What is the new "Modernized Review System?"
The "Modernized Review System" is a result of the "Appeals Improvement and Modernization Act of 2017." The purpose is to simplify the appeals process and make it easier and quicker for claimants to receive VA response from unfavorable decisions.
VA's solution to solve the Appeals backload discussed in a previous section is the "Appeals Improvement and Modernization Act of 2017." This is now simply called the "Appeals Modernization Act" or the AMA. VA was given 18 months to test the new process, as mandated by the legislation, and make sure that it worked before fully implementing the new rules. This pilot program became the so-called Rapid Appeals Modernization Program or RAMP for short. As of February 19, 2019 the AMA became effective and the RAMP process was discontinued. The implemented new process is referred to in the regulations in 38 CFR Part 3 as the "Modernized Review System."
Noteworthy Changes under the Appeals Modernization Act
Here are the most significant changes from the legislation pertaining to claims handling and challenging unfavorable decisions:
- The record is closed after a decision
- Reconsideration and reopening of claims are no longer options
- New evidence will only be considered with a Supplemental Claim or with the Board Appeal Lane for that option
- Arguments can still be submitted where no new evidence is allowed such as a Higher-Level Review or Board Appeal Lane with review only
- Hearings are still allowed but are tightly restricted and only allowed in connection with new evidence previous to a decision for a Supplemental Claim or with the BVA
- Accredited representatives can charge fees after the first notice of decision as long as the claimant has not elected one of the review options first
- Decisions by the Board Of Appeals can be challenged by a Supplemental Claim
- Requests for an increase in rating must be filed as an initial claim and evidence of the increase can only apply 1 year prior to the date of application (we do note here that VA will accept a Supplemental Claim for an increase in rating even if it has been longer than one since the decision)
Closing the record after a decision may not seem to be that big of a deal, but to VA it is a major issue. Discussion in the Federal Register devoted to the new rule for closing the record identified this issue as something that VA regarded as essential to processing appeals in a more timely manner. VA had adopted a liberal policy of entertaining new evidence at any time during the claim process. This required "by hand" review and processing of evidence by adjudicators, similar to the review required for simply considering the evidence for decisional purposes. As such, VSRs used up limited adjudicative resources reading and processing documents and issuing written notices that were not part of the record and eventually would not be the basis for a decision.
The new rule does away with reopening claims and the reconsideration policy we just described by simply closing the record after a decision and not allowing any new evidence into the record for consideration. The only way to submit new evidence is now through a formal process called a Supplemental Claim or through the docket evidence Lane with the BVA. This does not mean that VA will reject any new evidence submitted outside of a Supplemental Claim. This evidence will be put into the VBMS system but will only be added to the evidence file for a claim when a Supplemental Claim is submitted or when an appeal to the Board requesting new evidence is made. In the Federal Register, VA asserted that this new procedure will save a great deal of time and conserve departmental resources previously expended by VA employees.
This new evidence rule does not prevent submitting arguments with a Higher-Level Review or with the expedited docket Lane with the BVA. Arguments could include identifying critical evidence that was ignored with the previous decision. Or failure to recognize a new theory of service connection or even recognize the proper theory of service connection which was perhaps not comprehended by the adjudicator.
The old regulations allowed for requesting a hearing at any time during the adjudication process and submitting new evidence and requesting a different adjudicator for this process. In some cases, a DRO could be requested. These hearings did not require a Notice of Disagreement. Many accredited representatives had used this process in the past to turn around faulty decisions without having to file a Notice of Disagreement and thus commit to an eventual appeal. This was advantageous as no one wanted to go to an appeal that is currently taking about seven years.
Under the new rules, evidentiary hearings have almost entirely been eliminated with the exception that a hearing can be requested in conjunction with new evidence submitted with A Supplemental Claim or the BVA.
The other major changes in the list above will not be further discussed on this website. If you want to know more, you can go to the regulations do better understand the various changes. However, note the change for a request for an increase. Under previous rules the increase could be granted from the point at which the rating would have warranted a higher disability. Now the claimant can only go back one year prior to the date of application for an increase in rating.
Above is the most recent incarnation of the claims processing model that is used for claims for disability compensation, pension and DIC. The claims processing model and the modernized review system are now tightly integrated together as one process.
We went into more detail in previous sections on several failings of the current claims processing model and we introduced various strategies on how to overcome those failings to hopefully get a better decision. If for some reason your claim produces an unfavorable decision, just about everything revolves around that decision. From the decision you can accept the favorable or unfavorable outcome or you can disagree. You have 3 different options to pursue for that disagreement.
