In 2022, the Veteran Benefits Administration (“VBA”) paid $120.7 billion to 5.9 million people in compensation benefits.[i] The U.S. first began providing benefits to veterans of foreign and domestic wars during the revolutionary war.[ii] The system today looks much different than it did in 1776. Recent changes to the VBA compensation system overhauled the way the VA awards benefits to veterans. This article will discuss the changes in the new legislation and practical tips for pursuing claims in the new system.
The VBA provides two types of monetary monthly benefits to Veterans:
Both types of benefits are only awarded to “veterans” and/or dependents or survivors of “veterans.” The VA defines “veteran” as “a person who served in the active military, naval, air, or space service, and who was discharged or released therefrom under conditions other than dishonorable.”[iii] This article focuses on the process for obtaining VBA compensation benefits.
The VBA awards monthly compensation to veterans for their service-connected disabilities. The three elements for service connection are:
After the claimant establishes all three elements, the VA grants service connection and assigns a percentage of disability for each condition the correlates with the claimants’ monthly benefits.
The VBA also assigns an effective date for the disability compensation to begin. With some notable exceptions, the effective date of any award for VBA compensation is the date of the filing of the initial application for benefit or the date “entitlement arose” whichever is later.[v] From the effective date forward, the VA owes monthly compensation to the claimant.
VBA claims have a “unique” standard of proof in which the benefit of the doubt goes to the Veteran.[vi] Under this standard, “any issue material to the resolution of the claim goes to the veteran if the evidence is in equipoise, and the resolution of the burden of nonpersuasion is with the VA.”[vii] “This ‘unique’ standard of proof is lower than any other in contemporary American jurisprudence and reflects ‘the high esteem in which our nation holds those who have served in the Armed Services.’”[viii]
The VBA is also required to assist claimants by notifying them of the information needed to prove their claim and assisting them in obtaining that information.[ix] This duty to assist includes gathering pertinent medical information, gathering personnel records, and providing examinations including soliciting medical opinions about the severity and cause of a veteran’s condition.[x]
There are two official levels for VA adjudication of claims:
Claimants may appeal to the Board if they are dissatisfied with the RO’s decision. It is the RO’s responsibility to develop the claim for consideration including gathering records and commissioning examinations for the veteran. After the RO gathers the evidence, it issues a Rating Decision either denying the claim or granting the claim with a rating and effective date. The Rating Decision must be sent to the claimant and any representative.[xii] If the claimant disagrees with the RO’s decision, they may appeal. The process for appealing is discussed in more detail later in this article. One way to appeal is to appeal to the Board.
The Board is independent from the VA. The head of the Board is the Chairman—a presidential appointee subject to Senate confirmation.[xiii] Veterans Law Judges (VLJs) or “Board Members” decide the issues.[xiv] VLJs obtain their position by Board Chairman recommendation, Secretary of Veteran Affairs appointment, and approved by the president.[xv] All VLJs must be attorneys.[xvi]
If a claimant disagrees with a Board decision and wishes to appeal, the claimant may file an appeal to the U.S. Court of Appeals for Veteran Claims (“CAVC”).[xvii] CAVC decisions may be appealed to the Federal Circuit Court. Decisions from the Federal Circuit Court can be appealed to the Supreme Court of the United States.
Prior to February 19, 2019, and the passage of the Appeals Modernization Act (“AMA”), a claimant’s only option to pursue their claims was through the Legacy System (“Legacy”).[xviii] In Legacy, a claimant proceeds linearly through the appeals process—having only one option to appeal or “disagree” with each decision.
To appeal a Rating Decision, a claimant files Notice of Disagreement (“NOD”) within one year of receiving notice of the decision.[xix] After the VBA receives an NOD, it provides a Statement of the Case (“SOC”) decision. If the claimant disagrees with all or part of the SOC, within 60 days, an appeal must be perfected to the Board using a VA Form 9.[xx]
In perfecting the appeal to the Board, a claimant can request a hearing with a VLJ. If a claimant chooses not to submit any additional evidence with the appeal, the appeal is transferred to the Board and awaits disposition by a VLJ. If the claimant submits new evidence, the appeal returns to the RO for a review and issuance of a Supplemental Statement of the Case (“SSOC”).
