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The VA RAMP Supplemental Claim and other new Appeal Options

This post is Part II of a 5-part series on the VA RAMP (Appeals Reform) system. 

Here are the topics for each of the 5 parts of the series - as they are published, links will appear to direct you to each part: 

Part I (Click here to Read Part I): This is an introduction to VA RAMP.  I will discuss what VA RAMP is, how VA appeals reform and modernization came about, and identify the 2 core structural changes that underlie the entire VA RAMP program.

Part II: (This Post) I will discuss, generally, the first major structural change: the 3 types of appeals.

Part III: I will dive into the second structural change: the 3 BVA hearing lanes.

Part IV: I will talk about what pieces of the old process will be scrapped, and the pieces that were added to make the process at least appear cohesive.

Part V: I will begin discussing the VA RAMP Pilot program, and give you ideas about what you can do to help get your veteran and survivor clients ready for the changeover, and ready to make some really tough decisions.

Refresher - What is VA RAMP?

As we dive into this second installment, let's remember what we are talking about.

In an effort to speed up appeals processing times, which are anywhere between 3 and 12 years, depending on where you live and what type of case you have, the VA lobbied and Congress passed (in 2017) the VA Rapid Appeals Modernization Program (called VA RAMP).

This legislation is the single most significant piece of Veterans Benefits legislation to come out of Congress since the Judicial Review Act in the 1980s, and it will change the way you practice veterans law.

The changes center on 3 themes:

Theme 1: structural changes to the types of appeals a veteran or survivor can make, and when

Theme 2: structural changes specifically to the BVA hearing and the process to get a BVA hearing.

This post discusses that first theme, and outlines the structural changes to the types of appeals a veteran or survivor can file, when they can file them, and what purpose they serve.

An IMPORTANT Warning about Terminology.

THIS IS CRITICAL TO NOTE: Technically, VA RAMP refers to the VA pilot program to implement the Veterans Appeals Improvement and Modernization Act of 2017.

However, I use the term interchangeably, since the pilot program will someday become the actual program. 

This is problematic, because in reality, we have 3 Appeal processes: Legacy appeals, RAMP Pilot Appeals, and RAMP Actual Appeals, the latter of which has not yet been implemented but could be any time.

Throughout this post, and the entire series, here's how I differentiate the 3 appeals processes:

VA RAMP (pilot)

VA RAMP (actual)

Legacy 

VA RAMP Structural Change #1 - the Supplemental Claim is a critical new "appeal" option.

When it comes to preparing for the changes VA RAMP will create, there are 3 critical options that accredited VA attorneys, VSO representatives and accredited VA agents will need to familiarize themselves with - the whole process rests on these 3 options.

The selection of one of these options is triggered by your client's dissatisfaction with a VA ratings decision on their claim.

It is too early to know how to decide which option will be best for any given claim or appeal, as the VA has not yet published VA RAMP Appeals Reform regulations.

You should recognize the basic structure:

Option 1 is conceptually similar to the reopened claim.

Option 2 is conceptually similar to the DRO review.

Option 3  is the BVA hearing we veterans and advocates have lived with for more than a century.  

Even though the basic structure remains the same, however, there are significant changes to the process that you will want to start getting familiar with.

Caveat: I have done my best, in this introductory post to keep my opinions of VA RAMP to myself. I must, however, acknowledge that no matter how much the VA Appeals process is changing, the basic concepts and philosophy underlying VA disability appeals which created the appeals processing delays of 8-10 years have NOT changed. I strongly encourage veterans, attorneys, and non-attorney representatives and agents to remain very suspicious of the VA RAMP process, its motives, its objectives, and its value. The proof will be, as they say, in the pudding. 

Option 1: Supplemental Claim.

If a Veteran or Survivor is dissatisfied with a VA Ratings decision, and believe that with additional evidence the outcome could be different, they will be able to file a Supplemental Claim. 

The Supplemental Claim is the hallmark of the VA RAMP program. Without this structural change, the other appeal options just become a new variation on an old theme. 

The Supplemental claim can be filed any time after a ratings decision, and to be properly filed, a supplemental claim will need to include "new and relevant" evidence (which Congress has asked courts to construe in the same way as they did the phrase "New and Material evidence"). 

The new and relevant evidence will need to be submitted within thirty (30) days of the Supplemental Claim.

If the Supplemental Claim is filed within 1 year of the VA Ratings Decision, the effective date will remain the date of the original underlying claim; if more than 1 year later, the effective date will be the date of the Supplemental Claim.

There is no limit to the number of Supplemental Claims a veteran or survivor can file.   They must always, however, include new and relevant evidence as to the element for which the prior claim was denied. 

Attorneys and VSO representatives will be able to file a supplemental claim for their clients, and will still be able to charge a fee for representation as long as the original underlying claim is associated with a VA Ratings Decision.

