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The Veterans Appeals Improvement and Modernization Act of 2017 (Pub L.115-55) 

     The Appeals Modernization Act became law in August 2017, but did not fully apply to VA decisions until after February 2019.  This new law significantly changes how VA claims are to be adjudicated and how appeals may be pursued.  In addition to simplifying the appeals process, the new law provides additional benefits to claimants. To begin, the act imposes new notices to be provided by the VA in each decision, under 38 USC 5104(a):

  • identification of the issues adjudicated;
  • a summary of the evidence considered;
  • 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 that led to the denial;
  • an explanation of how to obtain or access evidence used in making the decision; and
  • if applicable, identification of the criteria that must be satisfied to grant a service connection or the next higher level of compensation.

      The elements of this notice should provide the claimant with a road map of how to succeed on a claim. Perhaps the most significant of the changes depicted in the VA notice is that the VA has to identify findings favorable to the claimant, and all future adjudicators are bound by these favorable findings, absent clear and unmistakable evidence to the contrary.

      Following a VA decision, a claimant has several options to pursue if the outcome regarding any claim is less than a full grant: file a supplemental claim, file a request for higher level review, or for review by the Board of Veterans’ Appeals. It is important to note that this notice and the options discussed below apply to each individual claim addressed in the VA decision, e.g., a claim for entitlement to a service connection for a left ankle disability, a claim for increase in disability compensation for diabetes, etc. Consequently, different decision review paths may be elected for each claim denied as circumstances warrant.  The choice of lanes, however, should be carefully considered as there are considerable time differences in the processing of the appeals.

     File a supplemental claim. If a supplemental claim is filed within one year of the rating decision, the effective date of the claim will be maintained. Use VA Form 20-0995, Decision Review Request: Supplemental Claim. In addition to submitting new evidence, the claimant may request that the VA assist in gathering new evidence. The VA estimates that this process should take 125 days on average before another decision is issued. After a new decision is made, the claimant once again has three options: direct appeal to the board, higher level review, or file a supplemental claim within one year.

     Request higher level review. For higher level review, use VA Form 20-0996, Decision Review Request: Higher-Level Review. This request must be filed within one year of the decision on appeal and the review is accomplished at Decision Review Operations Centers, currently in Seattle, Washington, or St. Petersburg, Florida. This option should be used when a mistake has been made in the original decision, such as misapplying the law or failing to adjudicate a claim on a presumptive basis rather than also on a direct basis. The decision will be made only on the evidence considered in the prior decision. An informal conference may be requested that is conducted by telephone with the decision maker. If the claimant wishes to appeal this decision, there are two options to be taken within one year to preserve the effective date: direct appeal to the board or file a supplemental claim.

    Review by the Board of Veterans’ Appeals (Board). For appeal to the Board, use VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement). The appeal must be filed within one year of the VA rating decision to maintain the effective date of the claim.  One of three lanes must be selected:

  • Direct review: You have no new evidence and do not want a hearing.
  • Evidence submission: You have new evidence, but do not want a hearing.
  • Hearing: You have new evidence and want to testify before a Veterans Law Judge.

         Direct review of a previously denied claim typically takes the least amount of time, but is not a good choice in all cases as no evidence can be submitted after the date of the prior denial.  If, for instance, a claim is denied on the basis of a negative VA medical opinion, or a lack of evidence of about the occurrence of an injury or disease in service, then a new decision will not likely differ from the original denial.  In many cases, additional evidence is needed to support the claim or at least rebut negative evidence against the claim.

      As a lack of supportive evidence is frequently a reason for denying a claim, then the option to submit new evidence within 90 days of filing the appeal is the best option.  While this likely will take longer than the direct review, the chances of success increase and may save time in the long run.

     The last option, direct review with a hearing before a Veterans Law Judge, takes the longest as many claimants seek an opportunity to be heard and there is a substantial backlog for hearings at the Board level.  This option does permit the submission of new evidence at the hearing and typically within 60 days following the hearing, but the additional time required to schedule the hearing substantially increases the time for a decision by the Board.

     If the Board denies a claim, an appeal may be taken to the U.S. Court of Appeals for Veterans Claims (CAVC) if filed within 120 days. Alternatively, a supplemental claim may be filed by submitting new and relevant evidence within one year of the Board decision and, if successful, the original effective date of the claim will be preserved. If a claim is denied at the CAVC, a claimant may also submit a supplemental claim within one year of the decision and also preserve the effective date of the claim. If, however, the appeal is taken to the U.S. Court of Appeals for the Federal Circuit, there is no provision to submit a supplemental claim following that decision, if adverse; and the effective date of the claim will not be preserved.

                 

Michael Viterna's testimony for NOVA before the Full Committee on Veterans' Affairs on improving the disability claims process

NOVA_Testimony_April_2013_to_HVAC_final.docx
 

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