The Board is required to review all the evidence of record at the time of its decision.[xxi] The Board must provide an adequate statement of reasons and basis for each finding of fact and conclusion of law.[xxii] In that statement the VA must “identify those findings it deems crucial to its decision and account for the evidence which it finds to be persuasive or unpersuasive.”[xxiii]
The Board can grant and deny claims, and it can also remand claims back to the RO for additional development. If the Board remands a claim, it provides instructions to the RO. A remand by the Board confers the right, as a matter of law, to compliance with the remand instructions.[xxiv] Once the RO completes its additional development, it issues another decision. The RO provides a Rating Decision if it fully grants the benefits on appeal. If it denies any portion, the RO issues an SSOC detailing explaining why. Anything listed in an SSOC is automatically returned to the Board for another decision.
If the Board grants service connection without assigning an effective date or without assigning an evaluation, the RO assigns both. The RO can issue either an SSOC or a Rating Decision depending on if it fully grants benefits. If the claimant may be entitled to a higher evaluation or earlier effective date, the RO issues an SSOC and the claims, again, return to the Board.
The only recourse for a Board denial is an appeal to the CAVC. The CAVC may affirm, modify, reverse, or remand a Board decision.[xxv] If a CAVC case results in a remand, the case returns to the Board with specific remand instructions. If the CAVC reverses the Board decision, the claims return to the Board for adjudication and, potentially, a remand back to the RO for implementation. This could lead to a final rating decision or another SSOC and another Board decision.
On August 23, 2017, President Trump signed “The Veteran Appeals Improvement and Modernization Act of 2017” making the AMA system law.[xxvi] The law took effect on February 19, 2019. The bill originated in the House Veteran Affairs Committee.[xxvii] The Committee reported that the “VA’s current appeals process is broken” because “the quantity of undecided appeals at VA” increased by 20% in a little over 2 years.[xxviii] The average wait time for an RO decision was two years. Id. Dwarfing the average five year wait time for a Board decision.[xxix] The Committee estimated that the wait time would balloon to ten years by 2027 if Congress did not act.[xxx] The purpose of the new system was to decrease these wait times and streamline the process.
The AMA “dramatically overhauled the VA appeals process.”[xxxi] Like the Legacy process, after an application, the VA issues a Rating Decision. The AMA system affords claimants three options to challenge a decision:
The AMA automatically applies to all original claims, increased claims, and requests to reopen claims for which the RO issues the notice of an initial decision on or after February 19, 2019, even if those claims were initially filed under Legacy.[xxxv]
Lawmakers often do not foresee all potential issues when passing new laws. The AMA is no exception. Congress passed the AMA to reduce the time claimants spent waiting for their finalized decision. In that regard, the AMA is a success in that it allowed claimants more options for review thus reducing the backlog of claims at the RO. Currently, the VBA is processing claims under both Legacy and AMA. This provides a unique opportunity to evaluate both systems. There are several benefits to claimants when they correctly utilize the AMA. Deploying a strategy that avails a claimant of all advantages of the AMA can lead to a large award. Failure to adequately consider all the drawbacks of the AMA can result in increased wait times, bureaucratic headaches, and improperly denied claims.
Regardless of the appeal type, under the AMA, a claimant has one year to appeal a Rating Decision.[xxxvi] This timeline uniformity makes it easier for pro se claimants wishing to challenge their decision. In Legacy, a claimant can only appeal to the Board within 60 days after an SOC. The additional AMA timeline gives claimants the opportunity to collect evidence to support their claims and prevents filing of unnecessary appeals.
