VA Appeals Modernization Act of 2016 and Related Bills

There are a number of bills that have been introduced both at the House and Senate to modify the procedure by which veterans or claimants can dispute a decision from the Department of Veterans Affairs [hereinafter “VA” or “DVA”].

H.R. 5620: VA Accountability First and Appeals Modernization Act of 2016 was recently passed before the House of Representatives and will be voted on at the Senate.  The link to GovTrack above assigns an 11% chance of being enacted.

A few days later, the Senate introduced the Department of Veterans Affairs Appeals Modernization Act of 2016.

The various bills differ in whether accountability and procedures for terminating and disciplining VA employees should be include or introduced as separate legislation.   There appears, however, to be some level of consensus regarding how to reform the appeals system under Title 38.  To simplify, the legislation proposes to create a three track process: (1) within a year of receiving a decision that a veteran disagrees with they can submit new and material evidence and have the claim readjudicated [similar to the somewhat ad hoc process of “reconsideration” that has been formalized in the M21-1]; (2) the veteran/claimant can formally appeal the prior decision to the local Regional Office based upon the existing record at the time of submission of appeal [similar to the current review by a Decision Review Officer sans the closed record]; or/and (3) appeal directly to the Board of Veterans’ Appeals based upon the record that exists at the time of appeal [somewhat akin to the current appeal after receiving a Statement of Case].

There are a number of issues that remain yet to be resolved.  For example, questions such as: (1) what will be the process for the current 450,000 claim backlog; (2) what will occur procedurally if a veteran submits new evidence after appealing to in track 2 (RO) or track 3 (BVA).  That said, it appears that there is consensus among Congress, the DVA, and stakeholders that a systemic change must occur to the procedures involving Agency appeals and that status quo — even for the immediate future — will lead to further backlog.

 

 

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Seth Director

About Seth Director

Over nine years of trial and appellate litigation experience at the Department of Justice and the Army Judge Advocate General Corps where I frequently handled high profile, complex litigation before various federal courts. I am now an associate in the Veterans’ Law section at the law firm of Fink Rosner Ershow-Levenberg, LLC, and a Department of Veterans Affairs accredited attorney. The Veterans’ Law section at Fink Rosner Ershow-Levenberg offers nationwide representation at all levels of the VA administrative process, as well as in the Federal court system, at the U.S. Court of Appeals for Veterans Claims, and the U.S. Court of Appeals for the Federal Circuit. I focus solely on Veterans’ law and Veteran-related issues, claims and benefits and can offer a unique perspective as a veteran of Operation Iraqi Freedom.

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