No. 2: Choose Your Own (Mis)Adventure

(Credit: Alexandr Bakanov – stock.adobe.com)

No. 2

Choose Your Own (Mis)Adventure

Navigating The VA’s Disability System Under the Veterans Appeals Improvement and Modernization Act of 2017

---

By Major Amber L. Turner

You and YOU ALONE are in charge of what happens in this story. There are dangers, choices, adventures, and consequences.
YOU must use all of your numerous talents and much of your enormous intelligence. The wrong decision could end in disaster—even death. But don’t despair. At any time, YOU can go back and make another choice, alter the path of your story, and change its result.1

If you grew up in the 1980s or 1990s, you probably remember the Choose Your Own Adventure books.2 As the reader, you took on the role of the protagonist, propelling yourself through the plot, the decision-making in your hands. There was a sense of power in the ability to choose your own path, a feeling of trepidation as you turned to the page you selected, and the joy of a successful choice. On the other hand, you may have experienced the sinking feeling upon seeing “The End” after suffering some miserable fate. The feeling likely did not last long—you probably had a thumb marking your last decision-point so you could quickly make another selection and continue through the story, the power back in your hands.

The Appeals Improvement and Modernization Act of 20173 (AMA) puts veterans on a similar adventure by significantly modifying the review and appeals process for disability claims in the Department of Veterans Affairs (VA).4 After an initial decision on a claim for disability benefits,5 the VA gives veterans three options to appeal the decision—to include options within those options and the ability to move between options. Additionally, veterans may seek the representation of an agent or attorney earlier in the process, allowing for additional assistance in choosing the correct path through their adventure. A wrong turn of the page could mean the difference between a successfully disputed claim and a veteran faced with “The End” of their claim. Given these legislative changes and the far-reaching consequences on a veteran’s claim, it is imperative that practitioners (both attorneys and representatives within Veterans Service Organizations) understand the process and the effects these changes will have on veterans, and can properly advise them while they navigate the numerous options available to them.

After briefly discussing the path a disability claim takes in the “legacy system,” “Legislative History of the AMA” summarizes the legislative history leading to the enactment of the AMA. “The AMA Framework” focuses on a detailed overview of the new review and appeals process, to include every option available to veterans and the effect of those options on claim effective dates. Last, “Tips for Practitioners” lays out useful practice points for assisting veterans navigating the new system.6

The “Legacy System”

Prior to the enactment of the AMA, the VA appeals system was “an accumulation of processes and procedures that have built up in stages since [World War I].”7 In 2016, the Secretary of Veterans Affairs described the legacy system as:

complex, ineffective, confusing, and understandably frustrating for Veterans who wait much too long for final resolution of their appeal. The current appeals process has no defined endpoint, and multiple steps are set in statute. The system requires continuous evidence gathering and multiple re-adjudications of the very same or similar matter. A Veteran, survivor, or other appellant can submit new evidence or make new arguments at any time, while the VA’s duty to assist requires continuous development and re-adjudication. Simply put, the VA appeals process is unlike other standard appeals processes across Federal and judicial systems.8

A brief overview of the legacy system will assist practitioners in understanding the substantial changes the AMA brings to the appeals process. A visual chart is included in Appendix A9 to aid in the explanation of the legacy system.

Notice of Disagreement

Under the legacy system, a veteran who received an unfavorable rating from the VA Regional Office (RO) initiated the appeal process by filing a Notice of Disagreement (NOD) within one year of the initial decision.10 A veteran then had the ability to choose between traditional review or review by a Decision Review Officer (DRO). In the traditional review process, a reviewer at the RO reviewed the file, examined any new evidence submitted by the veteran, and had the authority to change the original decision based on the new evidence or based on a clear and unmistakable error in the initial decision.11 Alternatively, a veteran could have elected for review by a DRO. Assessment by a DRO included review by an “individual who did not participate in the decision being reviewed” and who gave “no deference to the decision being reviewed.”12 The DRO had the ability to revise a decision based on a difference of opinion.13

Statement of the Case and Appeal to the Board of Veterans’ Appeals

Following review (through either lane), the RO sent the veteran a Statement of the Case (SOC). The SOC detailed the evidence reviewed, applicable laws and regulations, and the VA’s reasons for any decisions made.14 After receipt of the SOC, a veteran could file a substantive appeal to the Board of Veterans’ Appeals (BVA) for a one-time review.15 Following a hearing (if requested), the BVA reviewed the entire record de novo and either granted the appeal, denied the appeal, or remanded the claim back to the RO for additional development.16 Following a decision by the VA, a veteran could appeal to the Court of Appeals for Veterans Claims (CAVC), with follow-on review available in limited circumstances at the U.S. Court of Appeals for the Federal Circuit and the U.S. Supreme Court.17

Evidence Submission

Under the legacy system, veterans had the ability to submit additional evidence to support their claim at any time during the appeals process.18 If a veteran submitted evidence after filing an NOD, but before the VA issued an SOC, the VA would review the evidence and incorporate it into the SOC. If the VA received the evidence after issuing the SOC, the VA reviewed the evidence and issued a Supplemental Statement of the Case (SSOC).19 This occurred every time a veteran submitted additional evidence.20 If the veteran submitted evidence after filing a substantive appeal to the BVA, the BVA could remand the claim back to the RO for re-adjudication and issuance of another SSOC.21

Duty to Assist

Under the legacy system, the VA was required by law to assist veterans in obtaining and developing evidence throughout the entire appeals process, from the filing of an initial claim through final adjudication.22 As one can imagine, an appeal could sit in the legacy system for years, a process that essentially re-started every time a veteran submitted additional evidence. With over 417,000 appeals pending in October 2017, veterans could expect to wait up to seven years for resolution of their appeal.23 The continuous re-adjudication and years of waiting for a decision highlighted the ineffectiveness, confusion, and frustration of the system as it stood, leading to a push by legislators, veterans’ advocates, and veterans themselves for change.24

