New law streamlining VA claim appeals eases some protections
By TOM PHILPOTT | SPECIAL TO STARS AND STRIPES Published: August 31, 2017
Every major veteran service organization except Vietnam Veterans of America (VVA) supported legislation, signed into law last week, to reform a woefully clogged process for deciding appeals of veterans’ disability claims.
Even VVA concedes the new “three-lane” option for appealing claims, when implemented via regulation a year or more from now, will produce speedier appeal decisions and begin to reverse what continues to be a steadily rising backlog of appeals, soon to surpass a stunning 500,000.
Every veteran appealing a claim knows something is wrong with a system that, on average, takes three years to get a final decision. The Department of Veterans Affairs says some veterans are waiting six years or more.
In May 2016, with Congress unable to agree on reforms and the backlog rising, then-VA Deputy Secretary Sloan Gibson created a work group of senior VA officials, veterans organization representatives, Board of Appeals experts and, months later, key legislative staff. It was the backlog that made compromise possible. Veterans groups agreed to ease certain protections to address it.
“The question became: How can we improve the process to make it more efficient and still strike the right balance of preserving those protections for the veteran,” said a House staff member involved in the negotiations. “There was momentum to do something.”
VA officials had complained for years that the big drag on timely appeals was that case records never closed. Veterans could claim new evidence at any time, and VA had a “duty to assist” in compiling that evidence, seeking more files from government agencies or private physicians and hospitals while appeals stalled.
During negotiations, said the House staffer, VA “came out with a very revolutionary olive branch: If we allow the effective date [of the claim] to be preserved, as long as something is submitted within the one year following the decision point, where can we … ease some of the duty-to-assist protections?”
Rick Weidman, VVA’s executive director for policy and government affairs, was part of the work group. Weidman said he’s all but certain VA officials had their proposal drafted weeks before the group was even formed.
The product of that group became the Veterans Appeals Improvement and Modernization Act, signed Aug. 23. Supporters say it gives veterans options for appeal better suited to individual circumstances. When a claim is denied, or a disability rating award disappoints, they will have three options to appeal.
Lane one is Local Higher-Level of Review. Veterans can request that a more experienced claims adjudicator review the same evidence considered by the original claims processor. The idea is to ensure that it was properly decided.
A second choice, the New Evidence lane, allows a veteran who has new evidence to support the claim to ask the Veterans Benefits Administration to reconsider the merits of the original claim based on that new information.
The third lane is a formal appeals process where jurisdiction for review transfers to the Board of Veterans Appeals. The veteran at this stage also can seek a hearing before a judge to review the case and that could include new evidence.
VVA alone argues that the new three-lane option for appeals will solve the backlog at too great a price for veterans, weakening individual protections including duty-to-assist obligations of the VA during claim appeals.
Disabled American Veterans, which joined with the American Legion, Veterans of Foreign Wars and other veterans advocacy groups in supporting the new law, contends key protections weren’t sacrificed for expediency. The new process, DAV argues, shifts but still preserves due process for individuals.
“Due process now is that veterans can continue to submit additional evidence at any time,” said Garry Augustine, executive director of DAV. The new law “does limit the times that you can submit additional evidence, but it doesn’t cut it out. And it does protect the effective date of the claim if it’s granted.”
Augustine said the duty-to-assist obligation on VA won’t apply during initial lanes of appeal but will be there when a veteran can file an appeal within a year based on new evidence, and also during the formal appeal lane if a hearing before a judge is requested rather than a Board of Appeals review.
VA, he said, “wanted to have the opportunity in an appeal to make a final decision based on the evidence of record, without having to develop new evidence all the time. We agreed to that only if they allowed the one-year opportunity after a decision to go back to the [new evidence] lane if [the appeal] wasn’t granted.”
One key provision of the new law mandates that VA improve original claim decision notices so they more clearly inform veterans of the reasoning behind VA decisions. This should help veterans determine whether to file an appeal and the best lane for them. It also should reduce unnecessary appeals, advocates contend.
Also, by late November, VA must deliver a comprehensive plan to the House and Senate Veterans’ Affairs committees on which veterans with current appeals pending will be allowed to shift from the old system into one of the new lanes.
For veterans dissatisfied with original claim decisions, they begin their appeal by filing a Notice of Disagreement. VA’s response to that notice is called the Statement of the Case (SOC). Veterans can file additional evidence following receipt of SOC, and VA issues a Supplemental Statement of the Case (SSOC).
Receipt of the SOC or SSOC is expected to be the trigger points for allowing veterans with pending appeals to switch into the new process. That’s the tentative deal VA had reached with veterans’ groups and Congress. Whether individuals with pending appeals decide to shift to the new system will be based on personal circumstance.
Roughly 150,000 current appeals are pending before the Board for Veterans Appeals, or the Court of Appeals for Veterans Claims. Those are seen as too far along to allow transfer to the new process when the process starts operating.
Weidman of VVA said his organization’s priorities for reforming the appeals process largely were ignored. They included allowing claim court decisions, board decisions and even key VA rating decisions to have the standing of legal precedence so favorable decisions might be applied to future claims, ensuring speed and uniformity of decisions and appeals across VA regions.
VVA also pressed to increase significantly the number and quality of claim adjudicators so original decisions have fewer errors to spark appeals.
“What VA wanted in the beginning was worse than what we got,” Weidman acknowledged. But the new law “is solving VA’s problem, not solving the veteran’s problems. … If you ask a veteran, ‘Would you rather have a fast decision or would you rather have what you regard as a just decision,’ they’ll say the just decision virtually every time.”
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