So Many Choices for VA Appeals! How to Choose the Right One.
By Douglas I. Friedman of Friedman Law Firm, P.C.
Tuesday, December 22, 2020
In February of 2019 the Appeals Modernization Act became law. The AMA was supposed to simplify the claims process for you. But, we believe that it did just the opposite -- the AMA is very complicated.
Under the old system, called the "legacy" system, if your application for benefits was denied, you could appeal it. Then if the appeal was denied, you could request a hearing. Each step was clear and usually all claims made at the same time would move up to the next stage together.
The AMA changed all that. Now, if your application is denied, you have five choices for an appeal. The first one is to re-file your application by providing more evidence to the VA. This is like asking the same people who denied your original application to review it again -- but with new evidence. Unless your evidence is different from the evidence they originally reviewed, chances are you will be denied again.
Another choice is to request a Higher Level Review by a more experienced VA employee. This is a good choice if you think that the original decision was just plain wrong, which it often is. The Decision Review Officer will decide whether a mistake was made below -- --; but the HLR must be based on the evidence in the file when that decision was made; you can’t submit any new evidence.
Yet another choice is to request a Hearing before a Veterans Law Judge at the Board of Veterans Appeals. This is where things get even more complicated, because there are three choices -- known as “lanes” --; at the hearing level.
In one lane you don’t get an actual hearing, or to present new evidence. All you get is a judge who reviews the VA’s decision.
In another lane, you can submit new evidence, and have a judge review it, but you don’t get an actual hearing.
In the last lane you can submit new evidence, testify at an actual hearing, and have a judge decide your case.
Each of these choices has different time expectancies, and different pros and cons. Whereas before you basically had just one choice at each step, now you have all of these.
In addition, you can choose a different appeal process for different claims. So, if you have a heart claim you might request an HLR, while for a knee claim you might choose to submit new evidence and re-file your application.
To say the least, having claims at different stages in the process can be mind-boggling. So, I usually try to bunch claims together so they proceed through the claims process in one basket, so to speak. It’s just easier for me as the attorney to address all claims in the same appeal if possible, unless there is a reason to do otherwise. I also like to have all of your claims before one decision-maker at the same time, and not have them scattered all around.
For example, if you have a heart claim and a knee claim, I would prefer that one decision-maker be aware of both claims at once, rather than having one decision-maker consider the heart claim while someone else looks at the knee claim. This is especially so when we are seeking Individual Unemployability for you. The more claims that are in that basket, the more likely you are to get IU, because the VA can consider all your conditions at once.
Different lawyers may look at the appeal process differently than as described above. But this is what has been working well for our office. If you have questions about this or any other aspect of VA disability, feel free to contact us at 205-879-3033 or LifeHealth@FriedmanFirmPC.com.
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