There is no denying that the VA appeals process is in need of reform. As of 2016, veterans wait, on average, four and a half years for their first decision from the Board of Veteran Appeals.
In an attempt to mitigate these wait times Congress recently passed the Appeals Modernization Act of 2017 (AMA). VA is currently working on the regulatory framework, and the full implementation of the law will not happen until 2019 at the earliest, though certain appellants are already being allowed to opt in to this system through the Rapid Appeals Modernization Process or RAMP.
The Appeals Modernization Act will substantially change the appeals process. At present, all appeals are processed in the same way, whether the veteran has a complicated legal issue, or simply needs to submit additional evidence. Under the AMA, appeals will be divided into one of three tracks or lanes, which are intended to allow the more complicated legal issues to be directed to the Board of Veterans Appeals while the simpler issues will be handled at local Regional Offices. VA will also be required to provide detailed rating decisions, and will have to report to Congress on a wide variety of metrics that are hoped to provide greater insight into the causes of inefficiency in the system.
While there is reason to hope that the modernization of the appeals system will improve wait times, optimism is tempered by questions as to issues unaddressed by the new law. The AMA effectively eliminates some of VA’s more veteran friendly policies. For example, VA’s Duty to Assist veterans with obtaining evidence will be significantly narrowed. Additionally, Veterans will now have a shorter window within which to submit new evidence, as the AMA requires veterans and their advocates to be prepared to make their case within 90 days of filing an appeal. By itself this is not problematic, but the AMA’s failure to account for (and VA’s silence as to) long-standing inefficiencies foreshadows tremendous, potential problems. For example, it currently takes VA weeks to update their systems to reflect that a veteran has a new representative or VSO. Similarly, it takes approximately one year for VA to provide a copy of the veteran’s claims file. Unless these delays are eliminated, it will be difficult, if not impossible, to prepare an argument for appeal within 90 days.
Even more concerning is the failure to address VA’s focus on performance measures upon which bonuses are based. Historically, VA’s interest in meeting such performance measures (thus allowing its employees to earn bonus compensation) causes the agency to limit or stop work on appeals as the end of the fiscal year approaches. During this time period the agency focuses primarily upon on meeting bonus-related performance goals. Thus far, VA has issued no public information regarding how it intends to process appeals in the expedited manner required under the AMA without also addressing the compensation incentives that drive its workforce.
Featured Image Courtesy Wikimedia Commons
This article is authored through the collaborative efforts of Shana Dunn, Travis James West, and other legal professionals at West & Dunn, a law firm dedicated to providing quality legal services and business counseling to individuals and businesses, with a particular focus on assisting veterans.
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