Legislative History of the AMA

The AMA was a deeply collaborative effort between Congress and multiple organizations that represent veterans in the claims process. In February 2016, President Barack Obama submitted his Fiscal Year (FY) 2017 budget to Congress. The President’s budget specifically addressed and prioritized a proposal to reform the VA appeals process.25 The President’s message echoed the VA’s budget request, which requested additional funds to support, and asked Congress to enact a “Simplified Appeals Process.”26

Following submission of the FY 2017 budget, in March 2016, the VA convened an “Appeals Summit.”27 Prior to this summit, both the Senate and House of Representatives introduced legislation proposing a “fully developed appeals” process; however, no legislation made it to enactment.28 The 2016 summit involved four months of collaboration with congressional staff, the BVA, and stakeholders in the appeals process.29 Seeking to balance the VA’s desire to expedite and streamline the appeals process with stakeholders’ intimate knowledge of the problems facing veterans in the appeals process, eleven stakeholder organizations participated in the development of a proposal.30 Concerns raised by veterans’ advocates included the desire for more detailed decision letters, preservation of effective dates, and an easy-to-understand process that gave veterans more options.31 The proposals developed during this summit would eventually become the foundation for the AMA.

Following the 2016 summit, both the House and Senate introduced several bills in an attempt to overhaul the appeals system using the knowledge gained from the 2016 summit,32 but the 114th congressional term ended with no enacted legislation significantly altering the appeals process. On 2 May 2017, Representative Mike Bost introduced House of Representatives Bill (H.R.) 2288—also known as the Veterans Appeals Improvement and Modernization Act of 2017.33 The next day, Senator Johnny Isakson introduced similar legislation.34 The House and Senate eventually passed H.R. 2288, and President Donald Trump signed the AMA into law on 23 August 2017.35

In November 2017, the VA again met with stakeholders to highlight the changes made by the AMA and address specific concerns raised by stakeholders.36 Using this meeting as a foundation, the VA published its proposed rule to implement the AMA in August 2018, accepting comments for roughly two months.37 After reviewing and addressing submitted comments, the VA published the final rule on 18 January 2019, which ultimately took effect on 19 February 2019.38

The AMA Framework

Under the AMA framework, veterans have three options to contest a decision on a claim. They may 1) seek higher-level review from the agency of original jurisdiction;39 2) file a supplemental claim; or 3) file an NOD with the BVA.40 See Appendix B41 for a visual representation of this framework. For three reasons, this decision point is where the adventure truly begins and is explored below.

The first is the ability of veterans to bifurcate claims among different review options:

With respect to service-connected disability compensation, an issue . . . is defined as entitlement to compensation for a particular disability. For example, if a decision adjudicates service-connected disability compensation for both a knee condition and an ankle condition, compensation for each condition is a separate entitlement or issue for which a different review option may be elected.42

Essentially, using the example described above, a veteran could have multiple Choose Your Own Adventure books open at a time, appealing a decision regarding the knee condition in a separate venue from an appeal regarding the ankle condition.

Second, if a veteran timely and properly files under the requirements for each option, a claim could sit in the review and appeals system, bouncing from option to option, with no clear finality. The AMA actually contemplates and allows for “continuously pursued claims,” whereby a veteran can, in succession, dispute a decision from one lane in another.43 A detailed explanation of each review option below will highlight some limitations to this rule. Last, while a claim is pending adjudication in one review lane, a veteran may withdraw the review request and file it in a different lane, which is discussed in detail in “Court of Appeals for Veterans Claims.”

Review Options

Higher-Level Review

Higher-level review is a “new look” at a claim decided by the RO and purports to be the fastest review option of the three.44 Veterans must submit their request for higher-level review within one year of the RO’s issuance of a decision. Generally, an “experienced” adjudicator who did not participate in the original decision—and who is from an office that did not render that decision—will conduct the higher-level review (unless the veteran requests an exception or the claim requires specialized processing).45 Review is de novo and limited to the evidence in the record as of the date of the original decision.46

When requesting higher-level review, a veteran may request an informal conference with the higher-level adjudicator for the sole purpose of allowing the veteran to identify any errors.47 Following this conference (if requested), the adjudicator will review the evidence available at the time of the initial decision and issue a detailed decision that includes all the elements required for written notifications of decisions, along with a description of any evidence not considered and a list of options available to the veteran.48 Following a decision on higher-level review, a veteran may either file a supplemental claim or appeal to the BVA.49

Supplemental Claim

A supplemental claim is a request for re-adjudication of a claim by the RO based on “new and relevant” evidence.50 “New” evidence is defined as “evidence not previously part of the actual record before agency adjudicators.”51 “Relevant” evidence is defined as “information that tends to prove or disprove a matter at issue in a claim.”52 Review is limited to the record as of the date of the original decision and any new and relevant evidence submitted prior to the VA issuing a decision on the supplemental claim.53 Although significantly curtailed by the AMA, the filing of a supplemental claim is one way to trigger the VA’s duty to assist.

Remember that, under the legacy system, the VA’s duty to assist a veteran existed at all stages in the adjudication process.54 Under the AMA, the VA’s duty to assist prior to issuance of an initial decision remains the same, as it existed under the legacy system.55 However, the AMA has significantly limited the VA’s duty to assist after the initial decision, applying the duty only to a supplemental claim.56

A veteran may file a supplemental claim any time after the issuance of a decision from the RO; however, as discussed below, the timing can change the effective date for benefits.57 Following a decision on a supplemental claim, a veteran may file another supplemental claim, request a higher-level review, or appeal to the BVA.58

Board of Veterans Appeals

Selecting this option takes a claim out of the agency of original jurisdiction (RO) and moves it (not permanently) to the BVA. To effectuate an appeal to the BVA, a veteran must file an NOD.59 When filing an NOD, veterans can select from three dockets for the processing of their appeal by the board: 1) the hearing docket, 2) the evidence docket, or 3) the direct docket.

