I was running into somewhat of a pickle on the 20th of February. With the inauguration of the new RAMP program (aka Appeals Modernization Act or PL 155-15), I was in a quandary as to what to do. I dutifully read Chris Attig’s thesis on which VA form to use but had to face this controversy on my own. I had a client whom I filed a supplemental claim for (loss of use of the upper extremities) on Saturday-well past the cutoff date for legacy appeals. This put me into the new program with that loaded moniker “Appeals Modernization Act”. That’s like military rations. Remember the misnomer (and three lies in one) of MREs? Meals as defined by whom? Ready as in “some preparation required” and Eat as in questionable cuisine versus high quality dog food. We used to sit around in Southeast Asia in the evenings idly conjecturing on what the “C” in c-rations stood for. Cardboard, contaminated and a few other sobriquets came to mind. I once almost opened and ate my personal favorite-canned peaches- until someone noted that the can was swollen and misshapen. Baaaaad idea- as in ptomaine poisoning. Gosh. What happened to safety in canning? The peaches were only eighteen years old. I’d eaten many with a ‘born on’ date of 1952. This one was 1956.
As with anything you do in VAland, it pays to read all the literature VA mails you. Gone are our old friends the VAF 21-526b and the newer VAF 21-0958-after February 14th. Yeppers. You no longer file a notice of disagreement (NOD) on a VA Form 21-0958… well, that is, if you got the decision before February 14th , 2019, yes you do..VA quit work on the 14th and began again on the 19th so any decision on or after February 19th fall into the new AMA system. The use of the 0958 ceased on February 14th, 2019 at midnight for what was then RAMP. Confused yet? You now have what appears to be two 21-0958-like choices. In reality, the truth is you are going to be funneled into two equally distasteful scenarios. Either one is a poor fit compared to the old method. But first, let’s look at the demise of our venerable VA Form 21-526b.
The New 526EZ as a Initial Supplemental Claim
At first glance, as Mr. Attig pointed out, you have to file another 21-526EZ in its stead because the 526b is no longer valid or recognized by VA. Talk about a time waster. If VA can’t find their ass with a methane detector as it is, what hope do we have they will be able to “construe” your intent using a 526EZ refiling as a “supplemental brand new claim’ (which is inextricably intertwined) with your pending claim? I can see your earlier assigned effective date of claim going down the drain immediately. It will take six months of haggling to correct it. Meanwhile, while it’s in contention, your claim goes nowhere. Remember that intent to file you put in last July 2018? Gone with the wind, Cowboy. Why, you just asked VA to reopen it last week with your new 526EZ. VA assumes you are abandoning the original filing and asking for a new reopening. Screw July ’18, dude. You clearly and unmistakably asked VA to start over. VSOs do this fairly regularly to speed up a NOD. In essence, you just abandoned the present claim and opted in to a new, Fully Developed Claim (FDC) to avoid that 24-month delay, a new denial and a SOC. Hoo, doggies. Welcome to the new AMA, Jose. Remember the Who song “Won’t Get Fooled Again”? Meet the new boss. Same as the old boss.
Phase II-the New “NOD” Format
The Supplemental Claim Path
The only thing that changed on February 19th, 2019 was VA’s introduction of three new forms- the VAFs 20-0995, the 20-0996 and the 10182. They also finally opened the path promised us a year ago to go directly from a denial at your local Fort Fumble to the BVA. This essentially is all that has transpired. RAMP and Legacy closed down on February 14th. A week went by and now we have the AMA. As most know, VA is fond of rebranding their products to make it look as though they have magically reinvented the wheel as we know it. I remember back in the 90s when McDonnell Douglas’ DC-9s began having troubles staying airborne. The repair order was simple-rebrand it as the MD 80. Poof. Gone was the onus of a problem aircraft and all the negative PR. It simply metamorphosed into a butterfly with a new name. As you will read below, this is exactly what is afoot. But worse, there’s a subtle difference between the legacy system and the new RAMP that does not portend well.