Unlike in Legacy, the AMA limits the Board’s ability to review evidence.[xxxvii] In direct docket cases, the Board is limited to reviewing “the evidence of record at the time of the decision of the [AOJ] on appeal.”[xxxviii] If the prior decision resulted from a Supplemental Claim submission or new claim, the Board is limited to only reviewing evidence submitted before the RO made its decision.[xxxix] If any evidence is submitted or gathered by the VA while the claimant waits for a Board decision – the Board cannot review that evidence.
This problem is compounded even further if the decision on appeal is the result of a higher-level review request. The evidentiary record for a higher-level review “is limited to the evidence of record as of the date of the [AOJ] issued notice of the prior decision under review.”[xl] Therefore, an appeal to the Board from a decision on higher level review is also limited in its evidentiary review to evidence prior to the RO’s rating decision under higher level review. For example, if a claimant requests higher-level review to a denied new claim, any evidence submitted after the decision on higher-level review cannot be considered until a decision is made and, possibly, until the claimant submits the proper form to have evidence reviewed. If the claimant receives another denial and submits an appeal to the Board under direct docket, that evidence is still not going to be reviewed until the Board reaches a decision and, possibly, until the claimant submits the proper form to have the evidence reviewed. The requirement that the claimant submit the proper form depends on what the Board or claims officer decides. If the claims officer or the Board decides additional development is needed, then the evidence can be reviewed. But neither the Board nor the claims officer can consider any new evidence in reaching its decision.
The Board review lanes have similar issues. For the evidentiary submission lane, the Board can review:
The Board is prohibited from reviewing evidence submitted between the RO decision and the NOD.[xlii] Unless evidence is re-submitted with the NOD or within the 90 days window, even if the evidence is already in the claims file, the Board cannot review it.[xliii]
For the hearing lane, the evidentiary window is limited to:
Any evidence submitted between the submission of the NOD and the Board hearing must be resubmitted either during the hearing or in the 90 days following the hearing—otherwise it cannot be considered.
A recent additional issue with the AMA evidentiary windows is the language specifying that evidence must be “submitted by appellant and his or her representative.” This language may exclude from review any evidence submitted by the VA even if it was during the additional evidentiary windows. There is currently no court guidance or regulatory scheme that directly answers this question. In a system where the VA must assist all claimants in developing the facts to establish their claims, excluding any evidence not submitted by the claimant or their representative creates more confusion and is potentially violates long standing VA principles.
When it is unclear which lane the claimant intended to select because of evidentiary submissions, the Board must seek clarification from the claimant.[xlv]
Claimants can have their new evidence reviewed via the Supplemental Claim Lane even after a Board or CAVC decision. But with Board wait times still around 2 to 5 years, choosing the wrong lane can put a claimant on the wrong side of the AMA.[xlvi]
One great advantage to the AMA is the ability to maintain the original effective date. Effective dates are “fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options”[xlvii] Unlike Legacy, following a denial by the Board or CAVC affirmance, a claimant may file a Supplemental Claim to “continuously pursue” and retain the original effective date. In Legacy, the only option after a Board denial was to appeal to the CAVC or “reopen” thus forfeiting the original filing date as the effective date. The only option after a CAVC affirmance was to reopen and forfeit the original effective date. This benefit allows claimants to continuously collect evidence that may support their claims even while waiting for a decision. Even if that evidence cannot be reviewed on the current appeal or NOD, claimants can always submit the claim for reconsideration without the risk of losing their potentially life-changing backpay award.
Supplemental claims can also be used to avoid long Board wait times. Unlike in Legacy, there is no limit on the filing of supplemental claims. There is a restriction on submission of higher-level reviews. Claimants cannot submit higher-level reviews back-to-back or in response to a Board decision. If claimants submit all supplemental claims within a year, then the claim is continuously pursued thus preserving the original effective date. This allows a a claimant to obtain outside medical opinions, additional medical treatment records, or corroborating statements to boost their chance of a win. They may keep submitting new evidence in perpetuity as they collect it.
