The current VA appeals process is based on a non-linear, outdated model from 1933. This model has created approximately a 470,000 appeal backlog over the past two years. In 2016, veterans waited on average of six years to receive their appeals decisions. The current VA appeals process can be complicated and difficult to understand. On August 23, 2017, President Trump signed into law the Veterans Appeals Improvement and Modernization Act. Although the Act passed into law, please note that it does not go into effect until about February of 2019. The new act is meant to simplify and streamline the current process by utilizing a three-track approach. Under this model, Veterans would be able to choose the one appeal track that best fits their disagreement with their decision. Below is a summary of the three tracks and the differences between them. Since the new appeal form is still developing, this article is meant to give you a general overview of what is to come. Once the Act is in effect, we will know more about how the new process is actually implemented.
Higher Level Review (HLR) Track:
This track is similar to the Decision Review Office process under the current system. Under this track, a senior claims examiner would review the decision for error. A request for HLR must be made within one year of the VA’s decision. If you choose the HLR track, no new evidence can be submitted. The higher-level adjudicator is limited to the evidence in the record at the time the Regional Office decided the claim. The Veteran can also request that an adjudicator from a different Regional Office than the one which issued the decision conducts the HLR.
Supplemental Claim Track:
The Supplemental Claim track allows you to develop the claim by submitting new and relevant evidence. If you submit the Supplemental Claim within one year of the VA Rating Decision denial, the date of the original claim will be the effective date. The effective date is the day which the Veteran will receive back payment.
Appeal to the Board of Veterans’ Appeals:
This track moves the case directly to the Board of Veterans’ Appeals (BVA) in Washington D.C. The BVA is a group of Veteran Law Judges versed in VA law. To choose this track, you must file a Notice of Disagreement directly to the BVA within one year of the Rating Decision. This process is different than the current system, where you file the Notice of Disagreement with the Regional Office and VA Form 9 with the BVA. VA Form 9 and the Statement of the Case will not be part of the new appeals process. Another change is the Notice of Disagreement must now identify the specific error which the Veteran believes the VA made in deciding your claim. If the BVA does not think you were specific enough in identifying the error, the BVA has the option of dismissing the appeal.
If you choose to appeal to the BVA, you will have three additional options regarding requesting hearings and submitting evidence:
- No Hearing and No New Evidence: The evidence is limited to the to the evidence in the record at the time the Regional Office decided the claim. You would choose this option if you believe all the evidence has been submitted to prove your claim, but you believe the VA made an error in interpreting the law.
- New Evidence but No Hearing: If personal testimony is not important to your case, then you probably do not need a hearing. However, you can submit additional evidence with the Notice of Disagreement and within 90 days of the BVA receiving the notice of disagreement.
- Request a Hearing and Submit New Evidence: If you choose this option, you can submit new evidence at the hearing, or up to 90 days after, but not before the hearing.
What to Expect.
The new VA appeals process is meant to reduce the amount of time Veterans wait for their appeal to be resolved. Supposedly, it will take no more than one year for an initial decision, and not more than 120 days for Supplemental Claim and Higher Level Review tracks. The VA is expected to roll out a Pilot Program to give us a preview of how the process will be implemented and the actual wait times.
Edward M. Farmer is a U.S. Army veteran and attorney. A majority of his career has been dedicated to assisting veterans. More information regarding Edward and his law firm can be found at www.vetlawoffice.com
The material and information contained on these pages and on any pages linked from these pages are intended to provide general information only and not legal advice. You should consult with an attorney licensed to practice in your jurisdiction before relying upon any of the information presented here.