
don’t want VA to counter it
53
C
h
a
l
l
e
n
g
e
s
a
n
d
O
p
p
o
r
t
u
n
i
t
i
e
s
w
i
t
h
A
p
p
e
a
l
s
M
o
d
e
r
n
i
z
a
t
i
o
n
Review the provided scenarios and discuss with
your group
Write notes on your ideas to resolve the issue,
including which decision option/form is best
When directed, rotate to the next scenario
We will discuss these scenarios and the
questions and remaining issues you wrote down
at the beginning of class as a group
Class actions are now available at the Court of
Appeals for Veterans Claims.
•
Godsey v. Wilkie:
class of appeals waiting to
be certified to BVA
•
May be able to consolidate cases and get
quicker movement
CAVC recently found veterans entitled to more than
one hearing at BVA in
Quinn v. Wilkie
•
May impact timeliness of scheduling hearings
•
Opportunity for veterans to discuss new
evidence developed during a remand
54
W
h
a
t
’
s
N
e
x
t
?
BVA Tele-hearing Pilot
•
Should reduce no-shows and allow more veterans
to access hearing with Veterans Law judge (but
not in person)
•
If you have a scheduled videoconference and
your client wants to participate, contact the BVA
hearing coordinators
55
W
h
a
t
’
s
N
e
x
t
?
Precedential Court Cases
There were many precedential court cases after the
passage of the VCAA due to the changes to VA’s duty
to notify and duty to assist
Some issues that may be taken up regarding AMA
include:
•
Definition of new and relevant evidence
•
Scope of VA’s duty to notify in decision letters
•
When favorable findings are required and
overturning favorable findings
And others…
56
W
h
a
t
’
s
N
e
x
t
?
57
W
e
n
e
e
d
y
o
u
r
f
e
e
d
b
a
c
k
•
If appeals are not being processed as they should under
AMA, please contact your DSO
•
Have your DSO contact NVS if still not resolved
•
We will assist in getting a resolution or if needed, advocate
for a change to the process
•
VSOs were involved in creation of AMA and made many
changes to the initial concept – we intend to continue this
advocacy
•
Veterans Appeals Improvement and Modernization Act:
https://www.congress.gov/bill/115th-congress/house-bill/2288/text
•
Appeals Modernization Website:
https://benefits.va.gov/benefits/appeals.asp
•
BVA Appeals Statistics:
https://www.bva.va.gov/Appeals_Metrics.asp
•
Electronic Code of Federal Regulations:
https://www.ecfr.gov
•
VA Adjudication Procedures Manual M21-1:
knowva.ebenefits.va.gov/
58
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I
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N
R
E
S
O
U
R
C
E
S
:
The Veterans Appeals Modernization Act of 2017 (AMA) aims to ensure fair and timely appeals decisions for veterans. The act introduces changes to streamline the appeals process, offer more options for veterans, and protect their rights. Key aspects include understanding changes created by AMA, identifying decision review options, and exploring the benefits and challenges of the new framework. The AMA creates a more transparent and efficient system for veterans seeking appeals.