A word of caution on this approach. The effective date is the date of receipt of the claim or the date “entitlement arose.” The effective date is the latter of the two. While the case law is clear that the date the claimant submits evidence or evidence is generated is “irrelevant,” the VA habitually awards effective dates of examination dates, evidence submission dates, or supplemental claims submission dates.[xlviii] All claimants and practitioners should be aware of the RO’s erroneous effective date assignments to appropriately mitigate against RO errors. Each submission to the VA should include evidence or arguments regarding the correct effective date. Claimants can also appeal incorrect effective dates.
In 2019, claimants waited approximately 3.8 years between their first appeal and an initial Board decision.[xlix] If the Board remanded the claims, claimants waited an additional 1.4 years for a final decision.[l] The current Board wait time is about 12-18 months.[li] The current estimated Board hearing wait time is five to seven years.[lii] Because of the delay for decisions, under Legacy, veterans are excluded from free VA health care – forcing them to pay out of pocket. Many veterans also moved further into poverty and toward homelessness because they were not receiving the monthly compensation. It is also important to remember that in cases for service-connected disabilities, veterans require health care because their service caused their injuries. Meanwhile, their Legacy claims remained in “remand hell” bouncing back and forth between the VA, the Board, and the CAVC without relief.
Between fiscal years 2016 and 2019, remand decisions increased to 38.8 percent and 46 percent.[liii] Repeated remands from the Board and the CAVC is what ultimately led to the Legacy system’s demise. Claims were constantly bouncing between the various stages at the VA and undergoing additional, but sometimes unnecessary, development. Much of this additional development failed to follow CAVC or Board instructions repeating the process. Because of the long wait times, veterans are reluctant to file appeals to the Board. But in Legacy, a claimant could not request reconsideration at the RO level from a denied claim. The only way claimants could appeal any denial was in a linear fashion up to the Board. Practically speaking, major legal errors led to improper denials with only one option for recourse: long awaited Board times.
The final issue with the AMA is when claimants select Board hearings. A staple in our legal justice system is the fact finder’s ability to assess the credibility of any witness based on every part of their testimony. Among several factors, juries are instructed to consider the witnesses’ demeanor and manner while testifying.[liv] Despite this known advantage to view witness testimony, under the AMA, the VLJ who conducts and attends a Board hearing is not required to decide the outcome of the case.[lv] This CAVC decision is currently on appeal before the Federal Circuit, but until there is a decision, the Board does not require VLJs who attend the Board hearing to make the final decision. Currently, this is a drawback to the AMA system.
The AMA rebuilt the VBA system. It can provide significant benefits for claimants who understand the process and how to use this system to their advantage – including limiting the overall waiting period for a decision. Even almost four years after implementation, the AMA still causes confusion for claimants, practitioners, and VBA employees regarding filing proper forms, submitting new evidence at the proper time, and assigning the proper effective date. Until the Secretary, CAVC, and/or Federal Circuit issue more guidance, the regulations will continue to be applied inconsistently. Congress passed the AMA to avoid longer wait times for final decisions. To date, we are unsure if that goal was met.
[i] VETERAN Benefits Admin. Annual Benefits Report Fiscal year 2022, available at https://benefits.va.gov/REPORTS/abr/docs/2022-abr.pdf (last visited July 10, 2023).
[ii] Veterans Benefits Administration, U.S. Department of Veterans Affairs, https://department.va.gov/history/veterans-benefits-administration/ (last updated Apr. 26, 2023).
[iii] 38 U.S.C.S. § 101(2); 38 C.F.R. § 3.1(d)(2022).
[iv] See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604, 604 (Fed. Cir. 1996).
[v] 38 C.F.R. § 3.400 (2023); 38 U.S.C.S. § 5110.
[vi] Wise v. Shinseki, 26 Vet. App. 517, 531 (2014); 38 U.S.C.S. 5107(b).
[vii] Jones v. Shinseki, 23 Vet. App. 382, 388 n. 1 (2010).
[viii] Wise, 26 Vet. App. at 531 (2014) (quoting Gilbert v. Derwinski, 1 Vet. App. 39, 54 (1990)).
[ix] 38 U.S.C.S. § 5102(b).
