The Veterans Appeals Modernization Act of 2017 became law in August 2017 and applies to all VA disability decisions received after February 19, 2019. The purpose of this act was to streamline the VA appeals process by providing alternatives for having a VA decision reviewed.
The goal of the administration was that by allowing veterans to select how their cases would be reviewed, resolution of cases could be accelerated from its traditionally years-long process. This Veterans Appeals Improvement and Modernization Act summary discusses the new VA appeals modernization forms and the online portal for veterans to check appeals, including VA RAMP status.
It is the same whether you do all of the paperwork and footwork yourself, or if you ask a Certified VA Disability Lawyer to do the work for you.
In This Article About the Appeals Modernization Act:
- Veterans Appeals Improvement and Modernization Act Review Options
- New Review Options
- Veterans Appeals Improvement and Modernization Act New Dockets
- Be Prepared for the Veterans Appeals Improvement and Modernization Act
VA disability lawyer Sarah Woods explains the AMA:
Veterans Appeals Improvement and Modernization Act Review Options
In addition to a few vets that got into the RAMP Pilot program prior to the Modernization Act, the only option for review of a decision from the Department of Veterans Affairs was an appeal to the Board of Veterans Appeals (BVA). More specifically, you can obtain a review of the VA’s decision by filing a Notice of Disagreement (NOD) with the VA office that handled your case. You can submit additional evidence with the NOD.
The Veterans Benefits Administration (VBA) reviewed the NOD and any additional evidence and prepared a Statement of the Case explaining its reasoning for the decision on your claim. If you disagree with the Statement of the Case (SOC), you should reply with a notice that you are appealing to the BVA. (We will help you fill this out, or you can download VA Form 9 here and do it yourself.) If you submit new evidence or raise new issues after the original Statement of the Case, the VBA may issue a Supplemental Statement of the Case (SSOC).
At this point, your case will be submitted to the BVA. Under the old process, the BVA typically took five to seven years to decide appeals.
This process applies to all decisions issued before February 19, 2019. Many current cases fall within the old legacy system. However, the VA allows applicants to opt-in to the new appeals process by filing one of the new VA appeals modernization forms after receiving an SOC or SSOC.
For example, a decision that was rendered in late 2017 would have until late 2018 to file the NOD. Once the VBA receives your NOD, they could take up to 18 months to mail the SOC. In this example, you may have just received the SOC for the case originally decided in 2017 and would now be in a procedural position to opt into the new review process provided under the Modernization Act.
New Review Options
Under the Modernization Act, you have two new review options where the appeal process is altered. Regardless of the option you choose, you will retain your effective date for benefits as long as you meet all filing deadlines. For example, if you file a claim in November 2019, receive an adverse decision and request review in March 2020, and finally receive a positive decision in December 2020, the effective date of your benefits will still be November 2019.
1. Higher-Level Review
A higher-level review is a request for a different, more experienced adjudicator in the VBA to take a new look at your claim. This is equivalent to asking to speak to a manager at a restaurant when you are not happy with the service. You are not necessarily asking for someone at a different organization, such as a court, to handle your case. Rather, you are asking for someone different at the same organization to review your case. You can start your application process by filing a form 20-996 requesting a higher-level review. We can help you fill it out or do it with you.
It is critically important to remember that you are not allowed to submit new evidence for a higher-level review. That is, the higher-level review is limited to the evidence and claim application as they were originally reviewed. If the first adjudicator found the claim application or evidence lacking in any way, you would not be allowed to supplement the record if you choose a higher-level review.
Thus, a higher-level review might typically be used for cases where you believe the evidence is sufficient, but the initial adjudicator misunderstood the evidence, misinterpreted your claim, or misapplied the regulations in view of your evidence. Because this amounts to a request for a second look at the same case file, the VBA has an announced goal of deciding higher-level reviews within 125 days after a request is filed.
The speed of deciding on higher-level reviews is a significant benefit, as long as you believe your case file contains all the evidence necessary to support your claim. Moreover, filing a request for higher-level review allows you to request an informal telephone conference with the second, higher ranking adjudicator to explain where you believe the flaws in the original decision might lie.
If you disagree with a higher-level review, you have the option to file a supplemental review or appeal to the VBA.
When you have Woods and Woods work on your claim, we review your case history to choose the best line of attack for your appeal or application. We can start from scratch with the Regional Office (RO) or some of the work you’ve already done with a VSO. We can even go directly to the BVA if that looks like it will bring about the best outcome. We don’t want to waste your time on an already long process. Contact us today to get your claim questions answered for free.
2. Supplemental Claim
A supplemental claim is a request for review at the agency level based on newly submitted evidence. That is, a supplemental claim must be accompanied by evidence that was not before the adjudicator who initially reviewed the claim. The new evidence does not necessarily need to be newly developed, that is, evidence of new facts that came to light since you originally filed the disability claim. Rather, the new evidence needs to only be newly presented, meaning that it was not submitted with the original claim. Thus, the new evidence can support new facts not alleged in the original claim or support facts originally alleged in the original claim.
In this video, one of our certified VA disability lawyers discusses how supplemental claims are used in VA disability appeals:
For example, if your disability claim relates to a chronic illness, your new evidence could consist of a buddy statement from another guy you re-connected with since you originally applied. If it is 1.) new and 2.) relevant to the case, this would tend to support a claim that your illness is service-related. Even though they may be several years old, they still support a fact alleged in the original disability claim.
Alternatively, your new evidence could consist of a new MRI showing that your chronic illness has caused lung problems. This would be new evidence that you might use to support a claim that your original claim rating is too low and should be increased.
Thus, a supplemental claim would be appropriate where the original claim was rejected for lack of evidence or if you believe there is additional evidence that would support a different outcome. In either case, the supplemental claim is reviewed at the agency level rather than through an appeal board. For this reason, the BVA has a 125-day goal for deciding supplemental claims.
