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VA Claims and Appeals Modernization Final Rule

VA Disability

VA Claims and Appeals Modernization Final Rule
VA Claims and Appeals Modernization Final Rule Federal Register / Vol. 84, No. 13 / Friday, January 18, 2019 / Rules and Regulations

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Veterans Appeals Improvement and Modernization Act of 2017 Referred to in this document as the AMA.

The Department of Veterans Affairs (VA) amends its claims adjudication, appeals, and Rules of Practice of the Board of Veterans’ Appeals (Board) regulations.

In addition, this rule revises VA’s regulations with respect to accreditation of attorneys, agents, and Veterans Service Organization (VSO) representatives; the standards of conduct for persons practicing before VA; and the rules governing fees for representation.

This rulemaking implements the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), which amended the procedures applicable to administrative review and appeal of VA decisions on claims for benefits, creating a new, modernized review system. Unless otherwise specified in this final rule,  VA amends its regulations applicable to all claims processed under the new review system, which generally applies where an initial VA decision on a claim is provided on or after the effective date (effective date Feb. 19, 2019) or where a claimant has elected to opt into the new review system under established procedures. For the reasons set forth in the proposed rule and in this final rule, VA is adopting the proposed rule as final, with minor changes, as explained below.

DATES: This final rule is effective February 19, 2019.

SUPPLEMENTARY INFORMATION: 

On August 10, 2018, VA published in the Federal Register (83 FR 39818) a proposed rule to implement Public Law (Pub. L.) 115– 55, the AMA. The AMA and these implementing regulations provide much-needed comprehensive reform for the legacy administrative appeals process, to help ensure that claimants receive a timely decision on review where they disagree with a VA claims adjudication. The AMA review procedures and these regulations replace the current VA appeals process with a new review process that makes sense for veterans, their advocates, VA, and stakeholders.

The statutory requirements, which Veterans Affairs implements in these regulations, provide a claimant who is not fully satisfied with the result of any review lane additional options to seek further review while preserving an effective date for benefits based upon the original filing date of the claim. For example, a claimant could go straight from an initial agency of original jurisdiction decision on a claim to an appeal to the Board. If the Board decision was not favorable, the claimant has two further options. If the Board’s decision helped the claimant understand the evidence needed to support the claim, then the claimant would have one year to submit new and relevant evidence to the agency of original jurisdiction in a supplemental claim. A claimant in this situation could instead appeal within 120 days of the Board decision to the Court of Appeals for Veterans Claims (CAVC) in accordance with CAVC rules and deadlines. Alternatively, a claimant could seek review of the initial decision by filing a supplemental claim or requesting a higher-level review in the agency of original jurisdiction, again, without any impact on the potential effective date for payment of benefits.

The differentiated lane framework required by statute and implemented in these regulations has many advantages. It provides a streamlined process that allows for early resolution of a claimant’s appeal and the lane options allow claimants to tailor the process to meet their individual needs and control their VA experience. It also enhances claimants’ rights by preserving the earliest possible effective date for an award of benefits, regardless of the option(s) they choose, as long as the claimant pursues review of a claim in any of the lanes within the established timeframes. By having a higher-level review lane within the claims process and a lane at the Board, both providing for review on only the record considered by the initial claims adjudicator, the new process provides a feedback mechanism for targeted training and improved quality in the agency of original jurisdiction.

VETERANS WHO OPT INTO RAMP RECEIVE A DECISION ON THEIR DISAGREEMENT IN AN AVERAGE OF 125 DAYS – Source: VA.gov

VETERANS WHO OPT INTO RAMP RECEIVE A DECISION ON THEIR DISAGREEMENT IN AN AVERAGE OF 125 DAYS

From VA.gov
The New Law Will:

What are the new options for review?

You have three options for review:

Option 1: Higher-level Review

Your claim is reviewed by a more senior claims adjudicator and involves:

  • A higher-level de novo review (new look) of the decision
    • No submission of new evidence allowed
  • The possibility of overturning the decision based on:
    • A difference of opinion
    • A clear and unmistakable error

The reviewer, who identifies or learns of a duty to assist error, can return the claim to the regional office for correction. You or your representative can request an informal phone call to identify specific issues. 

Option 2: A Supplemental Claim Lane

You can submit or identify new and relevant evidence to support your claim. VA will provide assistance in developing the evidence.

  • Modernize the current claims and appeals process
  • Include three review options for disagreements with decisions
  • Require improved notification of VA decisions
  • Provide earlier claim resolution
  • Ensure you receive the earliest effective date possible

Option 3: Appeal Lane for Appeals to the Board

This option allows you to appeal directly to the Board of Veterans’ Appeals. You can choose between three options: 

  • Direct review: You have no new evidence and do not want a hearing. 
  • Evidence submission: You have new evidence, but do not want a hearing.
  • Hearing: You have new evidence and want to testify before a Veterans Law Judge.

