VIDEO: Is the Appeals Modernization Act Better for Veterans? 

“Today, we’re going to discuss some of the differences, advantages, and disadvantages between the old legacy appeals system for disability compensation claims and the Appeals Modernization Act, or AMA system.” 

Steps in the Legacy System 

“Let’s start off talking about the legacy system. 

“In the old legacy system, you file a claim, you sometimes get an exam and sometimes you don’t get an exam, and then you get a rating decision. Then you file a notice of disagreement, and after a period of time, you get what’s called a statement of the case, or an SOC. After your SOC, you file a Form 9, and then after the Form 9, you get a certification letter from the Board of Veterans Appeals, also known as the BVA (Board of Veterans’ Appeals). Then, they’ll tell you that you’ve been docketed, which means they’re getting ready to decide your case, and you’ll get a BVA decision. 

“That was the old system. Claim, rating decision, notice of disagreement appeal, statement of the case, Form 9, which is an appeal to the board, and then the board sends you a couple of letters, your certification and docket, and you go to the board, and they give you a decision.” 

What is special about the Appeals and Modernization Act (AMA)? 

“The big deal with the Appeals Modernization Act, the AMA, is that there’s an opportunity to preserve your effective date. The biggest difference is that there’s no statement of the case. There is no Form 9 that you have to file to the board. The forms are different. 

“This is primarily about weighing whether you should leave the legacy system, stay in the legacy system, or move into the AMA system. So, it’s not as simple as ‘if this, you do this,’ and ‘if that, you do that.’ There are a lot of moving parts, especially if you have more than one claim open. 

“Let’s go through a quick wrap-up of the AMA system. In AMA, you’ve got three lanes. You do your initial application, sometimes you get an exam, sometimes you don’t. Then you get a rating decision. The VA regional office will make a decision on your claim, and then at that point, if you want to appeal your rating decision, it’s time to pick a lane, and you have three lanes you can choose from.” 

The three lanes to appeal your VA claim under AMA 

“There is what’s known as the supplemental claim lane, which is handled at the VA regional office level, and it’s a line-level decision. Sometimes you get an exam, sometimes you don’t. 

“The second one is higher-level review, also known as an HLR, and that’s also handled by the VA regional office, but that is a closed record. So, it’s only considering the evidence that was of record as of that rating decision. You can’t add new stuff to that. If you want to add new stuff and have the regional office consider it, you have to go with a supplemental claim.  

“Then there’s a third option, and there’s three options underneath that, if that wasn’t confusing enough. We have the AMA NOD, a whole bunch of letters that mean Appeals Modernization Act Notice of Disagreement. What this essentially does is it forwards the case to an administrative law judge at the Board of Veterans Appeals. So, you’re taking this out of the hands of the regional office, and you’re sending it to an administrative law judge, a trained lawyer, to take a look at this, weigh your evidence, and give you a decision. 

“The first lane you can choose underneath the AMA option, the AMA NOD option, where you’re sending it to a BVA judge, is the hearing lane. You have a right to be heard. You can appeal to this lane, and you can appear physically at a hearing. And there are also virtual hearing options that you have available.  

“The second option when you file an AMA NOD is to select the direct lane. The direct lane is, again, similar to the HLR, the higher-level review. No new evidence is allowed that has not previously been considered.  

“There is an option for you to send new evidence directly to a judge, and that’s your third option. That’s called the evidence lane. The evidence lane is where you submit new evidence that has not previously been considered.” 

Which is better, AMA or legacy? 

“That depends on a lot.  

“AMA was initially promised to streamline the process of VA compensation claims. There was a lot of outrage related to delays. It used to take a lot of time to get a statement of the case.  

“So, think back to the timeline I told you about. You file a claim, you get your initial rating decision, and then within a year, you have to file your notice of disagreement. This is in the legacy system. Then you might wait a year and a half, two, two and a half years, or even longer for a statement of the case to show up. It would just sit at the regional office until they’re ready to send you your notice of the decision, which is oftentimes a denial, and then your appeal rights would be attached to it. Unfortunately, we saw a lot of veterans pass away or who weren’t properly notified that the SOC had been issued. 