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Presentation Transcript
APPEALS MODERNIZATION Advanced Training September 2019 Lauren Barefoot Manager, Training & Quality Assurance Lbarefoot@vfw.org
LEARNING OBJECTIVES Understand Changes created by AMA Identify Decision Review Options and their Features Supplemental Claims Higher Level Review Board of Veterans Appeals Rapid Appeals Modernization Program (RAMP) What other changes does AMA create? Pros and cons of choices at AOJ and BVA Challenges and opportunities with AMA 2
Legacy Appeals over time Legacy appeal system was cobbled together over time a few examples: 1933: Board of Veterans Appeals established 1957: VA regulations codified in statute (law) 1962: SOC and Form 9 added to process 1988: Veterans Court (CAVC) established 2000: Veterans Claims Assistance Act amends notice and duty to assist 2001: DRO process created 2015: Standard NOD form required 2019: Appeals Modernization Act 3
Veterans Appeals Improvement and Modernization Act of 2017 (AMA) GOAL: Ensure veterans receive fair appeals decisions in a timely, transparent, consistent and simple manner. Improves rating decision notice letters to better inform veterans of reasons for decision, evidence considered, and appeal rights Formalizes two options at the AOJ to offer veterans resolution to claim disputes at the lowest possible level Allows appeal directly to Board of Veterans Appeals, replacing duplicative and confusing processes like NOD elections, Form 9, and 646 Protects veterans effective dates so long as claimants pursue adjudication in the timeframes prescribed by VA Protects Duty to Assist in initial and supplemental claims 4
Adjudication Lanes Claimants can pursue only one lane at a time for the same claimed issue There are no limits to the number of times a veteran may pursue a claimed issue in any of the given lanes The effective date is protected as long as the veteran pursues the same claimed issue in any of the lanes within the established timeframes 6
Effective Date of Continuously Pursued Claim 38 CFR 3.400 (Effective Dates, General): Preserves the effective date based on date of receipt of the initial claim IF a claimant continuously pursues an issue by timely filing in succession any of the review options in 3.2500 within one year of the date VA, BVA, or CAVC issues notice of decision. 7
Closing the record Under AMA, the evidentiary record that VA is obligated to consider closes at the time of the rating decision Evidence submitted after the rating decision or with a request for Higher Level Review or BVA direct docket will not be considered: must select supplemental claim or BVA docket with evidence or hearing Evidence submitted before the rating decision but not considered by VA: can request HLR to have it considered Creates quality feedback mechanism: if HLR/BVA granted based on same evidence, there was an error 8
Closing the record and VAs Duty to Assist VA s duty to assist is only triggered by evidence submitted before the initial or supplemental claim If VA did not take adequate steps to assist veteran, can raise through higher level review or BVA VA will return to supplemental claim lane or BVA will remand for additional development if VA did not comply with duty to assist 38 CFR 3.159(c) If additional evidence is submitted at BVA (through evidence only or hearing dockets), it will not trigger the duty to assist, but VA can still grant or deny based on the additional evidence. 9
Options after selecting a lane Supplemental claim can always be selected after receiving any rating decision by the AOJ, BVA decision, or CAVC decision Why? It changes the evidence Higher Level review can only be selected after receiving a rating decision on an initial or supplemental claim Why? It must be higher level (DROC employee is not higher level than BVA or CAVC judge) Also, can t select a HLR right after a HLR, must go to a higher level (BVA) or change evidence Appeal to the BVA can be selected after receiving rating decision on supplemental or higher level review 10
Hearing Options Note that hearings are not available in the higher level review or supplemental claim lanes Informal conference may be requested for those lanes Pre-determination hearings will still take place in the case of waivers and reductions Hearings will still be available for veterans who choose the Hearing Docket at the BVA 11
Decision Timeline Goals VA s goal for deciding lanes at AOJ (supplemental or higher level review) is an average of 125 days Actual time will be lower for specialized claims such as education, loan guaranty Time will increase if more development is needed BVA s goal for deciding direct review docket is 1 year Evidence and Hearing dockets will take longer BVA will still pull cases from the evidence and hearing dockets, not every direct case will go quicker AOD cases will still go faster 12
Changing Lanes If you or the client have chosen a particular lane and decide that another lane is more favorable, AMA does allow limited circumstances to withdraw an option and change lanes AOJ: 38 CFR 3.2500(d) BVA: 38 CFR 20.205 You only have the original appeal window because you are withdrawing a review option and choosing a new one Example: Rating decision 3/2/19, select higher level review on 6/14/19. Still only have until 3/1/2020 to change lanes. Otherwise, you can wait until decision is rendered and then select another option if not granted 13