To ensure that as many claimants as possible benefit from the streamlined features of the new process, the AMA and these regulations provide opportunities for claimants and appellants in the legacy system to take advantage of the new system. Some claimants who received a decision prior to the effective date of the law and thus had a legacy appeal pending, were able to participate in the new system by way of VA’s Rapid Appeals Modernization Program (RAMP). Claimants who receive a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC) as part of a legacy appeal after the effective date of the law will also have an opportunity to opt-in to the new system.

Most of the regulatory amendments prescribed in this final rule are mandatory to comply with the law. Through careful collaboration with VA, VSOs, and other stakeholders, in enacting the AMA, Congress provided a highly detailed statutory framework for claims and appeals processing. VA is unable to alter amendments that directly implement mandatory statutory provisions. In addition to implementing mandatory requirements, VA prescribes a few interpretive or gap-filling amendments to the regulations, which are not specifically mandated by the AMA, but that VA believes are in line with the law’s goals to streamline and modernize the claims and appeals process. These amendments reduce unnecessary regulations, modernize processes, and improve services for claimants.

Interested persons were invited to submit comments to the proposed rule on or before October 9, 2018, and 29 comments were received. Those comments have been addressed according to topic in the discussion below. This final rule contains amendments to parts 3, 8, 14, 19, 20, and 21, as described in detail below.

Part 3—Adjudication

VA amends the regulations in 38 CFR part 3 as described in the section-by- section supplementary information below. These regulations govern the adjudication of claims for VA monetary benefits (e.g., compensation, pension, dependency and indemnity compensation, and burial benefits), which are administered by the VBA. These amendments apply to claims processed in the modernized review system as described in § 3.2400.

Comments Concerning § 3.1— Definitions


Public Law 115–55, section 2(a), defines ‘‘supplemental claim’’ as ‘‘a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.’’ Although it is possible to read this language as implicating both claims filed as a disagreement with a prior decision, and claims submitted due to a worsening of a condition, this dual interpretation would not be consistent with other sections of the statute. Namely, Public Law 115–55 also revised 38 U.S.C. 5108, which requires the Secretary to ‘‘readjudicate’’ a claim where ‘‘new and relevant evidence is presented or secured with respect to a supplemental claim.’’ When both sections are read together, it becomes clear that the intent of the law was to make supplemental claims only applicable to situations where a claimant disagrees with a previous VA decision and seeks review and readjudication. Accordingly, as noted in VA’s proposed regulation, VA proposed to clarify in regulation the definition of supplemental claim. VA added to the definition of ‘‘claim’’ in § 3.1(p) of the proposed rule definitions of ‘‘supplemental claim,’’ ‘‘initial claim,’’ and ‘‘claim for increase.’’

VA received six comments regarding definitions listed in § 3.1(p). Concerns centered around the definitions of initial claim (§ 3.1(p)(1)), claim for increase (§ 3.1(p)(1)(iii)), claim
(§ 3.1(p)(2)), and supplemental claim (§ 3.1(p)(2)). Several comments addressed concerns regarding the use of the term ‘‘written communication’’ in some definitions while other areas of the proposed rule referenced ‘‘written or electronic’’ communication. VA agrees with the need for clarification regarding electronic communication and revises § 3.1(p) to reflect a claim as both a written or electronic communication properly submitted on an application form prescribed by the Secretary.

Several comments raised concerns that a claim for increase was included as a type of initial claim and argued it is more appropriately considered a supplemental claim. VA includes claim for increase in the definition of an initial claim to clarify to claimants that za claim for increase is based on a change or worsening in condition or circumstance since a prior VA decision and not based on disagreement with that decision. Accordingly, VA revises proposed § 3.1(p)(1)(iii) to reflect a claim for increase as a change or worsening in condition or circumstance since a prior VA decision. One comment also expressed concern that ‘‘the VA may sometimes be overbroad in requiring supplemental claims where a veteran has not had a decision on a specific issue or disability previously.’’ VA agrees there may be confusion regarding the definition of a supplemental claim and revised § 3.2501 to clarify that a supplemental claim is based upon a disagreement with a prior VA decision.

VA revises the definition of ‘‘initial claim’’ in § 3.1(p)(1), to provide clarity concerning the term ‘‘original claim’’ in response to comments. Commenters expressed confusion between the terms ‘‘original’’ and ‘‘initial’’ based on dictionary definitions, which treat them interchangeably. VA’s revisions to § 3.1(p)(1) explain that an original claim is the first initial claim.

One commenter expressed a belief that the terms ‘‘issue’’ and ‘‘claim’’ are used interchangeably in sections of the proposed rule but defined differently. It is clear from § 3.151(c) that the term ‘‘issue’’ refers to a distinct determination of entitlement to a benefit, such as a determination of entitlement to service-connected disability compensation for a particular disability. A claim is a request for review of one or more issues. If a claim includes only one issue then the terms may appear to be used interchangeably. Accordingly, VA revises § 3.1(p) to include a reference to § 3.151(c), which defines issues within a claim.

Read the full report here

2018-28350-1


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