“Sometimes the SOC was mailed to the wrong address, sent to a previous address, or it was transmitted and there was no address on it at all. We don’t know where some of these SOCs went. There were a lot of problems with the legacy system.  

“AMA promised to fix some of that and streamline it, simplify it, so that you don’t have all of these different lengths of deadlines for all of these different appeal documents. You don’t have all of these layered levels of review just to get to a judge. 

“Previously, the problem was that you would have to wait forever on your SOC before you even have the right to file to get in front of a judge and before you can file that Form 9. Previously, you could not get in front of a judge until you filed the Form 9. Now it’s not like that. You get your rating decision and boom, you can file the AMA NOD straight to the board and you can go right to a judge, either closed record, you could do a hearing, or you can file in the evidence lane.” 

What happened with veterans’ appeals as the AMA became reality? 

“The AMA was promised to streamline this process, but remember, this is the VA. It hasn’t really lived up to the hype.  

“Initially, when the AMA was first launched, there weren’t a lot of claims being adjudicated. There weren’t a lot of claims that were pending within the AMA process. They rolled out the RAMP program and some of you probably got those RAMP letters saying, ‘Hey, we’ve got this new-fangled system. We want you to try this out.’ And understandably, some folks were skittish about being the guinea pigs on this new legislative framework. Our office wanted to see a little bit more of a track record from the VA in particular before we agreed to move into the AMA. We were a little bit fearful. And I think the VA has earned some of that mistrust from veterans based on their inability to get it right for so many people. 

“The VA previously said they’d be prioritizing legacy claims. So, the legacy claims didn’t go away. You still have legacy claims, they’re still in the legacy system. They’re still being pushed through. And then you have the AMA claims that are being pushed through within that legislative framework. In 2020, we saw a lot of these legacy claims move. A lot of them. In 2020, we saw a lot of these claims resolved, but that’s not the same as being awarded. They were just decided. 

“So, they were moved on to the next desk. You got some notice in the mail that said you were either awarded or denied, and here are your options. If you’re in legacy, you get a rating decision and you file the NOD, and then you wait for your statement of the case.  

“Legacy cases are still moving, just not as fast right now — not like they were last year, in our experience. Initially, when the AMA framework first came out, we were really seeing some movement in some of these lanes. Well, now there are a lot more veterans that are in the AMA, and there’s just a lot more work to be done by the VA. So again, we’re not seeing those move nearly as fast.  

“The promises of faster decisions under the AMA appear to be drying up. The backlog is growing, whereas the backlog used to be at the SOC level, and you’re waiting on the regional office to get your chance to jump in front of a judge and present your case. Now it’s primarily at the board. The regional offices are still swamped with a lot of work, but you’re also seeing a lot of cases that would, in the legacy system, be waiting on a statement of the case or skipping that step. The regional offices don’t have to do that now. 

“So, we’re just waiting on the board. They were just forwarded right to the board. And these folks at the BVA, these administrative law judges, there’s just a lot of work to be done. There’s a lot that they’re trying to clean up from the regional offices. There’s a lot of decisions that need to be made. There’s a ton of evidence that needs to be reviewed, and we’re not sure when these timelines are going to change, if ever. But all of these things impact whether you stay in legacy or you move to AMA.  

“Legacy does contain a big risk. If you stay in legacy, you may get a faster decision. It might not be the decision you want, especially if you’re unrepresented. In legacy, these are final decisions after the BVA decides them.  

“Now, you still have your CAVC, your Court of Appeals for Veterans Claims and appellate remedies. You still have your appeal rights to the next level, but if you lose, and if you either don’t appeal or you lose an appeal at the higher level, that is final. The only way to revisit that is to file a new claim. If you go back to our videos where we talk about effective dates, remember, your effective date is later the two. You’ve got the date entitlement arose, or the date of the claim.  

