The VA claims process continues to recede into a “Not It!” game. A rater will struggle to find some procedural stone left unturned and put the claim back in the National Work Queue (NWQ) hopper. Alternately, your claim becomes a figurative game of Keep Away where it is dispatched from one VARO to another every three days and suddenly sent back into the “499” Purgatory for weeks for a “further development” to make it once again Ready for Decision (RFD). On Ebenefits@VA.gov, that must look like imminent completion only to see two more miles tacked on to the claims tunnel. In that respect, eBenefits is about as reliable as a weatherman.
From the Fort Sam Houston Memorial Veterans Service Center in the town of its namesake, we run into the ‘Not It!’ krewe ratings gurus. A simple request for SMC L for Aid and Attendance of another turns into, first, a denial which can only be seen as biased. After finding no way to overcome this roadblock, I withdrew the old claim for A&A and refiled it as a new reopen. I withdrew a half a dozen other claims for things that will never kill you. When you have two 100% scheduler ratings and numerous others which add up to almost another 100% in combined ratings, it’s generally an indicator that the Vet ate too much asbestos on the ship he served on. VA conceded the asbestos with the two 100%ers but disagrees with the myriad secondaries ratings. COPD, asthma, OSA, MDD, needs a fiduciary, narcolepsy and his wife quit work to take care of him. SMC L for A&A? Hellllllll no.
So, after Winston Salem denied, I refiled. When you are pursuing SMC L and on up, it’s due and owing the day you can prove your entitlement. If I lose and immediately refile for the same thing, it’s a brand new reopen. If we win, we begin the argument of when he first needed A&A. This time Buffalo pulled it out of the NWQ hopper and re-re- reviewed it just for me-and agreed it was a “clean” denial. They sent it back out for a new opinion on all the mental aspects equaling a need for A&A and still came up with a denial.
All this VA poker got us on the other side of the February 19th, 2019 inception of the new Appeals Modernization Act or what has now been named the AMA. Prior to the February 14th, 2019 cutoff date, the RAMP option had no provision for the new filing of your NOD at the BVA. Think about this folks. If your NOD goes to the BVA and is reviewed by real juris doctorate attorneys, you’re getting a real shot at justice. The M 21 Magic 8 Ball is dang near always going to come up denied or lowball unless you’re missing parts and pieces. In certain claims, you will never prevail at the local level anyway. SMC is invariably that way. So are HCV jetgun claims. VA refuses to give up without a fight to the BVA. With the new AMA, you get to Advance to BVA Boardwalk. It’s like you get a bye on the 16-month wait for the SOC/ VA 9 dance and another six to eight months to get it VAF 8 certified and off to the top shelf of the BVA closet for a few years. Yes. I know. VA insists this might be as low as 4 months. I seem to remember the rollout of the FDC back in 2013. 98% accuracy, 125 days. If you like your VA doctor, you get to keep your VA doctor. The BVA is secretly praying all you Vets don’t take the BVA route as it will constipate an already overburdened appeals system.
I won’t touch the Higher Level of Review (HLR) Lane. It’s pointless. You could arrive with a Buddy letter from Jesus Christ Himself and notarized by none other than the Holy Ghost… and still lose at the HLR. Worse, it’s not going to be adjudicated by a GS 12-13 DRO. No sirreee, Bob. What have you been smoking? The term “Higher Level of Review” is all relative. If it was originally done by a green GS-9 step 4, “higher level” would be deemed the Legalzoom.com GS -10 step 1 who hired in last fall from GEICO. He did auto claims there for 3 years and saved them lots of money. His dad is probably a Congressman if you’re wondering.
The Supplemental Claims Lane (SCL) will be a necessary evil to get a claim reopened. But again, VA is merely going to use this opportunity to poke holes in your new and relevant evidence. Right off the top, who’s the arbiter of what constitutes “new and relevant”? Think about this. It’s like tennis. You serve a claim to them. It bounces and they wallop back a solid denial. You return the volley and file that new and relevant evidence to permit a second look at it. Bye-bye new and material evidence. You cannot present that at the BVA later. This gives VA oodles of time to figure out how to write up the denial and concoct some Hoodoo Voodoo gibberish in the denial. You now need some new and relevant hand grenades pronto. Otherwise this is headed straight to jail and you lose a turn. Which is, incidentally, about where you would have (and could have) filed your NOD and appealed to the BVA anyway. It virtually eliminates a SOC, VA 9 and the VA Certification to the BVA.
If you lose at the BVA, you just run back to the Regional Office and refile a VAF 20-0995 and submit new and relevant evidence. The important thing to always keep foremost in your VA claims/appeal plans is to always hold back some N&R evidence in the event you may need it. We’re in a whole new adjudications world that benefits us greatly assuming the new parameters are well-funded and well-staffed. If there are not enough warm bodies to dissolve the megamillion appeals still waiting, this may not fly. But when you think about it, hiring about 2000 GS-14 staff attorneys and using them like VLJs 24/7/365 just might eradicate the horrendous backlog. I, for one, am optimistic.