The biggest changes to VA benefits appeals in decades will roll out next week that will speed up some claims at the expense of increased complexity and due process rights.
Under the Appeals Modernization Act (AMA), Congress created three channels or lanes for veterans to select when contesting an adverse decision from VA that were originally referred to as RAMP, or Rapid Appeals Modernization Program. Veterans seeking to maintain their rights under the existing appeals system must file their appeal immediately.
Today, VA is shutting down RAMP applications to then roll out the new system next Tuesday, February 19, that will allow the following three lanes:
- Option 1: Called the Supplemental Claim Lane, this option gives a veteran the chance to introduce new evidence they believe is relevant to a claims specialist to review and make a new decision. VA says it will help develop the evidence.
- Option 2: Called the Higher-Level Review Lane, this option allows veterans to seek a review from a senior adjudicator but does not allow the veteran to present new and relevant evidence. The adjudicator is looking for errors in interpreting evidence, policies or laws. The adjudicator can correct errors in this de novo Duty to assist errors can be returned to the originating regional office. Veterans and representatives can request informal meetings to identify specific issues.
- Option 3: This is the traditional appeal to the Board of Veterans Appeals with a twist. In this option, veterans have another three review types.
At the Board, the three review types are as follows:
- Direct Review: This type of review waives the right to a hearing and the veteran will not be able to submit additional information.
- Evidence Submission: This option allows the veteran to submit extra evidence without a hearing.
- Hearing: In this review, the veteran can submit new evidence as well as testimony before the Veterans Law Judge.
In addition, the Board will issue the Statement of the Case for veterans seeking to appeal rather than the Regional Office. The Board recently contracted with a private company to provide a legion of paralegals to assist with the process.
Decisions coming from the Board will be simplified in what has been termed by Board Chairman Cheryl Mason “clear language.”
“What the AMA was built and designed to do was create a simplified process for veterans. … [Officials] realized that veterans were confused by the process; it was a complex system and it simply took too long,” she said.
The new lanes will apply to many other benefits, not just disability compensation claims. Dave McLenachen, director of VBA Appeals Management, said the new system will be used for education and insurance decisions as well as vocational rehabilitation and caregiver benefits applications.
While some groups have been critical of the change, Mason described the change as “veteran friendly.”
“It gives veterans a choice and control over their process instead of getting stuck in the legacy system for three to seven years, on average,” she said.
The critic of the new appeals system is the creation of more complexity that will inevitably require veterans, VSOs, and attorneys to evaluate evidence more thoroughly earlier in the process when selecting the specific lane.
In my experience, receiving a claims file, ie evidence, from VA can take many months. This means pro se veterans must be prompt when reviewing decision letters. For veterans using VSOs, it also requires non-lawyers to interpret evidence and render legal advice.
For the past five years, at least, VSOs nationwide have advised veterans to seek reconsideration or reapply for benefits rather than appealing adverse decisions. The supposed benefit was to push through a claim faster. However, most disabled veterans were never advised they gave up thousands of dollars in backpay by not appealing to preserve the earlier effective date of the claim.
The new system is the result of years of negotiation to decrease the appeals backlog, which has taken up to seven years for some veterans.
Currently, the existing backlog for claims is 265,000 with another 136,000 claims on appeal to the Board. Officials said the goal is to clear the backlog within the next two years.
Now, Vietnam Veterans of America was not invited to testify about the new appeals rules but provided the following comment concerning due process concerns.
“The bill creates a system where a Veterans Law Judge (VLJ) may deny a claim because she does not have the duty to assist in gathering additional relevant federal documents necessary to get the claim granted. Although the veteran will have the ability to file a supplemental claim at the AOJ [Agency of Original Jurisdiction or the Regional Office], it hardly seems like a pro-veteran system where an adjudicatory body knows of possible helpful information for a claimant, but is not able to act on this knowledge in a helpful way to the veteran. Under this new framework, the pro-claimant system would deteriorate and it is nonsensical for a VLJ to receive additional evidence for consideration, but not be able to act in the veterans favor once receiving this evidence.”
One negative aspect of the new system is that it strips out the agency’s obligation to assist veterans in gathering evidence after the appeal is sent to the Board. Since veterans, unlike practically every other American, are not entitled to discovery in prosecuting claims, the existence of far-reaching duty to assist requirements are vital.
Now, those requirements are truncated for impaired veterans who are reliant on support from VA for a fair shot at receiving the support they need.
Commander John Wells (retired), executive director of Military-Veterans Advocacy, Inc., has been very critical of the new appeals system. In The Hill, Wells critiqued not only the new system but also the VSOs that supported it, namely American Legion, Veterans of Foreign Wars, and Disabled American Veterans:
The support of the American Legion, the Veterans of Foreign Wars and the Disabled American Veterans for HR 2288 is disheartening. Notably, they participated in the working VA working group that drafted the legislation. While pride of ownership is somewhat understandable, their refusal to protect the duty to assist rises to the level of a betrayal of the veterans.
Now they support the bill because “appellate reform” is a popular sound byte. This ignores the reality of the problem. The reform should actually solve the systemic problems within the VA; this bill does not. Instead, it makes a bad system worse.
No doubt the process will be a mess to start with, and veterans will likely select lanes that are not advantageous to them.
At the end of the day, most claims fail because the evidence gathered is incorrect or incomplete. Selecting a lane that allows the opportunity to develop better evidence should benefit every veteran unless the error is truly obvious.
So, a traditional VA appeal is going from 1 option to 6 options. VA was unable to accurately adjudicate claims without creating a massive backlog with just one option. How it will handle six options is beyond me.
However, the burden now is being put onto veterans to make decisions without legal education or training. VSOs likewise have some training but are ill-equipped to develop evidence or legal argument incorporating new expert opinions to rebut bad decisions.
Proceed with caution, my friends.