The Veterans Appeals Improvement and Modernization Act of 2017, known as AMA, was fully implemented on February 19, 2019, and it provides three new options for review for veterans who have received unfavorable rating decisions on the claims for compensation and pension.
Prior to the AMA, the system of appealing VA Rating Decisions was quite different. That system, now known as the “legacy” system, underwent a number of changes over the years. In its most recent form, if you were unhappy with a Rating Decision, you had one year to appeal. You appealed by filing a “Notice of Disagreement,” or NOD. You could choose to have your file reviewed by a “Decision Review Officer” or send it directly to the Board of Veterans Appeals (BVA), where you could elect to have a hearing before a Veterans Law Judge.
After you filed your NOD, you would eventually receive a “Statement of the Case.” You had 60 days from the date of the Statement of the Case to file a VA Form 9. If you submitted new evidence, the VA might review it (unless you waived the review) and would get a “Supplemental Statement of the Case.” At some point after filing VA Form 9, the VA would send you a Form 8, and your case would head off to the BVA. If the BVA remanded your case back to the Regional Office, the VA would continue to develop your case and eventually file a “Supplemental Statement of the Case” if they did not grant your issue, at which point your case would head back up to the BVA.
If you received an opinion from the BVA that you did not agree with, you could appeal it to the Court of Appeals for Veterans Claims, or CAVC.
There were many problems of the “Legacy” system, including how imprecise it could be. If a veteran wanted to file a simple appeal about the effective date of a claim, they still had to wait, potentially years, for it to be resolved, because the Legacy DRO process was incredibly slow. Also, there were multiple deadlines to keep track of: One year for the NOD, 60 days after the SOC for the Form 9, 30 days after the SSOC, etc. Also, you could submit new and material evidence at any point. It could get very complicated.
What Changed with the AMA?
Basically, everything before the appeal to the Court of Appeals for Veterans Claims.
Although the AMA system is simpler, there are still numerous strategies and factors to consider. Picking the right one is not easy.
The new options are called “lanes” in VA-lingo. They are Higher-Level Review Lane, Supplemental Claim Lane, and Appeal Lane for the Board of Appeals. The goal of the AMA, by means of providing these options for appeal, is to ensure that veterans receive the earliest effective date possible, and to provide earlier claim resolution. A breakdown of the appeal options follows:
Option 1: Higher-level Review
The veteran’s claim is reviewed by a more senior claims adjudicator (also known as a Decision Review Officer, or “DRO”) and involves:
- A higher-level de novo review (new look) of the decision
- No submission of new evidence allowed
- The possibility of overturning the decision based on:
- A difference of opinion
- A clear and unmistakable error
The veteran, or their representative, can request an informal phone call to identify specific issues. If the DRO identifies or learns of a duty to assist error, they can return the claim to the regional office for correction. They can also reevaluate the evidence entirely. Typically, this results in a Rating Decision getting issued as the Higher-Level Review gets closed out, and the file returned for more development. If the DRO does not find a Duty to Assist Error or does not otherwise decide your claim favorably, you will get a Rating Decision stating just that.
In other words, “winning” a Higher-Level Review may often lead to more than one Rating Decision; the first telling you that you “won” the Higher-Level Review, and another telling you what the VA found after the VA did more development.
To request a higher-level review, submit VA Form 20-0996.
Option 2: A Supplemental Claim Lane
The veteran can submit or identify new and relevant evidence to support their claim. VA will provide assistance in developing the evidence.
To submit a supplemental claim, submit VA Form 20-0995.
Option 3: Appeal Lane for Appeals to the Board
This option allows the veteran to appeal directly to the Board of Veterans’ Appeals. They can choose between three options:
- Direct review: The vet has no new evidence and does not want a hearing.
- Evidence submission: The vet has new evidence but does not want a hearing.
- Hearing: The vet has new evidence and wants to testify before a Veterans Law Judge.
To appeal to the Board of Appeals, submit VA Form 10182.
Unlimited Appeals? Yes and No.
If you appeal using the Supplemental Claim or Higher-Level Review option, you will eventually get another Rating Decision.
If you are unsatisfied with that Rating Decision, you can file another Supplemental Claim or Higher-Level Review, however, you cannot appeal a Higher-Level Review with a Higher-Level Review. That said, if the Higher-Level Review closes out because a Duty-to-Assist Error was found, and the case is further developed, you can file a Higher-Level Review appealing that second Rating Decision.
You can also appeal a BVA Decision using a Supplemental Claim if you have new evidence, but you cannot use the Higher-Level Review.
Is the AMA better than the Legacy Process?
This is the subject of a lot of debate in the community of VA Benefits professionals. Some will argue that the Duty to Assist has been eroded, and claims are not as well developed. At the same time, our firm has seen appeals times speed up for appeals at the regional office level before heading to the BVA. For instance, it was not uncommon to see a Legacy Appeal with a DRO Option take over two years from the time the NOD was filed to the time the SOC was issued. A Higher-Level Review or Supplemental Claim, on the other hand, only tend to take three to six months, sometimes less.
Experienced Attorney, Andrew P. Gross, is Here to Help
The determination of which option is best for you may be difficult. Contact a seasoned veterans advocacy lawyer at the Law Office of Andrew P. Gross for professional assistance.