Veterans can opt for the “hearing” docket, whereby the VA affords them both the opportunity to submit additional evidence and to have a hearing in front of the board. The board will consider evidence in the record at the time of the original decision, evidence submitted by the veteran during the hearing, and evidence submitted to the board within ninety days following the hearing.60 The BVA conducts hearings at the VA in Washington, D.C., or through videoconference at a VA facility.61 The hearing consists of testimony by the veteran and any witnesses, introduction of evidence, and argument by the veteran or veteran’s representative.

If a veteran does not want to have a board hearing, but wishes to submit additional evidence, the “evidence” docket is the most appropriate. Veterans may submit additional evidence with the NOD, or up to ninety days following the board’s receipt of the NOD.62

Last, a veteran may select the “direct” docket, in which they do not request a hearing or to submit additional evidence. Think of this as a higher-level review conducted by the BVA, as opposed to an adjudicator from the RO. The board reviews only the evidence in the record at the time of the decision by the RO.63 The VA projects this docket will have the fastest processing time of the three (365 days), but also expects the process to take much longer than higher-level review or a supplemental claim (125 days).64

Once a veteran files an NOD and makes a docket selection, they maintain a limited ability to switch dockets. For example, if a veteran originally selected the “direct” docket, but subsequently decides to submit evidence and/or have a hearing (“evidence” or “hearing” docket), the regulations provide for this with certain limitations. The switch in dockets must occur within one year of the date the RO issued a decision on the claim, or within sixty days of receipt of the NOD by the BVA (whichever is later).65 The BVA will not grant a request to change dockets if the veteran has already submitted evidence in the “hearing” docket or “evidence” docket lanes.66 Practically speaking, a change in dockets will only be advantageous when a veteran is seeking to move from the “direct” docket to the “evidence” or “hearing” docket.

The board will render a decision following a de novo review of the evidence and testimony, if any.67 The restrictions on the type of evidence the board will consider are not clear. While the VA requires “new and relevant” evidence for a supplemental claim,68 this standard does not appear to apply to review by the BVA. The evidentiary limitations require the board to maintain “reasonable bounds of relevancy and materiality” and allows for the exclusion of “documentary evidence, testimony, and/or argument which is not relevant or material to the issue, or issues, being considered or which is unduly repetitious.”69 Following a decision by the BVA, a veteran may file a supplemental claim or appeal to CAVC, but may not submit a request for higher-level review.70

Court of Appeals for Veterans Claims

Appeal to CAVC operates in much the same way as it did under the legacy system, with the exception of an additional option for further review following a CAVC judgment. Following a decision by the BVA, a veteran has 120 days to submit an appeal to CAVC.71 The scope of review by CAVC is limited, but CAVC has exclusive jurisdiction over decisions by the BVA and the authority to affirm, modify, reverse, or remand those decisions.72 Veterans may spend a significant amount of time waiting for a CAVC decision. In its annual report for FY 2018 (prior to the AMA taking effect), CAVC reported receiving 6,802 appeals.73 The court took an average of 233 days to process an appeal from the time of filing to disposition.74 In its FY 2020 report, CAVC reported receiving 8,954 appeals, with an average processing time of 265 days.75 As the AMA took effect in February 2019, the FY 2020 report is the first to cover an entire year operating under the AMA. However, the COVID-19 pandemic may have influenced the statistics in the FY 2020 report to a degree. As a result, the FY 2021 or FY 2022 reports may be the best assessment of processing times at CAVC under the AMA.76 In any event, it appears that the CAVC expects its caseload to continue to grow, reporting that the court saw an average of 748 appeals filed per month during FY 2020, the highest in CAVC’s 30-year history.77 Veterans going down this road should plan for a longer rather than shorter adjudication time.

Following a CAVC judgment, a veteran may appeal to the Court of Appeals for the Federal Circuit, but should expect to wait six to fourteen months for a decision on their appeal.78 Alternatively, if new and relevant evidence becomes available, a veteran may file a supplemental claim and thrust the appeal back to the RO.79 As detailed above in discussing supplemental claims, as a veteran now has the ability to take a decision on that supplement claim and submit another supplemental claim, request higher-level review, or appeal to the BVA, this has the potential to add a significant amount of time to the processing of an appeal. This situation especially highlights the many avenues present in the page-turning adventure of the AMA.

Effective Dates

Choosing an appeal option is only half the battle. With all the options available, it is important for practitioners to be able to competently explain how the different options affect the effective date for a claim, with the goal of ensuring the preservation of the earliest possible effective date. This will require careful attention to the date the RO issues a decision and the date a veteran submits a request for higher-level review, a supplemental claim, or appeals to the BVA. The effective date is critical, as it is the date that a veteran becomes eligible for benefits on an approved claim.

The earliest possible effective date for entitlement to benefits is the day following separation from service.80 The AMA provides that, as long as a veteran continues to pursue a claim in the applicable timeframes, the effective date will remain the date of that initial application.81 For example, if a veteran files an application (more than a year after separation) for compensation on 1 March 2019, and receives notice of a decision from the RO on 1 August 2019, the claim effective date is 1 March 2019. They must file for review (in any lane) before 1 August 2020, to preserve that effective date. If, instead, that same veteran allows the one-year timeline to lapse (after the initial decision, higher-level review decision, supplemental claim decision, or decision by the BVA), they are limited to filing a supplemental claim, and the earliest possible effective date is the date of receipt of the supplemental claim.82 After filing the supplemental claim, if the veteran continues to pursue the claim within the timeframes discussed above for higher-level review and appeal to the BVA, they will continue to preserve the effective date as the date of the supplemental claim. This effective date nuance is further complicated by the ability to change review lanes during the appeals process.