[x] 38 U.S.C.S. § 5103A(a)(1); 38 C.F.R. § 3.159(c) (2023); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005).
[xi] 38 U.S.C.S. § 101(34).
[xii] 38 U.S.C.S. 5104; 38 C.F.R. § 3.104(b)(2022).
[xiii] 38 U.S.C.S. § 7101(b)(1).
[xiv] 38 U.S.C.S. § 7101A(a)(1).
[xv] Id.
[xvi] 38 U.S.C.S. §7101A(a)(b).
[xvii] 38 C.F.R. § 3.2500(c)(3(2023)).
[xviii] See 38 C.F.R. § 3.2400(b) (2023).
[xix] 38 U.S.C. § 7.105 (2021); 38 C.F.R. §§ 20.200, 20.302 (Jan. 3, 2017).
[xx] 38 U.S.C. § 7.105(d)(3)-(5)(2021); 38 C.F.R. §§ 20.202, 20.302 (Jan. 3, 2017).
[xxi] See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Hogan v. Peake, 544 F. 3d 1295, 1298 (Fed Cir. 2008).
[xxii] 38 U.S.C.S. § 7104(d).
[xxiii] Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990).
[xxiv] Stegall v. West, 11 Vet. App. 268, 271 (1998).
[xxv] 38 U.S.C. § 7252(a).
[xxvi] (Pub L. 155-55).
[xxvii] H.R. Rep. No. 115-135, at 5 (2017).
[xxviii] Id.
[xxix] Id.
[xxx] Id.
[xxxi] Military-Veterans Advocacy v. Sec’y of Veteran Affairs, 7 F.4th 1110, 11140 (Fed. Cir. 2021).
[xxxii] 38 C.F. R. § 3.2501(2023).
[xxxiii] 38 C.F.R. § 3.2601(e)(2023).
[xxxiv] 38 C.F.R. § 20.202(b)(1-3)(2023).
[xxxv] 38 C.F.R. § 3.2400(a) (2023).
[xxxvi] 38 C.F.R. § 20.203(b)(2023).
[xxxvii] 38 U.S.C.A. § 7113.
[xxxviii] 38 U.S.C.S. § 7113(a).
[xxxix] See 38 U.S.C.S. §5108; 38 C.F.R. §3.2501(b).
[xl] 38 C.F.R. § 3.2601(f)(2023).
[xli] 38 U.S.C.S. § 7113(c).
[xlii] Cook v. McDonough, No. 20-6853, 2023 WL 3488255 at *2-4 (Vet. App. May 17, 2023).
[xliii] Id. at *4.
[xliv] 38 U.S.C.S. § 7113(b)(2).
[xlv] See Edwards v. McDonough, 36 Vet. App. 56, 63-64 (2023) (citing Arneson v. Shinseki, 34 Vet. App. 379, 389 (2011)).
[xlvi] Board of Veterans’ Appeals, Appeals Metrics, U.S. Dep’T of Veterans Aff., https://www.bva.va.gov/decision-wait-times.asp (last visited July 10, 2023).
[xlvii] 38 C.F.R. § 3.2500(h)(1) (2023).
[xlviii] See McGrath v. Gober, 14 Vet. App. 28, 35 (2000); Swain v. McDonald, 27 Vet. App. 219 (2015); Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014).
[xlix] See Annual Rep., U.S. Dep’t of Veterans Affairs, Board of Veterans’ Appeals, 25 (Fiscal Year 2019).
[l] Id.
[li] Veterans Benefits Administration, U.S. Department of Veterans Affairs, https://www.va.gov/decision-reviews/legacy-appeals/ (last updated Oct. 12, 2022).
[lii] Id.
[liii] Annual Rep., U.S. Dep’t of Veterans Affairs, Board of Veterans’ Appeals, 33 (Fiscal Year 2019).
[liv] See United States v. Phillips, 522 F.2d 388, 391 n.3 (8th Cir. 1975).
[lv] Frantzis v. McDonough, 35 Vet. App. 354, 360-69 (2022).
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