The duty to assist has taken a mortal blow. I speak of our first newly developed Appeals Management Act -AMA for short- VA Form 20-0995. Read the instructions below that accompany the new form and note that you now have to provide “new and relevant” evidence to continue your notice of disagreement. In the old legacy system, you could simply file your VAF 21-0958 NOD without any new evidence-material, relevant or otherwise- and complain of whatever inequity they had visited on you without the submission of new evidence to buttress (and justify) your disagreement. VA says switching the term ‘relevant’ for ‘material’ is merely an upgraded semantic reality. They assure us the terms are interchangeable. ‘Relevant’ is simply more 21st Century in VA’s mind and won’t confuse low-intelligence Veterans. If so, why the need for an update? We’ve managed to stumble through this process since the War of 1812 without any semantic confusion. We shall see. There’s far more here than meets the eye as I point out. Summed up, to file your NOD, you need something new that VA has never seen before. If you have nothing new, the default setting is the new Higher Level of Review (HLR) lane. It doesn’t pass my smell test as being “modernized”. It smacks of a lack of due process. It reeks of a failure in the duty to assist. You can’t ask VA to go back to a VA hospital in West LA to retrieve ‘new and relevant’ evidence. No sir. Welcome to the new VA-inspired Fox TV series-Roadtrip…with children. You get in your car, drive to LA and get it yourself. Duty to assist? We don’t have no stinkin’ duty to assist.
I had you all going there for a spell. No, if you tell VA precisely where these records are at which VA hospital/medical clinic/psychiatric ward or other private provider, they’ll go get them. The kicker in the small print says they won’t pay for them. Obamacare started a huge new industry of records reproduction providers. VA isn’t going to pay Franciscan Health $150 for a complete, unredacted set of your medrecs so you’re doomed to failure by presuming they will. But, as I said, you can go to back there and get them yourself or figure out how to get them mailed to you.
The Higher Level of Review (HLR) Path
I fear the new HLR appeals track many of you Veterans are soon going to end up taking by default. Not everyone has a reservoir of endless new and relevant evidence to delve into and present to VA. Remember the VA admonishes us to submit everything we have to them at the beginning. This is akin to asking for a Decision Review Officer review (the old DRO review)-with the notable difference that you are going to attempt to argue for a favorable decision with nary a shred of new evidence. Of course, if you suddenly find you have new and relevant evidence that might hope to convince her/him, you can’t opt out of the HLR path and switch over to the supplemental path! I have yet to see a favorable DRO review without some new exculpatory evidence that will sway your rater into granting your claim. I make exceptions for CUE claims if you have a 38 CFR cite like §3.951 that is unequivocal. Twenty years cannot be construed otherwise. With that said, I had a Vet with 27-year protected claim reduced from 20 to 0% after a DRO review. I even called the DRO in Houston and told her what was going on. She said thanks and pushed the “Rating Decision Complete” button. That’s the new HLR reality.
Essentially, a Higher Level of Review (HLR) is nothing more than a new decision made by anyone higher (in GS rating) than the gomer who did your initial rating denial. How’s that for semantic sleight of hand? It certainly does not confer on you the former legacy model of rating by a true RVSR or DRO with much more experience. It might be (and probably will be) that you’re going to get that HLR from a GS-12, step 8 VSR rather than the GS-12, step 2 VSR who did it the first time. In any event, it’s going to be far less than a true HLR with a GS-13 step 5 regardless of what that HLR moniker implies. This is what many experienced litigators call the “What part of ‘no’ is it you don’t understand?” VA attitude. HLR opens up vast ratings resources for waaaay more VA raters to pretend to be more intelligent and versed in the machinations of VA law. This is the ‘new’ way VA is clearing out the backlog of DRO reviews. Everybody dresses up like a DRO and begins rating your claims like one. Bingo. No more backlog. Well, no more backlog at your local Fort Fumble, anyway. Keep in mind, also, that VA took 10 (count ’em- ten) Regional offices offline- out of the business of rating claims and appeals. Their production was focused only on RAMP appeals until February 14th. That was a pretty light workload for 3,000 raters because very few of you “opted in” to RAMP. Things will pick up now that the AMA is the only game in town. Remember, RAMP and Legacy are now finished. There is no RAMP opt-in. Legacy is gone with the wind. The only game in town is now the AMA.
