What is the Appeals Modernization Act?
The Appeals Modernization Act has reduced the average time to receive a VA disability decision. Older claims typically took 3-7 years to receive a decision. In order to address this issue, Congress passed the VA Appeals Modernization Act in 2017. On February 19, 2019, VA officially implemented this new law. As a result, VA’s new goal is to complete claims and appeals in an average of 125 days. This reflects VA’s renewed focus to deliver timely decisions to veterans and their survivors.
The VA Disability Claims Process Applying the Appeals Modernization Act
Filing an Original VA Disability Claim
The Appeals Modernization Act applies if you have already applied for VA Disability Benefits. Therefore, if you are filing an Original Claim it will not apply at the time of filing. If you never filed a VA claim before, then you’ll need to file an Original claim. Per VA rules, you can only file an original claim using a VA Form 21-526EZ. The form asks for your Social Security number, dates of active duty service, branch of service, and other biographical information. Most importantly, you must briefly explain why your claimed disability is related to your active duty service.
Filing a VA Disability Supplemental Claim
When VA denies a claim, it must explain why. VA has always had this duty. However, the Appeals Modernization Act has enhanced this duty in the veteran’s favor. As of February 19, 2019, VA must explain to the veteran which elements he successfully proved. With that knowledge, a veteran should focus on getting evidence for the unproven element(s). This New and Relevant evidence could change VA’s mind. A veteran who obtains such evidence should submit it to VA with a Supplemental Claim.
Take the example of Joe Smith
Joe served in the Coast Guard for 3 years. In 1991, he filed an Original claim for PTSD. In a 1993 decision, VA denied the claim because there was no current diagnosis of PTSD. Joe was so discouraged by this decision that he did not file an appeal. During a 2019 visit to the local VA hospital, doctors diagnosed Joe with PTSD. Unsure of what to do, Joe contacted DHG for a free consultation. The experts at DHG agreed to represent him in a Supplemental Claim. DHG filed a completed VA Form 20-0995 on Joe’s behalf, along with a copy of the current diagnosis. Four months later, VA granted his PTSD claim at a 70% rating.
Appeals Modernization Act: Filing a Higher Level Review
This path improves on the Decision Review Officer (DRO) lane from the legacy system. The main difference is that if the claimant requests a telephonic hearing in Higher Level Review, VA must grant it. In the DRO lane, VA could reject a request for a telephonic hearing for any reason. Thanks to the Appeals Modernization Act, VA cannot delay your right to a hearing.
Sometimes, VA denies a claim even though it has evidence to satisfy all 3 elements. Either VA overlooked evidence, or it misunderstood the law it applied to the case. In either scenario, it’s not that the veteran failed to prove his case. VA just made a mistake. If VA’s decision is infected by that kind of mistake, then your best bet is to file a Request for Higher Level Review. This path involves an experienced VA adjudicator checking a Rating Decision for errors. This adjudicator may issue a revised Rating Decision that corrects these errors. And it does not require new evidence.
Appeals Modernization Act, but with slightly different facts
In this example, assume Joe filed an Original claim for PTSD in 1991. He filed the claim with a copy of a 1991 PTSD diagnosis and his service treatment records, which showed an in-service diagnosis related to a combat incident. In a 1993 decision, VA conceded all other elements were met except the diagnosis. Joe became discouraged and gave up. Years later, he asked a DHG rep to review his case. The DHG rep noticed that VA overlooked the 1991 PTSD diagnosis. DHG immediately filed a Request for Higher Level Review on VA Form 20-0996. DHG also attached a two-page argument that explained the legal errors. Five months later, VA issued a revised Rating Decision that granted his PTSD claim effective 1991. This is the benefit of the Appeals Modernization Act.
Filing a Notice of Disagreement to the Board of Veterans’ Appeals (BVA), using Appeals Modernization Act
What do you do if VA denied your Original Claim, Supplemental Claim, and Request for Higher Level Review? Your next option is go over their heads to the Board of Veterans Appeals. VA Form 10182 gives you 3 lanes:
- Evidence, and
The Direct lane is for cases where all evidence and legal argument is already in VA’s records. The Evidence lane gives you 90 days to provide additional evidence. The Hearing lane gives you the right to make your case directly to a Veterans Law Judge. In the Hearing lane, you also have 90 days after the hearing to submit additional evidence.
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