What are the Advantages and Disadvantages of the New Review System?

It appears the intent of this legislation is to reduce the amount of time that the department devotes to claimants who are challenging decisions. Some of these significant restrictions introduced by the "Appeals Improvement and Modernization Act of 2017" (AMA) include

• eliminating certain previously required decision notices,
• eliminating reopened claims,
• eliminating the informal practice of reconsideration of new evidence coupled with duty to assist,
• eliminating the paperwork burden of certifying an appeal for the Board,
• significantly restricting the availability of Regional Office Hearings and
• finally, offering an optional expedited docket appeal lane with the board of veterans appeals that involves no new evidence and no hearing.

The new optional board lane is simply a review of the existing evidence and a new decision by a board judge. Claimants requesting this expedited lane are promised by VA that a decision can be rendered within a year. This definitely is an improvement.

Whether this new system is favorable to claimants are not remains to be seen. We don't see how devoting less time and eliminating many of the previous alternative options for challenging claims is any advantage to the claimant. VA may tout the new system as being an improvement over the old system, but we see it as providing restricted opportunities for the claimant to receive fair treatment from unfavorable decisions.

The issue with any new program is the time it takes to make sure employees are trained and everything works properly. VA had 18 months to pilot the changes prior to the official effective date in February 2019, but at this point we don't know whether the new system is an improvement or as we suspect another way for the Department to make it more difficult for claimants to get benefits.

Even though this looks like a more liberal process then was previously available, we seriously doubt that VA would design a system that would tie down more resources than the previous appeals process. We will discuss in more detail further on why I believe this system is actually more restrictive than under the previous rules, even though it does not appear to be so. I believe VA knew exactly what they were designing. They made it so it would take up less time and therefore use fewer VA resources.

Significant Changes to the Previous Claims Processing Rules

• 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 only 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

VA has now created a special gateway for submitting new evidence through a supplemental claim. You cannot get around going through this gate by submitting evidence in any other way. You can submit evidence without using a supplemental application, and that evidence will be included under your name in VBMS, but it will not be made part of the claim file record. It will not be considered when a decision is made unless the supplemental application is actually submitted or an NOD is filed.

Under the old rules, you could submit new evidence at any time during the claims process and even request a regional office hearing. Adjudicators were obligated to look at your new evidence and if they felt that it was new and material, they would be obligated under duty to assist to develop for that new evidence and render a new decision. You also had one more shot at getting a new decision which was in the regulations. You could file a notice of disagreement and request a decision review officer hearing with that request and VA was obligated to take a fresh look at all of your evidence and render a new decision. This was an option whether You submitted new evidence or not. This is not available under the new rules.

Under the new rules, you can only request a regional office hearing in conjunction with a supplemental claim and only prior to a decision on that new evidence. This new process is much more restrictive than the old process.

Theoretically, any number of supplemental claims can be filed within one year of any notice of decision including a decision by the board of veterans appeals as long as that evidence is new and relevant. This appears to be a very liberal policy change. Theoretically you could recycle your claim between supplemental claims, requests for higher-level review and requests for the board of veterans appeals almost indefinitely as long as you initiated the actions within 1 of the prior decision.

I don't think that VA intended this to happen. The chokepoint for all of this is the supplemental claim gateway. Without new and relevant evidence, you get one shot at the higher-level review and one shot at the board and that's it. Here's where I believe the new system punishes the claimant. Any new evidence goes back to the original adjudicator. If that adjudicator is already prejudiced towards your claim which we find happens more often than not, your new evidence will be rejected. The prior notice of decision will now stand. As a result, you are now stuck with only two options for a potential new decision. I believe that this scenario will likely happen more often than not and it is more restrictive than the old system. Your success revolves entirely around the attitude of one key person, the original adjudicator of the claim. VA has now created a special gateway for submitting new evidence through a supplemental claim. You cannot get around going through this gate by submitting evidence in any other way. You can submit evidence without using a supplemental application, and that evidence will be included under your name in VBMS, but it will not be made part of the claim file record. It will not be considered when a decision is made unless the supplemental application is actually submitted or an NOD is filed.

Under the old rules, you could submit new evidence at any time during the claims process and even request a regional office hearing. Adjudicators were obligated to look at your new evidence and if they felt that it was new and material, they would be obligated under duty to assist to develop for that new evidence and render a new decision. You also had one more shot at getting a new decision which was in the regulations. You could file a notice of disagreement and request a decision review officer hearing with that request and VA was obligated to take a fresh look at all of your evidence and render a new decision. This was an option whether You submitted new evidence or not. This is not available under the new rules.

Under the new rules, you can only request a regional office hearing in conjunction with a supplemental claim and only prior to a decision on that new evidence. This new process is much more restrictive than the old process.

Theoretically, any number of supplemental claims can be filed within one year of any notice of decision including a decision by the board of veterans appeals as long as that evidence is new and relevant. This appears to be a very liberal policy change. Theoretically you could recycle your claim between supplemental claims, requests for higher-level review and requests for the board of veterans appeals almost indefinitely as long as you initiated the actions within 1 of the prior decision.

I don't think that VA intended this to happen. The chokepoint for all of this is the supplemental claim gateway. Without new and relevant evidence, you get one shot at the higher-level review and one shot at the board and that's it. Here's where I believe the new system punishes the claimant. Any new evidence goes back to the original adjudicator. If that adjudicator is already prejudiced towards your claim which we find happens more often than not, your new evidence will be rejected. The prior notice of decision will now stand. As a result, you are now stuck with only two options for a potential new decision. I believe that this scenario will likely happen more often than not and it is more restrictive than the old system. Your success revolves entirely around the attitude of one key person, the original adjudicator of the claim. One problem we have encountered with many claims whether this is the new system or the old system is that even though we have submitted new evidence, we have found that if the evidence is complex and there is a lot of it, adjudicators won't understand the claim and will avoid examining the evidence. They will reject it on the basis that it is not new and relevant simply because of their prejudice due to their lack of comprehension.

Please refer to the table of contents in the top right column of this page for more topics on Unfavorable Decisions.

Find Help in Your Area · Veterans Benefits · Resources · Contact Us