Improved Decision Letter Notice 38 CFR 3.103(f) Decisions must contain 8 elements: 1) 2) 3) Identification of issues adjudicated Summary of the evidence considered Summary of the applicable laws and regulations Listing of findings favorable to the claimant In the case of a denial, identification of elements not satisfied leading to the denial If applicable, identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation Explanation of how to obtain or access evidence used in making the decision Summary of applicable review options under 3.2500 available for the claimant to seek further review of the decision 4) 5) 6) 7) 8) 14
Favorable Findings Favorable findings include any element of a claim that is met, but the claim cannot be granted at this time Example: Veteran claimed compensation for a condition, has a current diagnosis, but no proof of in-service event. Current diagnosis would be favorable finding If veteran re-files later and shows in-service event, VA must accept that he has a current diagnosis, unless that finding was result of clear and unmistakable error (CUE) 15
Favorable findings not required Favorable findings are not required if: Applicant does not qualify as a claimant There are no favorable findings Decision is a full grant 16
Decision Review Options Supplemental Claims Higher Level Review Board of Veterans Appeals 38 CFR 3.2500 17
Supplemental Claims 38 CFR 3.2501 Requesting a new rating decision from VA based on the submission of New and Relevant evidence If filed within one year of VA issuing a rating decision, Board of Veterans Appeals Decision, or CAVC Decision, protects effective date of claim Claimants can perpetually file supplemental claims on the same issue, provided they satisfy the New and Relevant criteria Submission of new and relevant evidence triggers duty to assist 18
Supplemental Claims What is New and Relevant? - 38 CFR 3.160(c) New means it is not already in the veteran s claim file Relevant means it is pertinent to the benefit sought and reason benefit was previously denied (even if not favorable to claimant: lower threshold than material ) Example: Red Foreman is claiming his diagnosed ischemic heart disease is the result of exposure to herbicides while serving in Korea in 1970. His claim for service connection was denied because his military service records did not indicate that he served in a unit in or near the Korean demilitarized zone. 19
New and Relevant Evidence Which of these are New and Relevant? (assume not in file) Buddy statements from those who supervised Mr. Foreman while serving in Korea and witnessed him on the DMZ. Doctor s notes confirming that Mr. Foreman has a diagnosis for ischemic heart disease Spouse statement documenting the affects of ischemic heart disease on Mr. Foreman s daily life Photos of Mr. Foreman in Korea alongside defoliated areas or signs/landmarks indicating he was physically present at the DMZ Submission of Mr. Foreman s letters home, indicating that he served in Korea during the presumptive period for herbicide exposure 20
Supplemental Claim Form VA Form 20-0995 Block 13A: List specific issues be sure to list whether service connection, increased rating, etc. Block 13B: What if you don t have date of prior decision notice? Notice Opt-In from SOC/SSOC Block 14: Submit or Identify new and relevant evidence Non-federal records will require VAF 21-4142 Federal records: Block 15 Block 16: Signature Have claimant sign if possible especially if opting in to AMA We can sign if POA already of record 21
Supplemental Claim Form VA Form 20-0995 Currently VA is requiring a supplemental claim form almost any time you re-apply for a benefit that was previously denied Including ancillary benefits such as specially adapted housing Should also include specific claim form if the evidence is substantially different (example: pension income changes) E-Benefits still allows veterans to file reopened issues on 21-526EZ, this will generate a request for application letter. There is now a warning about this on eBenefits 22
Claims for Increase VA Form 21-526EZ If claiming an increased rating and you are not concerned about the effective date or it has been more than a year since the last claim was filed on the issue, complete the 21-526EZ ITF applies to the 21-526EZ Be sure to add military service information to VetraSpec so future 21-526EZs are easier to complete Remember 38 CFR 3.400(o)(2) also applies for effective dates However if you are contesting a rating that was evaluated within the last year, be sure VA characterizes as a supplemental claim, not a claim for increase 23
Supplemental Claim Decision Rating decision will be in new AMA format with 8 decision points Supplemental claim decision can be challenged in any of three lanes: new supplemental claim with additional new and relevant evidence, higher level review, or appeal to BVA Request for higher level review can identify duty to assist errors in first or subsequent supplemental claim decision: VA must review entire record If claim denied due to no new and relevant evidence being submitted, can challenge (higher level review or NOD) determination on whether evidence was new and relevant Must have submitted or identified some evidence 24
