VA Appeals Reform

In August 2017, the President signed the Veterans Appeals Improvement and Modernization Act of 2017 into law, establishing a new decision review process for VA claims. With the goal of improving VA decision-making timeliness, the Act is designed to streamline the appeals process by giving veterans and their representatives more options when appealing an unfavorable decision.

The reform was implemented by the VA earlier this month (February 2019). Now, veterans who receive an initial claim decision that they disagree will have three options when filing an appeal:

1. File a Supplemental Claim

2. Request Higher-Level Review

3. Appeal to the Board of Veterans’ Appeals

The best option for any particular veteran will depend on the unique circumstances of that individual’s case.

Filing a Supplemental Claim

Generally, filing a supplemental claim is appropriate where a veteran has additional evidence to submit that is new and relevant to support a claim. Unlike the other review options, the VA has a duty to assist veterans in gathering new and relevant evidence to support their claims. The VA will then review any new and relevant evidence submitted and render a new decision on the claim.

It is also important to note that veterans who receive an unfavorable higher-level review decision are able to switch tracks and file a supplemental claim with new and relevant evidence, thereby keeping a claim alive and preserving a veteran’s effective date.

Requesting Higher-Level Review

The second option available to veterans is to request higher-level review. A higher-level review consists of a de novo (entirely new) review of your claim by a more experienced VA claims adjudicator.

Because the VA will not assist a veteran in gathering new evidence under higher-level review, this option is generally best where a veteran has no new evidence to submit in support of a claim, but has identified an error in the initial VA decision. That said, if the higher-level reviewer discovers that the VA violated its duty to assist in the prior decision, the higher-level reviewer will return the claim for correction.

The higher-level review option is also distinguishable from the supplemental claim lane because veterans may elect a phone conference with the higher-level reviewer to specifically point out errors in the case, including misapplication of the law or documents in the record that were ignored by the prior decisionmaker.

Appealing to the Board of Veterans’ Appeals

If a veteran chooses to appeal to the Board of Veterans’ Appeals, (s)he will also need to select one of three options for review by the Board of Veterans’ Appeals

1. Direct Review. This option is appropriate where a veteran does not want want to submit any additional evidence or request a hearing. The Board of Veterans’ Appeals will only look at the evidence that was in the veteran’s file when the decision being appealed was issued.

2. Evidence Submission. This option is ideal for veterans who want to submit additional evidence without having a hearing before the Board of Veterans’ Appeals. New evidence can be submitted with the Notice of Disagreement (NOD) and within 90 days thereafter.

3. Requesting a Board of Veterans’ Appeals Hearing. This option provides the most room for claim development, allowing veterans to submit additional evidence and have a hearing with the Board of Veterans’ Appeals. Veterans who request a hearing will be able to submit evidence at the hearing or within the 90-day window following the hearing.