- submit new and relevant evidence through a Supplemental Claim and request re-adjudication or
- request a Higher-Level Review where you will receive a fresh review of the existing evidence in the file from a more experienced adjudicator and a new decision or
- file a Notice of Disagreement for an appeal.
Perhaps the most notable feature of this system is that you can have more than one bite at the apple so to speak. In other words, as long as you have new and relevant evidence, and you act within one year of the previous decision, you can theoretically cycle your claim indefinitely either through the BVA or through a Higher-Level Review and if you don't agree with any of those decisions, you can submit new evidence with a Supplemental Claim and start the process over again. This is because decisions from the BVA can also be challenged with a Supplemental Claim moving the claim back to the Regional Office for reconsideration thus using the three options over and over again.
As we will discuss in another section, this is simply a mirage. In reality, the new review system greatly inhibits your ability to gain a favorable decision shy of going the full 7 years with an appeal that includes a hearing and new evidence. The old system provided far more opportunities for challenging a bad decision and receiving a favorable new decision.
Initial, Original and Supplemental Claims
The new law redefines definitions of the types of claims that VA has been using in the past. Prior to the law, an initial claim was the same as an original claim which was a first-time filing. A supplemental claim was any claim filed by someone who was already receiving benefits. Thus under the previous definition, a supplemental claim was also a claim for secondary disability or a claim for increase in rating. Under the new definitions, an initial claim remains a new claim for benefits using VA forms 21-527 EZ, 21-534 EZ or 21-526 EZ. VA is moving in the direction of discontinuing all previous application forms and at some point the newest version of any of these 3 forms will be the only form of an initial application accepted. This is because VA is converting all of its forms to include "optical character recognition" of the identifying information on its forms for greater efficiency.
Under the new definitions, an original claim is the first-time filing for any benefit. An initial claim also includes applications for secondary disability or a request for increase in rating. In other words, one of the forms listed above must be used for these other types of applications as well. On the other hand, we have found in practice that using a Supplemental Claim for an increase in rating is a much simpler process then filing a brand-new application. VA has recognized this as well and will accept Supplemental Claims for requests for increase.
What has changed is the definition of a supplemental claim. Under the new rules, a supplemental claim is any claim that is not an initial claim. This is somewhat similar to the old definition where a supplemental claim was any claim for benefits from someone who was already receiving benefits. But the new concept is different as it is an application from someone who has an existing claim in process which is not been decided and wants to submit new evidence. New evidence can no longer be submitted informally but must be submitted on the proper application form. You can pause the presentation here to look at the chart on the bottom of the page.
New and Relevant Evidence
38 CFR 3. 2501 (which covers the new law) defines new evidence as evidence not previously part of the actual record before agency adjudicators. This is pretty much the same rule that has been applied in the past. In the past if a claimant submitted evidence that was not new, VA still considered that evidence as far as evaluating it and would send a notice to the claimant that the previous decision would stand. VSRs would apply this process if evidence were submitted at any time during the adjudication process. Under the new system, any evidence must be submitted with a Supplemental Claim and if it is not considered new, any further development stops there and there is no decision.
According to the Adjudication Manual M21-1, new evidence could be considered any of the following: testimony, to include statements, contentions, and arguments, documentary proof, medical examinations or reports, and other material not previously considered. This might include new medical records that show a change in condition, lay statements both from claimants, spouses or buddy statements that shed new light on the claim, and of course new DBQs and new medical opinions. This new evidence cannot duplicate information contained in existing evidence in the file even if it is presented differently.
Even though a medical evaluation or opinion may come from a different doctor, if it offers no new basis on which the claim might be reconsidered it will be disregarded. It must contain new information, such as evidence that the condition first manifested itself earlier and much closer to service than previously established or new evidence regarding service connection that was not a part of the record. However, new evaluations or opinions may be more relevant than those in the file and we will discuss this shortly. Even though the adjudicator may not consider a new opinion to be new evidence, anyone presenting such an opinion must also provide ample arguments that a previous opinion was not adequate or was totally wrong and the new opinion meets the requirements for adequacy which the old opinion did not.
38 CFR 3.2501 defines relevant evidence as evidence that tends to prove or disprove a matter at issue in a claim. Relevant evidence also includes evidence that raises a theory of entitlement that was not previously addressed. This last sentence is of extreme importance, because previous regulations did not provide this protection for a new theory of entitlement. We have seen countless claims that were denied based on what VA thought was the theory of entitlement but was not. Now you have the ammunition to confront the adjudicator with a legal obligation when you run across this problem. You must include an argument with new and relevant evidence that refutes VA's erroneous theory of entitlement if you run across this problem by citing this regulation.