Higher Level Review 38 CFR 3.2601 Veteran requests de novo review of rating decision by a higher authority Review is solely on evidence of record cannot submit additional evidence Decisions can be overturned based on difference of opinion or CUE Can only be requested within one year of rating decision 25
Higher Level Review Jurisdiction VA has established three Decision Review Operation Centers (DROCs) to address decision review requests for higher level review and BVA remands Located in Seattle, St. Petersburg, and Washington, D.C. (Appeals Management Office) 26
Higher Level Review Example Example: Johnny Utah claimed service connection for fibromyalgia related to service in Southwest Asia in 2005. He was diagnosed with fibromyalgia in 2011, three years after he separated from the military. Johnny completed an exam for fibromyalgia that sufficiently demonstrates his current level of impairment and the DBQ is in his record, along with his service records and his 2011 diagnosis. However, VA denied service connection based on the lack of a diagnosis of fibromyalgia while in service. What are some reasons Johnny might consider Higher Level Review? 27
Higher Level Review Why could Johnny request HLR? Fibromyalgia is a presumptive condition for Southwest Asia service Johnny s military record indicates that he has qualifying Southwest Asia service in Iraq in 2011 Johnny has a current diagnosis of fibromyalgia present for more than six months Johnny s exam indicates that the condition is compensable at a rate greater than 10% VA misinterpreted the presumption, which dictates that the condition must have emerged while serving in Southwest Asia OR by December 21, 2021. 28
Higher Level Review Form VA Form 20-0996 Block 13: Doesn t really matter all higher level reviews being sent to three Decision Review Operation Centers (DROCs) in Seattle, St. Petersburg, and Washington, D.C. Block 14: Informal conference check with your DSO on who will be representing at conference It will be a teleconference Block 15: Must list specific issues be sure to list whether service connection, increased rating, etc. Notice Opt-IN from SOC/SSOC Block 16: Signature Have claimant sign if possible especially if opting in to AMA We can sign if POA already of record 29
Higher Level Review can turn into Supplemental Claim 38 CFR 3.2601(g), 3.2502 When higher level review or BVA review is requested and the claim cannot be granted on the evidence of record BUT the evidence triggers duty to assist, development is completed Because development was triggered, claimant can now submit new evidence New rating decision made, veteran has all three options for decision review 30
Appeal to Board of Veterans Appeals The NOD is filed directly with the BVA There are three separate BVA dockets: Direct Review docket with no introduction of new evidence Evidence Only docket with limited window for introduction of new evidence (90 days after NOD) Hearing docket with limited window for introduction of new evidence (at hearing or 90 days after hearing) Remands only issued for pre-existing duty to assist errors or to obtain an advisory medical opinion 31
Appeal to Board of Veterans Appeals When should appeal to BVA be selected? When supplemental claim or higher level review results in another denial When you need a change in the law and want to get to CAVC quicker When you don t want VA to engage in more development Examples: Reductions Earlier Effective Dates Well-reasoned positive medical opinion 32
Board Appeal VA Form 10182 Under AMA, VA no longer requires VSOs to complete the VA Form 646 or Form 9. Instead, all arguments and contentions will be made on the new Notice of Disagreement (VA Form 10182) for claims going directly to the BVA. Block 11: Select Docket Block 12: List specific issues Check box if providing argument Notice Opt-In from SOC/SSOC 33
Tips on VA Form 10182 Appeals submitted directly to BVA (especially on the direct docket) must be researched fully NOD should have at least a 21-4138 attached with a well thought out argument Only use the no merit argument as a last resort If an appeal has several issues you may need to write up a separate argument for each issue. 34
Clarification of VA Form 10182 If BVA asks for clarification of the issues or the docket select on a NOD, claimant has 60 days or remainder of one year appeal period to respond This is crucial, because if the claimant does not respond, VA will not establish or will close out the appeal 38 CFR 20.202 35
BVA Dockets 36
Docket Dates BVA publishing appeals metrics on their public website: https://www.bva.va.gov/Appeals_Metrics.asp AMA allows flexibility in how cases are managed between dockets not a set ratio of legacy/direct/evidence/hearing VA is prioritizing legacy and direct docket 37
Docket Dates VA s goal is to decide direct docket claims within one year from VA 10182 This is not a deadline Evidence and Hearing dockets will take longer, unless advanced on the docket 38