Like a higher-level review, the appeal of a supplemental claim is its quick turnaround. If you are unhappy with the decision on a supplemental claim, you can file an additional supplemental claim with more new evidence, request a higher-level review, or appeal to the BVA.
3. Appeal to the BVA
Similar to the old process, you can appeal any decision to the BVA for review by a Veterans Law Judge. However, the appeal process has changed in a few respects.
First, you do not need to submit the NOD to the local VA office and wait for a SOC before filing an appeal notice. The NOC and appeal notice have been collapsed into a single form, skipping the 12 to 18 months that were formerly spent waiting for an SOC. This alone should streamline the process for appellate review.
Second, the modernization act has created three dockets for the BVA. This allows certain cases to be decided quicker than in other cases. The time to receive an appellate decision depends on the type of review requested. The amount of time it takes to decide appeals to the BVA has been estimated at 365 days for direct review, but evidence submission is estimated to be longer. The VA application process takes more than 365 days for those requesting a hearing. While this may seem like a long wait for a decision, this is much shorter than the five to seven years under the old system.
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Veterans Appeals Improvement and Modernization Act New Dockets
As more cases are resolved at the VBA through agency review, fewer appeals should reach the BVA. In addition to creating the two new review options at the agency level, the third option – appeal – is also streamlined for certain types of appeals. Three dockets were created to allow certain cases, particularly those cases where a hearing is not requested, to be decided quickly based on the case file.
1. Direct Review
A direct review is similar to a higher-level review. In direct review, no additional evidence is submitted with the appeal notice. However, unlike a higher-level review, direct review by the BVA is decided by a Veterans Law Judge rather than a VBA adjudicator.
Another limitation of direct review is that the judge will not hold a hearing. Rather, the appeal is decided on the case file. Therefore, you will not testify and your VA attorney, if you choose to use one, will not present oral arguments in support of your claim.
A direct review would be appropriate for a case where you do not need to submit new evidence and your case presents no novel questions of law that might justify a hearing. In other words, your case file is complete, your claim is a claim for an ordinary disability, and you merely disagree with the decision rendered by the adjudicators at the VBA. For example, if the adjudicator sets a disability rating that is lower than your evidence would support, you could appeal for direct review to have a different disability rating set.
Currently, this is estimated to be the quickest route for a VA disability decision by the BVA in the 2020 system.
2. Evidence Submission
Evidence submission is similar to a supplemental claim. For evidence submission, you are allowed to submit new evidence with your appeal notice. Again, the difference between evidence submission and a supplemental claim is that the case file, including the new proof, is reviewed by a Veterans Law Judge when you file an evidence submission appeal.
In an evidence submission appeal, the judge will not schedule a hearing. The result is the appeal should be decided on the written evidence in the case file, including the new evidence submitted with the appeal notice, within one year, according to the BVA.
Evidence submission is appropriate for cases where the adjudicators indicate that the proof in the claim is lacking, or where you have evidence that you believe could lead a judge to reverse the adjudicator’s decision.
3. Hearing with an Option to Submit Evidence
The third docket is a request for a hearing. Because the number of judges is limited, a request for a hearing will effectively shut down your appeal for years to come. However, a hearing request can include new evidence, so it is more similar to evidence submission than a direct review.
A hearing may be justified if you believe that your case presents a novel question of law that you want to address, either directly or through a VA attorney. Alternatively, you may request a hearing if you believe your case would benefit from the presentation of your testimony about the case. However, you should keep in mind that a hearing will result in a slower track to decision. The BVA has not estimated a time to schedule a hearing or decide on appeals, except to say that they will take longer than a year.
In this video, on of our VA certified appeals lawyers talks about the choices you have when you appeal to the VA and file a Notice of Disagreement:
Download Slides on the VA Review Process Here:
Download the VA factsheet on Appeals Here:
Be Prepared for the Veterans Appeals Improvement and Modernization Act
The Modernization Act rewards service members with faster decision times if they do all their homework upfront. A claim that is complete and supported by evidence is eligible for higher-level review at the agency level and direct review on appeal to the BVA. This could represent a very quick resolution of a VA disability claim compared to the years that it could have taken for resolution under the old system. Emphasis on filing a fully formed and fully supported claim may give many service members a reason to hire a VA lawyer to prepare the initial claim paperwork.
Moreover, the Modernization Act clarifies the procedures for submitting new evidence and fast-tracks those claims as well. Thus, rather than starting from scratch or appealing to the board to submit new evidence, the review process allows an agency-level review using the existing case file supplemented with new evidence.
Finally, the modernization act relieves the pressure on the BVA. By providing additional review options at the agency level, the hope is that appeals will be reserved for cases that either present a novel legal question or contain a genuine error in law or fact. Sorting the BVA’s appeals into three separate dockets will allow the BVA to prioritize cases that can be reviewed quickly, with only those where a hearing is requested being sent to a slower docket.
When you have received a decision by the BVA that you believe to be incorrect, the VA Appeals Improvement and Modernization Act provides many new options for review both at the agency level and the appeals level. If you need assistance sorting out the options and tradeoffs associated with each track, call Woods and Woods Veterans Disability Lawyers and we can answer your questions for free.
No, you don’t want to appeal like that. You’ll have to show that you have new and relevant evidence in your appeal. Make sure you know what you are doing before you appeal your claim.
We never deal with the Regional Office because the BVA can override any of their decisions. You’ll want to appeal directly to Washington D.C. instead of wasting time in your Regional Office.
That may be true, but if we look through your file together, we might be able to find some new laws or conditions that qualify as new evidence. We might even find a mistake in your claim, which would move your back pay date way back.