VA Appeals System Reform: Veterans Appeals Improvement and Modernization Act of 2017

If you're a veteran who just filed a disability claim with the VA, there's one thing that isn't exactly a secret: you're going to be waiting a while.

Appeals that make their way up to the Board of Veterans' Appeals ("the Board") take an average of five years from the initial date of filing. The Government Accountability Office recently estimated that the wait will almost double in the next decade without VA reform. At the time of writing this in November 2017, there is a 470,000 claim backlog at the VA. 

Veterans deserve to have their claims for service-connected disabilities handled more efficiently. President Trump recently signed the Veterans Appeals Improvement and Modernization Act ("The Act") into law, a piece of legislation aiming to do just that. But how?

The Act creates three different lanes to handle appeals more efficiently:

1. Local Higher-Level Review

 A veteran can file a written request to have a higher-level official at the Regional Office review his or her claim within one year of an initial decision.  The higher-level official reconsiders the claim based upon the same evidence, so veterans electing this path cannot submit new evidence to support their claim at this time. The standard of review is de novo, meaning that the higher-level official considers the claim anew without giving any weight to the lower-level official's decision. Veterans can also request to have another Regional Office decide the claim, and the VA must grant that request absent a showing a good cause.

2. The New Evidence Lane

The new evidence lane is where veterans can opt to submit "new and relevant evidence" to support a claim and have it readjudicated based upon that evidence and all other evidence of record. Evidence is "new and relevant" if it was not previously considered by the VA and it tends to prove or disprove a matter in issue. The VA refers to appeals with new and relevant evidence as filing a "supplemental claim." The VA has a duty to assist veterans in finding and obtaining records reasonably identified in a supplemental claim, without regard to whether those records are in VA custody. Those seeking to appeal a decision based upon new evidence must file their supplemental claims within one year from the date of the initial decision or within one year of the completion of local higher-level review. 

3. The Board Lane

The third option is to have a claim immediately advanced for consideration by the Board of Veterans' Appeals by filing a notice of disagreement within one year from the date of the initial decision or, if a veteran first elected one (or both) of the first two lanes, within one year of that decision.  By way of example, a veteran might begin with local higher-level review at the Regional Office, receive a denial, and then submit new evidence by filing a supplemental claim. Assuming that the Regional Office continues to deny the claim despite the submission of new evidence, a veteran may then appeal to the Board. However, under § 5104C of the Act, a veteran is locked into a chosen lane until a decision is provided or the request is withdrawn. Additional review at any level takes more time, so carefully determining which route is in a veteran's best interest is critical to achieving timely resolution of a claim.

Whether a veteran is seeking review by the Board immediately following an initial decision or after pursuing lanes 1 and/or 2, he or she must file a notice of disagreement requesting one of three options: (1) a Board hearing with an opportunity to submit new evidence; (2) an opportunity to submit new evidence without a Board hearing, or (3) review by the Board without a hearing or the submission of additional evidence. Veterans who request a Board hearing and want additional evidence considered may submit additional evidence either at or within 90 days of the Board hearing. Veterans who forego a Board hearing but request the consideration of additional evidence may submit additional evidence either with their notice of disagreement or within 90 days of its receipt. Where no request for a hearing or the submission of additional evidence is made, new evidence may not be introduced. 

§ 7107 of the Act also requires the Board to maintain at least two separate dockets. 

In theory, maintaining two separate dockets should speed up the appeals process by separating fully-developed claims (where veterans waive Board hearings and/or the introduction of new evidence) from those requiring further development.  Claims that are ready for a Board decision will not have to wait in line behind claims requiring further development. 

Phased Rollout and Legacy Claims

The Act is supposed to come into effect in roughly 16 months, with an effective date no earlier than February 2019. However, pre-existing claims ("legacy claims") may continue under the old appeals system. Veterans with claims already pending have the option to opt into the new appeals system, suggesting that the current appeals system will operate concurrently with the new one during a phased rollout period. Allowing veterans with legacy claims the flexibility to decide whether to opt into the new appeals system should allow for selecting the most efficient way forward. The Act requires the Secretary of Veterans Affairs to submit a comprehensive plan detailing implementation of the new appeals system and the processing of legacy claims, but that plan has not been released at the time of writing.

Conclusion

Whether VA reform will achieve its intended results remains to be seen. The Act focuses on structural improvements that, at least in my opinion, may greatly improve the appeals process. Some people aren't as optimistic, suggesting that the real problem—the sheer number of errors made by VA reviewing officials—is not addressed by the Act. Time will tell.