Relevant evidence is supposed to lower the burden of proof, but in trying to research this we find the previous standard of material evidence also included a test for relevance and we are not sure that anything has changed here. We discussed the introduction of new medical examinations or opinions. It may be that a new medical opinion covers the same ground as a previous opinion, but if the new opinion is adequate and the previous opinion is proven to be inadequate, the previous opinion will not be probative for making a fair decision. This is a case where the new medical opinion is more relevant.
Supplemental Claims must be submitted using VA form 20-0995. Here is a flowchart of how the Supplemental Claim and Higher-Level Review process works.
A higher-level review requires submitting VA form 21-0996. Here is a flowchart of how the Supplemental Claim and Higher-Level Review process works.
Under the old rules you could request a Regional Office hearing at any time with new evidence and with a new adjudicator. If it was determined at this hearing that the new evidence was probative, you would receive a new decision. In addition under the old rules, when you filed a Notice of Disagreement you were optionally entitled to a Decision Review Officer (DRO) hearing with the opportunity to submit new evidence. This hearing required a complete review of your record and required a new decision whether new evidence was submitted or not. Decision Review Officers are the most experienced adjudicators in any Regional Office. Under the old rules, their expertise could be tapped into in order to ensure a more informed and fairer decision on any claim. Under the new rules DRO's play a significantly lesser role in reviewing challenges to a decision. You can no longer request a DRO review.
Under the new rules, the Higher-Level Review does not allow for submitting any new evidence. The Higher-Level Review does require a new decision. Even though new evidence is not allowed, the review does allow for submitting arguments as to why the previous decision was not properly adjudicated and this could include identifying an improper theory of service connection or the failure to examine certain evidence.
This Higher-Level Review does allow for a phone conversation with the higher-level adjudicator. We would assume that everyone would take advantage of scheduling this phone conversation to present any arguments relating to the previous decision. To not request the phone interview would be a significant mistake. The intent is for the Higher-Level Review to use an adjudicator who has more experience and can render a more reasoned, thorough and reliable decision. There is no requirementfor the Higher-Level Review to be conducted by a DRO which was an option under the old rules.
VA has established 2 locations where these reviews will be conducted. They are called Decision Review Operations Centers or DROCs. One of them is in the Seattle Regional Office and the other one is in the St. Petersburg Regional Office. For 2019, in Seattle they will have a staff of 227 employees and 485 employees at St. Petersburg. The Appeals Resource Center in the Washington DC Regional Office will eventually be converted into a third DROC when those 183 employees are done processing legacy appeals.
Each DROC is staffed with decision review officers, journey-level and non-journey-level rating Veterans Service Representatives, Veterans Service Representatives, and claims assistants.
Certain restricted claims such as those from VA employees or accredited representatives, are currently assigned to the Milwaukee regional office and any higher-level reviews for those particular claims will be retained in the Milwaukee regional office.
Board of Veterans Appeals
A Notice of Disagreement is still required for requesting an appeal with the Board of Veterans Appeals. There is a new form for this – VA form 10182. This form allows you to choose any one of 3 Docket Lanes for your appeal. One of these lanes is called an expedited appeal and does not allow you to submit new evidence or to request a hearing. VA has promised a decision on an expedited appeal within at least one year of the NOD.
You see above the other two lanes. One of these allows for new evidence but no hearing which we would presume would be the next fastest decision. The final Lane allows for new evidence with a hearing which we would presume would be the slowest decision.
The previous requirement for a Statement of the Case, a Supplemental Statement of the Case and a certification of the appeal to the Board using VA Form 9 is no longer required. This previous requirement was a silly waste of time and made no sense. Doing away with these procedures is indeed an improvement in the system and should have been implemented a long time ago.
You also see that under the new system, a decision from the Board of Appeals can be challenged with a Supplemental Claim, thus transferring the claim back to the Regional Office and allowing for the process we have discussed previously. This is interesting, because under previous rules a decision from the Board was considered final over any decision from the Regional Office. You also see that a decision from the Court of Appeals for Veterans Claims can also be challenged back to the Regional Office with a Supplemental Claim. The same is true of any decision from the DC Circuit Court. However based on how decisions are handled from that Court, it would likely be impossible to meet the one year deadline for submitting a Supplemental Claim.
Please refer to the table of contents in the top right column of this page for more topics on Unfavorable Decisions.
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