On February 19th of this year, the Department of Veterans Affairs (VA) implemented the Veterans Appeals Improvement and Modernization Act (AMA), which was passed by Congress in 2017. Over the last year, the VA offered some veterans the option of participating in a pilot program that greatly resembled the new program. Now that the new law has been fully implemented, all appeals resulting from decisions issued on or after February 19th will be processed under the new program.
The new appeals 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 appeals 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 may 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 still take two years or more.