The Veteran Appeals Improvement and Modernization Act of 2017 became law on August 23, 2017 (Pub L. 115-55). It is also known as the Appeals Modernization Act. You can read the law in full on Congress.gov.
According to the Veterans Service Organizations (DAV, VFW, American Legion etc.) and the VA, the new law intends to:
- Modernize the current claims and appeals process
- Include three review options for disagreements with decisions
- Require improved notification of VA decisions
- Provide earlier claim resolution
- Ensure you receive the earliest effective date possible
If the Rapid Appeals Modernization Process (RAMP) is any indication, the new law will come short of its intended aspirations. RAMP was launched in 2018 to permit veterans with pending appeals the opportunity to opt into the new appeals process and benefit from the improvements. We handled several and have mixed feelings about it. During the RAMP, we opted several of our appeals into the process. Many were granted and denied. We challenged the denials and got several overturned.
While the new laws and pertinent regulations may be complex, generally the new law provides 3 new lanes to handle appeals, which consist of the supplemental claim lane, higher level review, and notice of disagreement directly to BVA.
Supplemental Claims:
Higher Level Review
Supplemental Claims:
Opting into this lane, you need to provide new and relevant evidence to support your case. On average, this process takes about 6 months to get a decision. VA publicly claims that they will provide assistance in developing the evidence. We’ve found that the in generally, the VA doesn’t really assist with any additional development unless you set forth what you feel they should do.
Its more like appellant guided development. If you feel that the previous exam was inadequate, then its up to you to make the case that a new one should be conducted. This generally means that you have to submit an argument asserting the inadequacies of the examination. If they don’t agree that the exam was inadequate, they will simply deny the supplemental claim based upon no new and relevant evidence provided.
Another area of concern is the new laws intent to protected effective dates. Thus far, a majority of the favorable RAMP decisions grant the effective date as if you simply submitted a reopened claim rather than part of a continuously persecuted appeal. This leads to additional frustration as in order to correct the effective date, you must challenge it through the process provided either through another lane.
Higher Level Review
Opting into this lane requires that you assert that the case should have been granted based upon the evidence that was previously considered. You are not allowed to submit new and pertinent evidence. If you do, the case reverts to a supplemental claim. Similar to the Supplemental Claim, this process takes about 6 to 8 months to get a decision.
Your claim is reviewed by a more senior claims adjudicator and involves:
- A higher-level de novo review (new look) of the decision
- No submission of new evidence allowed
- The possibility of overturning the decision based on:
- A difference of opinion
- A clear and unmistakable error
The reviewer, who identifies or learns of a duty to assist error, can return the claim to the regional office for correction. Personal hearings are no longer offered at the local level. However, you can request an informal phone call to identify specific issues.
Notice of Disagreement Directly to BVA
If you desire, you can now appeal directly to the Board of Veterans Appeals (BVA) where it will undergo review by a Veterans Administrative Law Judge. You can choose between three options:
- 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.
After the VALJ considers all evidence, legal arguments and your contentions, a decision will be grant, deny, or remand each issue before them.
Note: Appeal to the Court of Appeals for Veterans Claims (CAVC), best for BVA decisions less than 120 days old where exception is taken to the findings and conclusions of the VALJ. We work with some of the most experienced and successful attorney’s who practice before the CAVC. We help with referring you and providing your attorney with the information needed to present your case to the court. The attorney works for EAJA fees paid by the Secretary of the VA should they prevail in your case. Prevailing generally means that the Court orders the BVA to vacate the decision and reconsider the appeal. From there, your case will be handed back to us to present it to the BVA.
Note: Since the attorney presenting your case is paid through the EAJA fees and we are paid based upon actual retroactive benefits payable to you when the VA grants the case, there is no conflict between the two services. We work well with these attorneys.
-Reopen the claim with the regional office by submitting new evidence. You can do this option simultaneously with the options mentioned above.