Preserving the Effective Date When Changing Review Lanes

While pending a decision in one review lane, a veteran can withdraw their request and switch review lanes while still preserving the initial effective date, as long as the veteran completes the switch during the one-year period.83 That is, a veteran can essentially place a thumb on the last page in their adventure, but go back and change their mind without losing the initial effective date. In the previous example, if the veteran filed a request for higher-level review before 1 August 2020, but then decided to withdraw the request and instead submit a supplemental claim, the effective date of 1 March 2019 would stand—as long as the veteran withdrew the request for higher-level review and filed the supplemental claim prior to 1 August 2020.

Preserving the Effective Date After the One-Year Time Limit Has Expired

All is not lost, however, if the one-year period does elapse. In this situation, a veteran can still preserve the initial effective date in limited circumstances with two caveats. The first is that a veteran is limited to filing a supplemental claim after the one-year time limit expires.84 Second, and more important, to preserve the initial effective date, the veteran must request an extension from the VA of the one-year time limit and show “good cause.”85

To show good cause, a veteran must articulate to the VA in a request for an extension “why the required action could not have been taken during the original time period and could not have been taken sooner than it was.”86 No clear requirements exist on what constitutes good cause, but case law states that the determination is a “decision committed to sole discretion of the Secretary,”87 and the standard of review is “highly deferential and . . . equated to the abuse-of-direction standard.”88 Even if the Secretary determines no good cause exists for an extension to the filing timeframe, the VA will still adjudicate the supplemental claim. The effective date, instead of being the date of the initial claim, will be the date of the supplemental claim.

Finality

With a “continuously contested appeals” process, one might wonder when a decision is final, if ever. The VA considers a claim “finally adjudicated” upon the expiration of the timeframe to file for higher-level review, a supplemental claim, or an appeal to the BVA, or at disposition on judicial review when no review option is available.89

In the simplest scenario, the VA considers a fully granted claim finally adjudicated after the one-year time limit to file for review has lapsed. One can imagine, however, a scenario where a claim could sit in the review process, evading final adjudication for years. For example, a veteran could—after an initial decision from the RO—file in succession a request for higher-level review, a supplemental claim, an appeal to the BVA, and an appeal to CAVC. Supposing that the veteran meets all applicable timelines to keep the claim “continuously pursued,” even after a final judgment from CAVC, the claim is not finally adjudicated if the veteran files a supplemental claim within one year of the CAVC judgment. This scenario obviously works against the AMA’s goal of expediting the appeal process. Practitioners can do much to ensure this does not happen.

Tips for Practitioners

One of the most pressing reasons veterans and their advocates pushed for a change to the appeals process is that veterans did not understand the legacy system.90 The system was confusing, and, at times, veterans did not even know where they were in the process.91 Given this, it is a fair assumption that most veterans do not know the appeals process has changed; and, if they do, they are unlikely to understand the new process. Under the AMA, practitioners can insert themselves into the process earlier than under the legacy system. In the legacy system, veterans could not utilize paid representation until they filed an NOD to the BVA.92 The AMA allows for paid representation at the point a veteran receives notice of the RO’s initial decision.93 It is this author’s hope, in an effort to choose the correct appeal path from the start, veterans will reach out to practitioners after receiving this initial decision.

Directing veterans to the most appropriate lane based on their particular circumstances can help contribute to a quicker decision and keep them from becoming the subject of their own Choose Your Own Adventure novel. Upon receiving an initial decision from the RO, there are a few key tasks will help practitioners guide veterans to the proper review lane.

Understanding the Notification Letter

The first step in determining which lane in the appeals process to pursue is a thorough reading of the RO’s decision letter. The AMA provides far more detailed notification letters earlier in the process than the legacy system.94 Part of this detailed notification includes “identification of elements not satisfied leading to denial” and “identification of the criteria that must be satisfied to grant service connection or the next higher level of compensation.”95

Assuming the notification letter adequately identifies information a veteran can submit to substantiate their claim, practitioners should categorize the missing information or evidence. Missing information can be separated into three categories: 1) information the VA should have acquired under their duty to assist; 2) information the VA can acquire if a veteran provides enough information to the VA sufficient to locate the records; and 3) information the veteran has to provide on their own.96 The practitioner should also consider whether the evidence is “new and relevant” or simply additional evidence.

After this review and categorization, a practitioner has essentially come to the Choose Your Own Adventure part of the story. From here, practitioners will need to ensure the veteran chooses the next step that is best for the veteran and their claim.

Choosing an Appeal Lane

Higher-Level Review

Remember that during higher-level review, the adjudicator will not consider any additional evidence. Given this, is it ever beneficial to recommend a veteran file for higher-level review? There are three situations where it can be.

First, if the VA failed in their duty to assist during adjudication of the original claim, the higher-level reviewer must return the claim for correction and re-adjudication.97 Remember that the VA has three main areas where it must assist during adjudication of an initial claim.98 If a veteran believes the VA failed in its duty to assist in any of these three ways, higher-level review provides the mechanism to have the claim re-adjudicated without submitting new evidence or appealing to the BVA. This is where the categorization of missing information becomes important. If it is clear that the VA failed to acquire the veteran’s service medical records, or had sufficient information and authorization to obtain a veteran’s private medical records and failed to acquire and consider these records, a higher-level reviewer should return the claim for re-adjudication.

