New Appeals Process for Veterans Aims to Cut Wait Times
On Feb. 19, the Department of Veterans Affairs (VA) implemented the Veterans Appeals Improvement and Modernization Act (AMA), which was passed by Congress in 2017. The law is designed to reduce the wait time for veterans seeking a decision on their appeal for VA benefits.
March 22, 2019 at 03:01 PM
7 minute read
On Feb. 19, the Department of Veterans Affairs (VA) implemented the Veterans Appeals Improvement and Modernization Act (AMA), which was passed by Congress in 2017. The law is designed to reduce the wait time for veterans seeking a decision on their appeal for VA benefits. By the VA's own admission, veterans wait an average of seven years to receive a decision from the Board of Veterans Appeals (BVA). The BVA provides veterans with their first opportunity to have an appeal decided by a veterans law judge and, for many, the first time they can give live testimony in support of their claim.
At the heart of the AMA are two new options for veterans to choose from when appealing a denied claim. The first option, called the supplemental claim lane, allows veterans to submit new evidence in support of their appeals. If a veteran identifies evidence but is unable to obtain it, the VA will try to obtain the evidence as part of its longstanding duty to assist. Either way, if the VA deems the evidence “relevant,” it will then take a second look at the appeal and make a new decision in an estimated 125 days. The relevance requirement is new to the VA appeals process, and there is concern that it is narrower than VA's previous requirement that evidence submitted under similar circumstances be “material.” Veterans who choose this lane are not entitled to a hearing or phone conference as part of their appeal.
The second lane now available to veterans is called the higher level review lane. In this lane, a more senior VA employee will review the decision for errors of fact or law that may have been made as part of the initial decision. The veteran is entitled to a one-time phone conference, but no new evidence, including testimony from the veteran, may be submitted. In addition, the VA will not assist with the gathering of evidence identified by the veteran, another red flag for VA practitioners. Decisions in this lane are also estimated to average 125 days.
In addition to these lanes, veterans can still appeal their claims to the BVA, which remains the only appellate option wherein a veterans law judge decides the case. Veterans can appeal to the BVA from one of the other two lanes, or directly from the VA's original denial of the claim. Within the BVA, there will now be three separate lanes for processing appeals, whereas before there was only one. The first lane will process appeals for veterans who will not be submitting additional evidence or requesting a hearing. The VA estimates that these appeals will be decided in about a year. The second lane will be for veterans who are submitting evidence but not requesting a hearing, and the third lane will be for veterans who are submitting evidence and requesting a hearing. For both of these lanes, the VA estimates that decisions will take two years or more—a curious estimate given that the new law is designed to reduce BVA wait times significantly.
How well the AMA will succeed in this regard is anyone's guess, but a recent case of mine illustrates how the law may improve wait times for a least some needy veterans. My client was a veteran of Operation Desert Storm in 1991. Veterans of this brief war often feel overlooked, and my client was no exception. Sandwiched between the drawn out war in Vietnam and the more recent wars in Iraq and Afghanistan, it is easy to forget that many of these veterans fought valiantly against Iraqi fighters. Casualties during the war were light, but the scars of seeing dead Iraqi soldiers or hearing SCUD missiles explode nearby don't fade easily. My client suffered from those scars—the nightmares, the exaggerated startle response, the need for isolation— from the day he heard sirens warning of incoming SCUD missiles that he feared were capped with chemical weapons.
The war was short but my client's dealings with the VA were not. He was ashamed of his illness and waited over 20 years before seeking treatment and applying for VA benefits. When he was finally convinced to apply—by his VA psychiatrist no less—in 2013, he assumed the process would be short and painless. He didn't receive a final decision until 2018.
I entered the case in 2017, after meeting the veteran at the Veterans Multi-Service Center in Philadelphia. He had already been denied VA compensation for post-traumatic stress disorder (PTSD) and was waiting to have his case decided by the BVA. The case was already 4 years old by that point and languishing on the BVA's docket. I told the client that there was little we could do but wait for his hearing.
For about a year before the AMA was rolled out, the VA offered veterans a glimpse of the new law by offering them a chance to participate in a pilot program that included many of the AMA's new provisions. Many veterans, including my client, received letters from the VA offering them a spot in the pilot program. These veterans could opt into the program, the letter explained, but once they opted in they would lose their place on the BVA's docket. Since my client had been on the BVA's docket for about four years, this worried me, though I understood why it was so tempting to him. In the end, the lure of a decision in 125 days was too much for my client to pass up. For him, waiting for a BVA hearing was no longer an option.
Between the time I met my client and the time we opted in, I found new documents in support of the appeal. I also briefed his case and submitted it in preparation for our BVA hearing, hoping that his appeal would soon be heard. When we transferred the appeal into the pilot program, we chose the supplemental claim lane, since the higher level review lane does not permit new evidence to be submitted. Then we submitted my brief again and waited.
After about two months, my client received a call that he was being scheduled for a free medical exam at the VA. This is usually a good sign, as it suggests that the VA agrees that a veteran's condition began in the service, and that they now just need to determine the severity of his condition for rating purposes. Within a month of the exam, the veteran received a decision awarding him 70 percent partial disability, which amounts to slightly more than $1,400 per month. He was also awarded a sizable payment for benefits dating to 2013, when he filed the original application.
For my client, the VA's new appeals process was undeniably a success. But I wonder if we just had the right facts at the right time for it to work so perfectly. There are plenty of VA practitioners who are skeptical that the AMA will drastically improve the VA's appeals process. You can count me as one of them. I've heard a lot of promises from the VA over the years, and I can't help but wonder if this one will be any different.
Michael Taub is a supervising attorney at the Homeless Advocacy Project (HAP). He has been representing homeless veterans at HAP for 15 years. He is a graduate of Villanova Law School.
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