Boiled down to its essence, everyone above a GS-12 step 5 is now essentially a de facto designated HLR reviewer and that’s all she wrote. I can’t begin to count how many pissed off Vets who suddenly came to the realization that switching over to RAMP last summer garnered them nothing more than an expedited denial by an inexperienced reviewer. The downside was that they had to sign their legacy appeals path away and are (prematurely) permanently stuck in the AMA with no exit. Granted, that is all water under the RAMP bridge now as of February 19th, but opting in to the earlier HLR path mistakenly dissuaded them from staying in the legacy system or choosing to submit new and ‘relevant’ evidence under the Supplemental claims path. Their only option after an HLR denial is to take the long road to a BVA-expedited AMA appeal, submit that new independent medical opinion they neglected to obtain and wait all over at the BVA for what they perceived earlier as the pronto repair order for a two-year wait locally. Can you say bait and switch?
The Transition From Old NOD to New NOD
If you aren’t lost yet, hold on. If you are still in the old, original Legacy system, and recently got a decision but have not yet filed a NOD, you will continue to use the old VAF 21-0958. You will have to wait for a grant or a denial and the issuance of a SOC or SSOC in order to opt into the new AMA system. At that time you would logically choose the Board of Veterans Appeals option and get the hell out of your local Funhouse.
The New AMA BVA NOD Path
This reform is now essentially the most important new arrow in a Veteran’s legal quiver. I intend to use it extensively for all my claims- most especially CUE claims. Yes. I’m a sucker. Many of you come to me with really egregious examples of getting screwed back in 1970. You could have been creamed by a satchel charge or a 60mm mortar like Butch Long of LZ Cork fame and been given a 10% “gift” for a moderate SFW wound from your magnanimous ratings board at the Puzzle Palace in Whacko Texas. Whereas, in reality, you took SFWs in 8 muscle groups and the records are unequivocal this was the case. In Butch’s case. they solved this in 1970 by avoiding going back to St. Louis and getting his STRs from the NPRC. How his records avoided the Friday the 13th July 1973 barbecue was pure luck. Here’s the info on the new BVA direct NOD procedure. It’s the only substantial reform I can see that is positive. The other two above can only be seen as regressive measures to limit our ability to fight our denials equitably.
And be careful. You don’t send a BVA NOD Appeal to Janesville, Wisconsin 53547. No sir. You have to mail it directly to the Board of Appeals or it will probably end up in the dead letter office.
Here’s the address:
Board of Veterans Appeals
P.O. Box 27063
Wash. D.C. 20038
or fax 844-678-8979
And here are the instructions that come with the BVA NOD path.
There’s a lot of debate on just how “expedited” the BVA process will be. Many BVA staff attorneys have been burdened with far too heavy an appeals load and suffer from burnout. Worse, the BVA taskmasters all but advocate their staff ignore de novo review and ‘gitterdone’- and be quick about it, mind you. I can’t imagine being sold down the river like this. The Big Six VSOs (DAV, VFW, VVA etc.) all pushed this AMA/RAMP crap hard. Congress, in 1989, via the VJRA specifically granted us “one review on appeal”. To me that ensures an unbiased, fair, de novo review-not the new ‘in by 10, out by 3’ Chinese laundry approach.