A Supplemental  Claim can be filed after any VA adjudicatory action: VA Ratings Decision, BVA Decision, even CAVC decisions.  The VA clearly favors this option, and it's easy to see why.

If done in a certain way, and with a certain subset of veterans (those who don't know the system or don't hire an advocate to help) the VA can deny a veteran or survivor's claim and appeal forever, without ever giving the veteran a viable option at judicial review. 

Option 2: Higher Level Review.

If a Veteran or Survivor is dissatisfied with a VA Ratings decision, but has no new and relevant evidence, they will be able to request a "Higher Level Review" by an experienced VA Rater. 

The Higher Level Review can be performed by a rater at the same or different office as the original decision. 

Keep in mind that the VA is shifting to a National Work Queue, where work is assigned to the next available employee, irrespective which VA Regional Office serves the Veteran. 

I suspect, that within 5 years, we will see the VA Regional Offices collapsed into a single National Work Center, much like the IRS did about 20 years ago.  This is the single greatest way for the VA to change the culture of its employees: collapse everything into a single facility in a remote part of the US, and hire and train new employees to work the claims. 

 The Higher Level Review in the VA RAMP Appeals Reform program will not allow for the submission of new evidence. 

The VA can deny a request for a Higher Level Review for good cause shown. 

The Higher Level Review option is very much like the highly popular and highly successful DRO (Decision Review Officer) process the VA started in 2008-2009, with the critical distinction that it removes that which made the DRO process popular and successful: the veteran, or her attorney, can submit new evidence and argument directly to a senior VA claims rater and get a quick grant of benefits for their client.

One senior  official at the VA, speaking privately and on condition of anonymity, has cautioned me privately that, unless VA employees are given appropriate work credit from the Higher Level Review process (something that it is not believed DROs received), the Higher Level Review will be neither meaningful nor effective.  Because of this individual's visible role in matters pertaining to the implementation of VA RAMP and its "Pilot Program", he has asked me to protect his anonymity by not identifying anything beyond the fact that he - or she - is an SES employee involved in VA RAMP implementation.

Option 3: BVA Hearing and Decision.

Not much will change about the BVA Hearing, even though everything seems to be changing about how one gets a BVA hearing.

What do I mean?

I am going to discuss the structural changes to the BVA Hearing in great detail in Part III of this series (a link will appear here when Part III is published).

For now, here are the major changes summarized:

  • You will be able to file a Notice of Disagreement (NOD) for your client (currently, only the Veteran can technically file a NOD).
  • You will have 1 year from the date of the VA Ratings Decision to file your BVA Appeal.
  • You no longer need to perfect an appeal by filing a NOD, waiting for a Statement of Case (SOC) and filing a VA Form 9 Substantive Appeal. The appeal to the BVA will be initiated by a single notice of disagreement, that will have slightly more formal pleading and filing requirements.
  • The NOD will be filed with the BVA, so appeals no longer need to be certified.
  • The BVA has the authority to decide, from the outset, whether appeals are adequate, and may dismiss those that are inadequate.
  • Once you appeal, you will be able to choose 3 "Tracks" or "Lanes" for your BVA Appeal. Which track you choose depends on whether you want a hearing and when you want to include evidence in the record.
  • The BVA will have at least 3 dockets: a hearing docket, a no-hearing docket, and a legacy docket for those appeals that are still handled under the current system.
  • BVA Hearings will be video by default, but advocates may be able to request to alternate

The biggest change is this: once the VA issues a Ratings decision, the Duty to Assist "expires".  Frankly, this is a good thing. I never saw a lot of value in the duty to assist, as the competent  attorney sought out and proved up their client's claims independent of the VA's "assistance".  

Coming next: VA RAMP for advocates, Part III...

In summary of Part II, the attorney representing Veterans before the VA will have some hard decisions to make when a veteran or survivor comes to them with a VA Rating Decision denying benefits.

We know very little about how to make those decisions, yet, but that information will come.  For now, it is important that you understand what the 3 options will be, and how they may work.

It is critical to understand the concept of the supplemental claim: so long as the supplemental claim is filed within 1 year of the prior VA ratings decision, so long as it contains new and relevant evidence submitted within the statutory 30 days, the record never closes, and the original effective date is preserved.

It is conceivable that a veteran's claim for benefits could never see judicial review.

The Supplemental Claim, done right, can be a huge benefit. Done poorly, the Supplemental Claim could leave veterans no better off than they were before the Veterans Judicial Review Act. 

Next, in Part III, I will dive into the second major  structural change in the VA RAMP Program...we will discuss the 3 BVA Hearing options. 

When the post goes live in a few days, this text will be replaced with a link to the second post in the series.

 

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