Second, higher-level review is appropriate if a veteran believes that the adjudicator made an error of law or fact in making the original decision. If the VA failed to apply the correct rating schedule, failed to review all the evidence in the file, or failed to presume service connection when required to by law, a higher-level reviewer can order the claim be re-adjudicated, without the submission of new evidence or the longer decision time at the BVA.

Last, higher-level review is appropriate if a mere difference of opinion on the part of the experienced adjudicator may result in a revised decision. Higher-level adjudicators are “senior technical expert[s] in adjudication matters”99 and have the authority to change a decision based on a difference of opinion.100 The VA expects these individuals to have three years of adjudication experience and a mandated fifty-seven hours of training.101 If a veteran has no new evidence, but wants the benefit of review by an experienced adjudicator who may change a decision based on a difference of opinion, higher-level review may be the right way to go. The veteran will still receive a detailed notification decision letter, allowing for a more informed second step, if necessary.

Supplemental Claim

A supplemental claim is most appropriate when a veteran has new and relevant evidence to support a claim, wishes to trigger the duty of the VA to assist in obtaining some or all of that evidence, and is looking for a quicker decision than appealing to the BVA.102

While a veteran can submit additional evidence through either a supplemental claim or appeal to the BVA, the VA projects review of a supplemental claim to take much less time than review at the BVA.103 Most importantly, the filing of a supplemental claim triggers the VA’s duty to assist, whereas appeals to the BVA do not.104 If there is “new and relevant” evidence that the veteran needs assistance in acquiring, this is the way to get it.105 Remember that to trigger the duty to assist, the veteran must provide sufficient information to locate the records.106

BVA

Given the shorter processing times for higher-level review and supplemental claims, practitioners may be dissuaded from recommending that a veteran go straight to the BVA.107 However, there are some reasons a veteran might want to go down this route.

The decision-maker at the BVA is a Veterans Law Judge (VLJ). A VLJ is an administrative judge employed by the BVA. A VLJ is required to hold a juris doctor degree and be licensed to practice law.108 Additionally, a VLJ must have seven years of experience in veterans law.109 While this does not guarantee a favorable result, veterans may want to take advantage of the experience a VLJ brings to the table in the review of their claim.

Another reason a veteran may wish to proceed directly to the BVA is to open the possibility of appealing to CAVC right away. Practically speaking, there is little adjudicative difference between a request for higher-level review and an appeal to the BVA in the “direct” docket. No additional evidence is considered, and the record is limited to the evidence in the record at the time of the RO’s decision.110 Appeal to the BVA will result in a longer adjudicative time,111 but a decision from the BVA is directly appealable to CAVC, whereas a decision from higher-level review is not.112 If a veteran has no additional evidence to submit, and does not mind the processing time at the BVA, appeal to the BVA may be the best course of action. The veteran is able to automatically appeal to CAVC and still has the ability to file a supplemental claim after the BVA decision (or after the CAVC judgment if the veteran decides to appeal to CAVC).

If a veteran does have additional evidence to submit, the “hearing” or “evidence” docket is appropriate and may be preferential to filing a supplemental claim. The law is unclear regarding whether the BVA requires evidence to be “new and relevant.” The BVA’s decision is “based on a de novo review of the evidence of record at the time of the agency of original jurisdiction decision on the issue or issues on appeal, and any additional evidence or testimony submitted.”113 This is not the same standard required for the filing of a supplemental claim (“new and relevant”).114 There is an argument that “additional evidence” is broader than “new and relevant.” One can assume this is an intentional drafting difference by Congress and the VA. Therefore, veterans who have evidence that may not be “new and relevant”, but that does help support their claim, may want to try to take advantage of this difference in terms outlined in the law.

Conclusion

While making significant changes to the appeals process, at the request and guidance of multiple stakeholders, the AMA can still be a confusing process to veterans attempting to navigate it. The options appear endless, and one choice can make the difference between a successful claim and “The End.” Practitioners can do much to inform veterans of the process and guide them through the twists and turns. A thorough understanding of the options, along with the key tips discussed in this article, can help veterans hold the power in the Choose Your Own Adventure (or “Misadventure”) novel that is the AMA. TAL

---

MAJ Turner is the Chief of National Security Law and Senior Intelligence Law Instructor at Fort Huachuca, Arizona.

---

Notes

1. R.A. Montgomery, Choose Your Own Adventure: House of Danger, at i (Chooseco 2006) (1982).

2. The Choose Your Own Adventure gamebooks were a series of books published by Bantam Books from the 1970s through the 1990s and are now published by Chooseco LLC. History of CYOA, Choose Your Own Adventure, https://www.cyoa.com/pages/history-of-cyoa (last visited June 1, 2021).

3. Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (codified as amended in scattered sections of 38 U.S.C.).

4. Stacey-Rae Simcox, Professor of Law and Director of Stetson University College of Law’s Veterans Law Institute and Veterans Advocacy Clinic, first alluded to this idea in 2019. See Stacey-Rae Simcox, Thirty Years of Veterans Law: Welcome to the Wild West, 67 U. Kan. L. Rev. 513, 549 (2019).

5. The Appeals and Modernization Act of 2017 (AMA) and corresponding Department of Veterans Affairs (VA) regulations apply to all claims for monetary benefits from the VA, to include compensation (disability), pension/survivor benefits, fiduciary benefits, and burial benefits. VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019) (codified as amended in scattered sections of 38 C.F.R.). This article solely focuses on claims for disability benefits.

6. This article does not address the process of filing for an initial decision on a disability claim, nor does it seek to critique the legacy system of appeals. As a guide for practitioners, this article also does not critique the AMA, except by way of explaining, in detail, how to navigate the new review and appeals process under the AMA.