“If you’re in a position where you have to refile, even if you were diagnosed in 1998, you went through a whole appeals process and you lost because you didn’t have enough evidence, the VA didn’t weigh things correctly, and let’s say you didn’t appeal to the next level and your period lapsed unfortunately, and you have to refile, that’s going to be your effective date. All of that previous adjudication is going to be out the window. 

“In AMA, the Appeals Modernization Act, you can continue that same claim, even after a BVA denial, with a supplemental claim. The only thing is, you need to include new relevant evidence. So, it needs to be new relevant evidence that hasn’t been weighed before. We call that in NRE in office. That’s one of our acronym terms that we use. As long as you’re advancing something new about something that you’ve been arguing, this condition, this issue that you’ve been arguing, then the VA regional office has to start you over again with an opportunity to reach back to that older effective date.” 

Considerations for moving from legacy to AMA VA claims 

“When I am working cases, the biggest consideration is chronic and terminal illness. If you do not have much time, you are looking for a decision. You’re looking for a decision yesterday. If you stay in legacy, you are somewhat more likely to receive a decision faster. Again, we can’t predict exactly when that decision will occur. We do see legacy cases, even though they’ve slowed down a bit, AMA slowed down a bit, we see them moving faster than AMA most of the time.  

“Another consideration is financial hardship and homelessness. If you’re a veteran or if you know a veteran who is living on the street, this is a dire situation. This is a crisis situation, and a faster decision is definitely advantageous.  

“But all of these are merely cogs in the wheel. They’re just pieces of the decision. It really is decision calculus, because you have to weigh all of these things against what’s in the file. What does the evidence say? What have the previous decisions from the BVA or from the regional office said? Have there been any experts that have submitted reports? Has there been expert testimony? Has there been hearing testimony?  

“There’s a lot of moving pieces where you’re really trying to hedge risk from multiple different angles. And it becomes very difficult for a veteran to assess all of that, digest everything in the C-file, digest what all of these doctors and psychiatrists and psychologists have said, maybe vocational experts in some cases, and make a decision for themselves without any help and hope that it’s the right one. 

“Another thing is where you are in your appeal. That matters. So, whether your legacy claim is pending before the board, let’s say you’ve gotten a certification letter, you’ve gotten a docket letter, the board is ready to look at it. Whether you’re still for whatever reason pending a statement of the case, some of those are still pending out there.  

“There’s not nearly as many as there was before AMA went live, but they are out there. And then where’s your AMA lane? If you have multiple lanes of appeals open, did you just file? Have you been submitting supplemental claims for a couple of years now? Have you had multiple evidence submissions? Have you submitted an HLR? Are you waiting on another rating decision from your higher-level review?  

“All of these impact whether you move something out of legacy into AMA. And the timeline is affected, the strength of your evidence impacts that decision, and your likelihood of winning based on what you have. 

“Another thing that impacts that is the availability of expert testimony. Do you have a doctor or a psychologist that can go to bat for you, and that can review your evidence and give a good, sound opinion about what’s going on in your life? If that’s the case and you can get this evidence together like we do for our clients, then that significantly impacts whether you have new evidence to submit. It significantly impacts whether you may want the regional office to take another look at your case.” 

How Woods and Woods can help 

“All of these are reasons why you’d be wise to seek help when making these decisions. These decisions are difficult for professionals who handle these claims every day, day in and day out. There are so many moving parts that can impact this decision and can impact your ability to win or lose. And it can significantly stretch your timeline if you move a claim from legacy into AMA and it’s not the right claim to do that on.  

“In some cases, it makes sense, but it truly is a case-by-case analysis. And we really need to see your file. We really need to see your procedural history. We need to see all of your decisions and make a good sound decision for you, so that we’re giving you the best chance to win.  

“My name is Zack Evans. I work with Woods and Woods attorneys in Evansville. Give us a call and let Woods and Woods help you navigate.”