Deciding the best course of action to take with your Department of Veterans Affairs (VA) appeal is all about strategy. Here’s the information that you need to know to make a smart decision.
What is the AMA?
The VA Claims and Appeals Modernization Act (AMA) is the government’s new legal framework for appealing your VA decisions. The AMA’s goal was to provide a streamlined process that allows for early resolution of a claimant’s appeal. It allows claimants to tailor the process to meet their individual needs and control their VA experience all the while providing a feedback mechanism for targeted training and improved quality within the Veteran’s Benefits Administration (VBA) and Board of Veterans’ Appeals (BVA).
The AMA became law on August 23, 2017, and was officially implemented on February 19, 2019 – so if you file(d) a claim or appeal on after February 19, 2019, you will have your appeal handled under the AMA’s framework.
What are the Three “Lanes” Within the AMA?
Most importantly, the AMA provided three lanes to choose from when appealing your VA decision. Below is a quick overview of your options:
Higher Level Review Lane - A claimant can request a review of the prior VA decision, which will be conducted by an experienced adjudicator who did not participate in the prior decision. The evidentiary record in a higher level review appeal is limited to the evidence of record as of the date that the agency of original jurisdiction (AOJ) issued notice of the prior decision. The higher-level adjudicator will ensure that VA complied with its statutory duty to assist the claimant in obtaining and compiling the evidence needed to make the right decision on your claim(s). A claimant may include a request for an informal conference. 38 C.F.R. § 3.2601
Supplemental Claim Lane - A claimant who disagrees with a prior VA decision may file a supplemental claim if he or she has “new and relevant” evidence that should be considered. New evidence is evidence not previously part of the actual record before agency adjudicators. Relevant evidence is information that tends to prove or disprove a matter at issue in a claim. Relevant evidence can also include evidence that raises a theory of entitlement that was not previously addressed. The evidentiary record for a supplemental claim includes all evidence received by VA before VA issues notice of a decision on the supplemental claim. 38 C.F.R. § 3.2501
BVA Appeal Lane - A claimant can appeal directly to the BVA by filing a Notice of Disagreement (NOD). This action will remove a claimant from the VA regional office roundabout, and he or she can select the way that the BVA will review the claims(s) under the below three docket choices. 38 C.F.R. § 20.202
Direct Docket - Use this option if you have no new evidence, and you only want to make an argument that the VA's decision was legally incorrect or that the decision failed to analyze something in the record of satisfy its duty to assist.
Evidence Docket - You can submit new evidence within this BVA docket or within 90 days of submission of the BVA NOD. With this option, a BVA judge will review your evidence, as opposed to a non-lawyer at the VA Regional Office level. This docket is preferred if you feel like the Regional Office does not understand your legal arguments or legal issues sufficiently.
Hearing Docket - Use this lane if you want a hearing before a veteran’s law judge (VLJ). You can submit new evidence at hearing or within 90 days after hearing, but not before.
When Do I need to File My Appeal and Select a Lane?
A veteran must file his or her appeal within one year of the notification of decision. However, if you received a BVA decision, and you want to appeal to the U.S. Court of Appeals for Veterans Claims (CAVC) you must file your Notice of Appeal within 120 days of the notification of the BVA decision.
Can I Switch Lanes After I Appeal?
A claimant may change his or her mind and withdraw from the initially-chosen lane as long as the claimant files for another lane for the same benefit before the VA or BVA issues a decision on the issue(s) at hand. However, the claimant must change lanes within one year of the notification of decision of the appealed issue(s) in order to preserve his or her earliest effective date. This might be an enticing strategy if you initially chose a higher level review lane or direct docket lane and later discovered new and relevant evidence that may help your appeal.
Which Options are Veterans Choosing?
For the year 2021, the total number of filings in the AMA are as follows:
Higher Level Review = 209,404 filings
Supplemental Claim:
After Agency of Original Jurisdiction (AOJ) decision = 596,082
After Board of Veterans’ Appeals (BVA) decision = 21,185
After U.S. Court of Appeals for Veterans Claims (CAVC) decision = 7,595
BVA Notice of Disagreement = 132,306
How Long Does Each Lane Take?
VA’s goal for higher level review appeals is an average of 125 days
VA’s goal for supplemental claim appeals is an average of 125 days
BVA’s average days until completion from the date of the NOD are as follows:
Hearing docket ~659 days
Evidence docket ~350 days
Direct review docket ~321 days
What are my Chances of Winning with Each Lane?
As of December 31, 2021, the Office of Administrative Review (OAR) notes the following grant rates for the Higher Level Review Lane:
10.1% Grant Rate
23.3% Error Rate (i.e., returned for correction of a duty-to-assist or general error)
AMA Supplemental Claims statistics are not yet accurately available. But if it is anything like the success rates for VA’s early pilot program called the Rapid Appeals Modernization Program (RAMP), it will be around 27%.
As of Q1 2022, BVA notes the following Grant Rates per lane:
Direct Docket = 22%
Evidence Docket = 26%
Hearing Docket = 32%
How Can an Attorney Help?
The (VA) keeps records of the number of claims approved or denied each year.
In 2018, the percentage of veteran’s appeals approved with an attorney was 44.61%, while only 27.22% of veteran’s appeals were approved with no representative.
In 2019, 46.31% of veteran’s appeals were approved with an attorney, while only 26.18% of veteran’s appeals were approved with no representative.
In 2020, 40.9% of veteran’s appeals were approved with an attorney, while only 26.2% of veteran’s appeals were approved with no representative.
It's clear that hiring an attorney can boost your chances of success. If you have question or just want to talk, do not hesitate to reach out. Set up your free consultation today to see how I can help you successfully appeal your claims.