7. The Fiscal Year 2017 Budget for Veterans’ Programs: Hearing Before the S. Comm. on Veterans’ Affs., 114th Cong. 165 (2016) (response to post-hearing questions submitted by Sen. Johnny Isakson, Chairman, S. Comm. on Veterans Affs., to the U.S. Dep’t of Veterans Affs.).

8. Id. at 21 (prepared statement of Robert A. McDonald, Sec’y, U.S. Dep’t of Veterans Affs.).

9. U.S. Gov’t Accountability Off., GAO-17-234, VA Disability Benefits: Additional Planning Would Enhance Efforts to Improve the Timeliness of Appeals Decisions fig.1 (2017).

10. 38 U.S.C. § 7105(b)(1) (2018).

11. U.S. Gov’t Accountability Off., supra note 9, fig.1.

12. 38 C.F.R § 3.2600(a) (2018).

13. U.S. Gov’t Accountability Off., supra note 9, fig.1.

14. 38 U.S.C. § 7105(d)(1) (2018).

15. 38 U.S.C. § 7104(a) (2018). A veteran had to file an appeal within sixty days from the time the VA mailed the Statement of the Case (SOC). Id. § 7105(d)(3).

16. The Fiscal Year 2017 Budget for Veterans’ Programs: Hearing Before the S. Comm. on Veterans’ Affs., 114th Cong. 178 (2016) (response to post-hearing questions submitted by Sen. Richard Blumenthal to U.S. Dep’t of Veterans Affs.).

17. 38 U.S.C. § 7266(a) (2018); 38 U.S.C. § 7292(a), (c) (2018). Judicial review did not become available to veterans until 1988. Veterans’ Judicial Review Act, Pub. L. No. 100-687, 102 Stat. 4105 (1988).

18. The Fiscal Year 2017 Budget for Veterans’ Programs: Hearing Before the S. Comm. on Veterans’ Affs., 114th Cong. 178 (2016) (response to post hearing questions submitted by Sen. Richard Blumenthal to U.S. Dep’t of Veterans Affs.).

19. Id. The VA could also change its initial decision based on the additional evidence provided, but they would have to issue a Statement of the Case (SOC)/Supplemental Statement of the Case (SSOC) when unable to grant benefits. Id.

20. Id. This meant that the VA issued a new SSOC each time a veteran submitted additional evidence, adding an average of 360 days per SSOC to the appeal processing timeline in Fiscal Year (FY) 2015. Id.

21. Id. Sixty percent of decisions remanded back to the VA were a result of veterans submitting additional evidence after the appeal reached the Board of Veterans’ Appeals (BVA). Id.

22. The VA’s duties included: 1) notifying veterans of information required of them to substantiate their claim; 2) assisting veterans in obtaining evidence to substantiate their claim; and 3) providing medical examinations or obtaining medical opinions when necessary to decide a claim. 38 U.S.C. § 5103A (2018).

23. U.S. Dep’t of Veterans Affs., Comprehensive Plan for Processing Legacy Appeals and Implementing the Modernized Appeals System 6 (2017), https://benefits.va.gov/benefits/docs/appeals-report-201711.pdf (noting that seven years elapsed from the time a veteran initiated an appeal to final resolution by the BVA).

24. H.R. Rep. No. 115-126, at 30 (2017).

25. Off. of Mgmt. & Budget, Exec. Off. of the President, Budget of the United States Government, Fiscal Year 2017, at 85 (2016).

26. U.S. Dep’t of Veterans Affs., Budget in Brief 35 (2016); The Fiscal Year 2017 Budget for Veterans’ Programs: Hearing Before the S. Comm. on Veterans’ Affs., 114th Cong. 21–24 (2016) (prepared statement of Robert A. McDonald, Sec’y, U.S. Dep’t of Veterans Affs.).

27. VA Claims and Appeals Modernization, 83 Fed. Reg. 39,818–19 (Aug. 10, 2018). This summit served as an extension of similar, but smaller, meetings that began in 2014. Simcox, supra note 4, at 548 (citing Legislative Hearing on: H.R. 3216, H.R. 4150, H.R. 4764, H.R. 5047, H.R. 5083, H.R. 5162, H.R. 5392, H.R. 5407, H.R. 5416, H.R. 5420, H.R. 4528: Hearing Before the H. Comm. on Veterans’ Affs., 114th Cong. 55 (2016) (statement of Paul Varela, Assistant Nat’l Legis. Dir., Disabled Am. Veterans)).

28. Express Appeals Act, H.R. 800, 114th Cong. (2015); American Heroes COLA Act of 2015, H.R. 677, 114th Cong. (2016); Express Appeals Act of 2016, S. 2473, 114th Cong. (2016).

29. Simcox, supra note 4, at 548 (citing Legislative Hearing on: H.R. 3216, H.R. 4150, H.R. 4764, H.R. 5047, H.R. 5083, H.R. 5162, H.R. 5392, H.R. 5407, H.R. 5416, H.R. 5420, H.R. 4528: Hearing Before the H. Comm. on Veterans’ Affs., 114th Cong. 21 (2016) (statement of Paul Varela, Assistant Nat’l Legis. Dir., Disabled Am. Veterans).

30. U.S. Gov’t Accountability Off., supra note 9, at 24. The organizations included in discussions with the VA were the American Legion, American Veterans, Disabled American Veterans, Military Officers Association of America, National Association of County Veteran Service Officers, National Association of State Directors of Veterans Affairs, National Organization of Veteran Advocates, National Veterans Legal Services Program, Paralyzed Veterans of America, Veterans of Foreign Wars, and Vietnam Veterans of America. Id. n.43.

