Effective February 19, 2019, the VA instituted a new claims process under the Appeals Modernization Act. The new process, which we will refer to as the AMA Process for clarity, provides multiple lanes for an appeal. These lanes differ depending on a variety of factors, such as whether the Veteran wants to submit new evidence or whether the Veteran wants a hearing. However, the claims being processed under the old system did not automatically jump into the AMA Process when it came into being. Instead, those claims stayed in the old (Legacy) system, now referred to as legacy appeals.
With each Statement of the Case or Supplemental Statement of the Case, Veterans have the option to opt into the AMA Process. However, not all Veterans may yet understand the difference between the two processes. While there is a lot of information out there about the AMA Process, many Veterans may not fully understand how legacy appeals differ from an appeal with the AMA, and they might now be confused about how the AMA has changed things. To help Veterans make an informed decision about which process to choose, we will outline the legacy appeals here.
Under the Legacy Process, claims were filed using VA Form 21-526b or 21-526EZ. If those forms were filed before February 19, 2019, the claim would be processed under the Legacy Process and the VA should issue a Rating Decision which provides a summary of the decision on each claim. Most claims will be either granted or denied. Granted claims are provided a percentage rating and an effective date.
The original decision-making part of the Legacy Process is very similar to the decision provided under the AMA. However, when a Veteran is not satisfied with his or her decision and appeals it, that’s where things become vastly different between the two systems.
When appealing a Legacy decision, the Veteran needs to submit a 21-0958 Notice of Disagreement within a year of the cover letter date on the decision (which is almost always later than the date of the decision itself). The form allows the Veteran to specify what they want to appeal about each claim. In other words, if the VA denied a claim for service connection, the Veteran would appeal for service connection using the corresponding check box. If the VA granted the claim but provided an erroneously low percentage rating, the Veteran should check that they wish to appeal as to the evaluation. The Notice of Disagreement also allows for pages to be attached so that the Veteran may submit additional arguments which might not fit in the limited space provided on the form.
By contrast, under the AMA, a Veteran must choose one of three options for appealing each claim. They might may appeal through:
A Veteran may wish to submit additional evidence using a Supplemental Claim or have the decision reevaluated under a Higher-Level Review. The Veteran might wish to forego further evaluation by the Regional Office and go directly to the Board. Each of these options has different pros and cons to weigh and consider, but the AMA clearly provides more choice than the Legacy Process.
Once the Veteran has filed their appeal, the wait under the Legacy Process begins. It can take many months to receive a response to a Notice of Disagreement, which comes in the form of another, more detailed decision called a Statement of the Case. The Statement of the Case contains far more recitation of rules and laws than a Rating Decision and usually a better explanation of the decision made. If the claims remain unsatisfactory, the Veteran will need to continue the appeal by filing a VA Form 9 within 60 days of the date of the Statement of the Case to appeal the claims to the Board of Veterans’ Appeals.
This stage ought to be where Veterans stop and think, as well as have a discussion with their representative about whether they wish to proceed in the Legacy Process or change to AMA. All Legacy Statements of the Case should now be sent with an AMA opt-in, providing the Veteran an opportunity to take their claims out of the Legacy process and change to AMA. The option to switch processes becomes particularly relevant when looking at a Statement of the Case because a Veteran may not submit any more evidence once they receive a Board decision denying their claim. The Veteran may appeal to the Court of Appeals for Veterans’ Claims on the evidence already submitted, but their ability to submit evidence for review is foreclosed unless the claims are remanded. By contrast, under AMA if the Board denies a claim, the Veteran has one year to submit new evidence with a Supplemental Claim and preserve their effective date.
If the Veteran decides it is in his or her best interest to proceed under the Legacy Process and file a VA Form 9, the claim will be put on the Board’s docket to wait for review by a Veteran Law Judge. It can take a long time to get a Board Decision, but they are usually very detailed and thorough with plenty of explanation for why each claim was granted, denied, or remanded. If the Board remands the claims, it means the claims need to be returned to the Regional Office for more development. If a claim is granted, it will also be returned to the Regional Office for “implementation” (i.e., the Regional Office will send a Rating Decision that says the same thing the Board said in their decision and release any retroactive pay).
If a claim is denied by the Board, the Veteran will have 120 days to appeal to the Court of Appeals for Veterans’ Claims. At the CAVC, the consideration is whether the Board messed up, which is why we previously noted that evidence may not be submitted after a Board denial. The Court does not decide claims–it decides whether the Board adequately considered those claims under the law, therefore the Court need only look at the information afforded to the Board.
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