Speed of adjudications, and by extension, appeals, should emphasize correctness. As it stands, 67% of all decisions at the agency level in Regional Offices are riddled with errors. The CAVC implies it’s as high as 74%. Speeding up the process almost guarantees even more errors. The reason is simple. Let’s say you live in Seattle. The National Work Queue (NWQ) instituted several years ago created a miasma of fustercluck mini-adjudications. A claim is dumped into a Bingo Ball hopper where a rater in Sioux Falls, S.D. pulls it out and checks to see if you were boots on the ground in Vietnam to ensure your entitlement to Agent Orange claims. S/he promptly throws it back in the hopper as ineligible. Your 214 did not specifically say ‘stationed in RVN’. You could have a Purple Heart listed on it and still lose. Another rater in Jackson, Mississippi pulls it out a month later and schedules you for a c&p exam- hopefully in Seattle- based on your qualifying under a “direct” Combee path. I’ve heard of Vets being asked to travel to Portland, Oregon to attend the c&p. After the results come back 60 days later, another rater in San Diego pulls it out of the NWQ and anoints it as RFD (ready for decision). Note the San Diego rater doesn’t actually do the rating. S/he merely certifies it as ready. Several months later, another rocket scientist in Winston Salem, N.C. will state there was no evidence you had served in ARPAC. You file a NOD with evidence of your having “stepped foot on the landmass of Vietnam” (so much for VA comprehension of the English language). 26 months later , you get the 10% rating for prostate cancer as you are recovering from the prostate surgery that removed the objectionable gland. You file a new 0996 for the 100% temporary surgery rating and then the 40% rating due you and wait another 125 days (if you believe VA). If you’re lucky and the prostate cancer doesn’t metastasize into your bones and kill you, you might survive long enough to enjoy the money. Or… they give you the 40% but deny the 100% temp. rating for the surgery and you have to appeal to the BVA. The error possibilities are endless. That’s how the M 21 was constructed.
Haste Makes Waste
The RAMP cum AMA, coming on the heels of the NWQ and the FDC, is an ugly harbinger of things to come. VA was screwing this up before the advent of the FDC without any trouble. With the advent of RAMP last year, they proposed going to lightspeed. As of Tuesday the 19th of February, I see nothing to prevent a 98% error rate. I will reserve judgement until I begin receiving BVA decisions under the new program. If the error rate at the AOJ level was any indication after the introduction of the 125-day, 98% FDC-guaranteed accuracy rate, the AMA may prove to be an unmitigated disaster.
How the BVA hopes to create a streamlined Fully Developed Appeal process that eliminates a 3-7 year delay is the million dollar question. I, for one, am an undying optimist but reserve judgement until all the facts are in and a track record is established. How VASEC Robert “Call me Bob 2” Wilkie intends to generate more decisions faster with the exact same number of Veterans Law Judges (VLJs) should be intriguing. If you believe the BVA bean counters, we’re talking 137,383 backlogged (docketed) appeals in their refrigerator and an AMA avalanche building up at Regional Offices across the Fruited Plain. If VLJs are cranking out 2.5 decisions a day as we speak, explain how a new, expedited BVA appeals process that permits the exact same BVA hearing and submission of new evidence is going to be the panacea to the backlog. Anyone? How about we temporarily promote all the BVA staff attorneys to Brevet Veterans Law Judges and let them adjudicate their brains out until there are no more appeals pending. Problem solved. You can see they’re also going to have to expand the CAVC from 9 judges to 39 if they do. VA doesn’t seem to understand the concept of eighteen years of continuous war and a heaping helping of Agent Orange and Burn pits. The present dilemma is the lump-in-the-python problem they’ve created. The FDC procedure simply pawed it off on the BVA and resulted in moving the lump up to the appellate level. It won’t be long before it appears on the front doorstep of the CAVC. What next? An AMA for the CAVC?
Remember, folks. I’m the one that predicted this insanity almost four years before it happened. Granted, it was more tongue in cheek back then-but not by far.
And that’s all I’m gonna say about that.
As usual, I thank Army Vet Dennis for the following humor he provides us so regularly.