31. Legislative Hearing on the Veterans Appeals and Modernization Act of 2017: Hearing on H.R. 2288 Before the H. Comm. on Veterans’ Affs., 115th Cong. 35 (2017) (prepared statement of Louis J. Celli Jr., Director of Nat’l Veterans Affs. & Rehab. Div., The Am. Legion).

32. VA Appeals Modernization Act of 2016, H.R. 5083, 114th Cong. (2016); VA Accountability First and Modernization Act of 2016, H.R. 5620, 114th Cong. (2016); VA Accountability First and Modernization Act of 2016, S. 3170, 114th Cong. (2016); VA Accountability First and Modernization Act of 2016, S. 3328, 114th Cong. (2016).

33. Legislative Hearing on the Veterans Appeals and Modernization Act of 2017: Hearing on H.R. 2288 Before the H. Comm. on Veterans’ Affs., 115th Cong. (2017).

34. Hearing on Pending Legislation: Hearing on S. 23, S. 112, S. 324, S. 543, S. 591, S. 609, S. 681, S. 764, S. 784, S. 804, S. 899, S. 1024, S. 1094 Before the S. Comm. on Veterans’ Aff.s, 115th Cong. (2017).

35. Veterans Appeals and Improvement Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (codified as amended in scattered section of 38 U.S.C.).

36. VA Claims and Appeals Modernization, 83 Fed. Reg. 39,818–19 (Aug. 10, 2018) (codified as amended in scattered sections of 38 C.F.R).

37. Id. at 39,818.

38. VA Claims and Appeals Modernization, 84 Fed. Reg. 138 (Jan. 18, 2019).

39. The agency of original jurisdiction is the “activity which entered the original determination with regard to a claim for benefits under laws administered by the Secretary.” 38 U.S.C. § 101(34) (2019). The agency of original jurisdiction with regards to a claim for disability compensation is the Veterans Benefits Administration (VBA) Regional Office (RO) where the initial adjudication of a veteran’s claim is made.

40. 38 U.S.C. § 5104C(a)(1) (2021); 38 C.F.R. § 3.2500(a) (2021).

41. U.S. Dep’t of Veterans Affs., Board of Veterans’ Appeals, Appeals Modernization, at slide 6 (2019), https://www.bva.va.gov/docs/Decision_Review_Process_Slides.pdf.

42. 38 C.F.R. § 3.151(c)(2) (2021).

43. 38 U.S.C. § 5104C(a)(2)(B) (2021); 38 C.F.R. § 3.2500(c) (2021).

44. The VA projects higher-level review will take an average of 125 days to complete. U.S. Dep’t of Veterans Affs., supra note 23, at 7. In September 2020, the VA processed and decided 7,885 requests for higher-level review, with an average processing time of 49 days. U.S. Dep’t of Veterans Affs., Veterans Benefits Admin. Repts., Appeals Modernization Act Reporting, September 2020, https://www.benefits.va.gov/REPORTS/ama/ (last visited Apr. 16, 2021) [hereinafter Appeals Modernization Act Reporting].

45. 38 C.F.R. § 3.2601(e) (2021).

46. 38 U.S.C. § 5104B(1)(d)–(e) (2021); 38 C.F.R. § 3.2601(f), (i) (2021).

47. 38 C.F.R. § 3.2601(h) (2021).

48. 38 C.F.R. §§ 3.103(f), 3.2601(k) (2021).

49. 38 C.F.R. § 3.2500(c)(2) (2021).

50. 38 C.F.R. § 3.2501 (2021).

51. 38 C.F.R. § 3.2501(a)(1) (2021).

52. Id.

53. Id. § 3.2501(b).

54. See supra “Legacy System—Duty to Assist.”

55. Cf. 38 U.S.C. § 5103A (2018) (discussing the VA’s duty to assist under the legacy system), with 38 U.S.C. § 5103A (2021) (discussing the VA’s duty to assist under the AMA).

56. Id. § 5103A(e).

57. See infra “Effective Dates.”

58. 38 C.F.R. § 3.2500(c)(1) (2021).

59. 38 U.S.C. § 7105(a) (2021); 38 C.F.R. § 20.201 (2021).

60. 38 U.S.C. § 7113(b) (2021); 38 C.F.R. § 20.302(a) (2021).

61. 38 C.F.R. § 20.702 (2021).

62. 38 U.S.C. § 7113(c) (2021); 38 C.F.R. § 20.303 (2021).

63. 38 U.S.C. § 7113(a) (2021); 38 C.F.R. § 20.301 (2021).

64. U.S. Dep’t. of Veterans Affs., supra note 23, at 7.

65. 38 C.F.R. § 20.202(c)(2) (2021).

66. Id.

67. Id. § 20.300(a).

68. Id. § 3.2501.

69. Id. § 20.700(c).

70. Id. § 3.2500(c)(3).

71. 38 U.S.C. § 7266(a) (2021).

72. Simcox, supra note 4, at 522–23; 38 U.S.C. §§ 7252(a), 7261(a) (2021).

73. U.S. Ct. of Appeals for Veterans Claims, Fiscal Year 2018 Annual Report 1 (2018), http://www.uscourts.cavc.gov/documents/FY2018AnnualReport.pdf.

74. Id. at 4.

75. U.S. Ct. of Appeals for Veterans Claims, Fiscal Year 2020 Annual Report 1, 4 (2020), https://www.uscourts.cavc.gov/documents/FY2020AnnualReport.pdf.

76. While the FY21 report will be helpful to the assessment, it is likely that the FY22 report will be the first report covering an entire FY post-pandemic.

77. U.S. Ct. of Appeals for Veterans Claims, Fiscal Year 2020 Annual Report 7 (2020), https://www.uscourts.cavc.gov/documents/FY2020AnnualReport.pdf.