Advancement on the Docket Advancement on the Docket (AOD) motions have the same criteria as in the past: age 75, seriously ill, severe financial hardship, administrative error resulting in significant delay in docketing, and at the discretion of the Chairman (such as areas affected by severe natural disasters). Legacy docket: 38 CFR 20.902 AMA dockets: 38 CFR 20.800 Contact VFW s office at BVA, or hearing branch, if veteran is scheduled for hearing, for AOD 39
Switching Dockets You can switch dockets at the BVA by filing a new NOD Time limit: within original one year from the rating decision, or 60 days after first NOD filed, whichever is later (38 CFR 20.202) If switching to evidence only docket, 90 days to submit evidence starts from the date the request to switch dockets is granted. Once evidence is submitted or a hearing is held, you cannot switch to the direct review docket Why? You have changed the evidentiary record and VA can t un-see the evidence or testimony 38 CFR 20.301, 20.302, 20.303 40
Medical Opinions Under AMA, BVA no longer requests independent medical opinions before making a decision Why? Because record is closed If representative requests or BVA determines that an advisory medical opinion is needed from an outside source (not C&P or contract C&P), BVA will remand for an advisory medical opinion 38 CFR 20.802 Example: 1151 claims for medical negligence All development occurs at AOJ 41
What about CUE? Challenging a final decision on the basis of clear and unmistakable error is still an option No specific form required, recommend 21-4138 to avoid confusion with other types of claims Should only be exercised if claimant is not in appeal timeframe Can still argue VA made an error, but higher level review or direct docket to BVA may be better Why? Higher bar of evidence to meet with CUE: standard of review 42
RAPID APPEALS MODERNIZATION PROGRAM (RAMP) RAMP was in effect from November 2017 through February 2019 Offered legacy appellants opportunity to opt into Supplemental Claim and Higher Level Review lanes after filing a NOD, filing a Form 9, having their claim certified to the BVA, or remanded from BVA Note: this did not include the SOC stage, however if VA accepted the election they should honor it VA is completing decisions for veterans who already opted into RAMP. If an election was made after February 2019, veteran will receive letter stating still processing legacy appeal 43
RAPID APPEALS MODERNIZATION PROGRAM (RAMP) ISSUES If your veteran opted into RAMP in the appropriate time limits but was told their appeal was cancelled, let us know. During RAMP, it was presumed that the veteran had submitted new and relevant evidence. If opting in today, you must submit or identify new and relevant evidence. During RAMP, veterans received a decision letter with appeal rights that allowed them to file a supplemental claim, higher level review or Board appeal on a special 21-4138. After February 19, 2019, that form is no longer valid If VA did not recognize and establish the decision review request, please assist the claimant in completing a 20- 0995, 20-0996 or VAF 10182, as appropriate. 44
Opting into AMA today Appellant in legacy appeal process can opt-in to AMA after receiving a Statement of the Case or Supplemental Statement of the Case Can select any lane, but only has time limit noted in SOC/SSOC (30 or 60 days) Once a veteran opts-in to AMA, that decision is final and the veteran cannot revert back to the legacy appeals program Can opt to file Form 9 instead and remain in legacy (or if Form 9 already filed, wait) 45
Downside to remaining in Legacy If you remain in the legacy system, you do not have the option of retaining the effective date by filing a supplemental claim within a year of BVA or CAVC decision Must obtain remand and be issued a new SOC/SSOC in order to opt in 46
What other changes does AMA create? While 94% of appeals are related to compensation or DIC, AMA will apply to all claims including pension, fiduciary, education, vocational rehabilitation, loan guaranty, insurance, burial benefits, and VHA appeals that are not solely clinical decisions See VA forms 20-0995 and 20-0996 VHA is reviewing their processes, manual and IT capabilities to be able to offer supplemental and higher level reviews 47
New information technology Caseflow: new IT program used to establish and track decision review requests AMA appeals will not be added to VACOLS: need to receive access to Caseflow Functionality still being updated Quality review program Additions to VHA telehealth application to provide BVA hearings 48
Pros and cons of choices at AOJ and BVA AMA creates more choice and more decisions to make about which option is best for your client AMA options are not one size fits all, they have pluses and minuses dependent on the evidence and how quickly a decision is needed Following are general guidelines on which option may be best in certain circumstances 49
Supplemental Claims When to use Denial from CAVC: supplemental claim is only option to preserve effective date Denial from BVA: you don t think an error was made, and you have new evidence Rating decision denial, and you now know what evidence you need to submit Rating decision denial, missed C&P exam 50