78. 38 U.S.C. § 7292(c) (2019). After docketing, appeals to the U.S. Court of Appeals for the Federal Circuit from the CAVC took anywhere between six and four months to reach disposition. U.S. Ct. of Appeals for the Fed. Cir., Median Time to Disposition in Cases Terminated After Hearing or Submission 1 (2020), http://www.cafc.uscourts.gov/sites/default/files/the-court/statistics/06_Med_Disp_Time_MERITS_table.pdf. Further review is available at the U.S. Supreme Court. 38 U.S.C. § 7292(c) (2019).

79. 38 C.F.R. § 3.2500(c)(4) (2021).

80. 38 C.F.R. § 3.400(b)(2)(i) (2021). This only applies to those veterans who had a condition in service and file for compensation within one year from their separation date. Id. For all other veterans filing for disability, the effective date will be the date a veteran files an initial application for compensation. 38 U.S.C. § 5110(a)(1) (2019).

81. 38 U.S.C. § 5110(a)(2) (2021).

82. 38 C.F.R. § 3.2500(h)(2) (2021).

83. Id. § 3.2500(e)(1). Withdrawal must be in accordance with 38 C.F.R. § 3.2500(d) (2021) (explaining the withdrawal process for higher-level review requests and supplemental claims) and 38 C.F.R. § 3.205(b) (2021) (outlining the withdrawal process for appeals to the BVA).

84. 38 U.S.C. § 5104C(b) (2021).

85. 38 C.F.R. § 3.2500(e)(2) (2021).

86. Id. § 3.109(b).

87. Morgan v. Principi, 16 Vet. App. 20, 27 (2002) (quoting Corry v. Derwinski, 3 Vet. App. 231, 235 (1992)).

88. Id. (quoting Tulingan v. Brown, 9 Vet. App. 484, 489 (1996) (Farley, J., concurring)).

89. 38 C.F.R. § 3.160(d)(2) (2021).

90. U.S. Dep’t of Veterans Affs., Ctr. for Innovation, Veteran Appeals Experience: Listening to the Voices of Veterans and their Journey in the Appeals System 24 (2016) (“No matter how much they want or how hard they try, Veterans can’t understand the current process beyond the most basic elements.”)

91. Id. at 8 (“Veterans and their families struggle to understand the process or their place in it. They have little understanding of the relationship between steps in the process and sometimes don’t even realize when they’re making a decision—even if it might delay their appeal for years.”).

92. 38 U.S.C. § 5904(c)(1) (2018); 38 C.F.R. § 14.636(c)(1) (2018).

93. 38 U.S.C. § 5904(c)(1) (2021); 38 C.F.R. § 14.636(c)(1)(i) (2021).

94. 38 U.S.C. § 5104 (2021). In the legacy system, a SOC required much of the same information, but the VA did not issue a SOC until after a veteran filed a Notice of Disagreement (NOD). 38 U.S.C. § 7105(d)(1) (2018); 38 C.F.R. § 19.29 (2021).

95. 38 U.S.C. § 5104(b) (2021). Elements necessary to grant service-connected disability compensation include 1) a current diagnosis, 2) an in-service event, injury, or illness, and 3) a nexus between the diagnosis and the in-service event, injury, or diagnosis. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (1996).

96. The VA has a duty to obtain a veteran’s service medical records. 38 U.S.C. § 5103A(c)(1)(A) (2021). The VA will also obtain records held by VA healthcare facilities, as well as records held by a federal department or agency and any private medical records, provided the veteran identifies the records and authorizes the VA to obtain them. Id. § 5103(c)(1)(B)–(C).

97. 38 U.S.C. § 5103A(f)(1) (2021).

98. These areas include: 1) notifying veterans of information required of them (to include medical and lay evidence) to substantiate their claim; 2) assisting veterans in obtaining evidence to substantiate their claim (with some limitations); and 3) providing medical examinations or obtaining medical opinions when necessary to decide a claim. 38 U.S.C. § 5103A (2021).

99. U.S. Dep’t of Veterans Affs., supra note 23, at 12.

100. 38 C.F.R. § 3.2601(j) (2021).

101. U.S. Dep’t of Veterans Affs., supra note 23, at 7.

102. The VA projects a supplemental claim will take an average of 125 days to complete. Id. In September 2020, the VA processed and decided 20,719 supplemental claims, with an average processing time of 91.3 days. Appeals Modernization Act Reporting, supra note 44.

103. The BVA’s published goal for processing an appeal is 365 days, for the direct docket (no hearing or evidence). U.S. Dep’t of Veterans Affs., supra note 23.

104. 38 C.F.R. § 3.2501(c) (2021).

105. There are numerous records that the VA will assist in retrieving under its duty to assist, if a veteran provides enough information in order for the VA to identify and locate the records. 38 U.S.C. § 5103A (2021); 38 C.F.R. § 3.159(c) (2021).

106. 38 U.S.C. § 5103A(c) (2021).

107. In September 2020, the average processing time at the BVA ranged from 224.8 days (direct docket) to 325.9 (hearing docket). Appeals Modernization Act Reporting, supra note 44.

108. Veterans Law Judge Job Announcement, USAJobs, https://www.usajobs.gov/GetJob/PrintPreview/538652200 (last visited June 21, 2021).

109. Id.

110. 38 C.F.R. § 20.301 (2021).

111. See supra note 107 and accompanying text.

112. 38 C.F.R. § 3.2500(c)(2)–(3) (2021). See “Court of Appeals for Veterans Claims” for details on appealing to CAVC following a BVA decision.

113. 38 C.F.R. § 20.300(a) (2021) (emphasis added).

114. Id. § 3.2501.