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New Regs coming for Appeals

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Berta

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"VA to implement appeals modernization in February: Act will simplify process for how Veterans make claims appeals

January 17, 2019, 05:12:00 PM

 

"WASHINGTON — Today the U.S. Department of Veterans’ Affairs (VA) announced that the Federal Register will publish on Jan. 18 regulations accompanying the Veterans Appeals Improvement and Modernization Act of 2017 (AMA), which will help Veterans experience a more transparent claims decision-review process.

After publication of the regulations, VA Secretary Robert Wilkie will certify the department’s readiness to implement appeals modernization, which will transform a complex appeals process into one that is simple, timely and provides greater choice to Veterans who disagree with a VA decision. 

Implementation will occur 30 days after the Secretary certifies, as required by law.  Accordingly, the AMA will become effective Feb 19. 

“VA has been preparing for full implementation of the Appeals Modernization Act over the past 18 months,” Wilkie said. “Our staff has worked diligently, particularly in the last few weeks, to ensure the new, streamlined process is available to Veterans in February. 

The AMA was signed into law Aug. 23, 2017. Under the act, Veterans will now have three options for claims and appeals: (1) supplemental claim; (2) higher-level review; or (3) direct appeals to the Board of Veterans’ Appeals. All decision reviews submitted after February 2019 will fall under the new system.

Once the Appeals Modernization Act is fully implemented, VA’s goal is to complete supplemental claims and higher-level reviews averaging 125 days. Decisions appealed to the Board under its direct docket will average 365 days. Under the legacy process, appeal resolutions averaged three to seven years. "

For more information about VA appeals modernization, visit https://benefits.va.gov/benefits/appeals.asp and https://www.bva.va.gov/. "

I hope someone will post the new regulations-I dont have them yet.

 

 

 

https://www.va.gov/opa/pressrel/pressrelease.cfm?id=5183

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One example, from the Federal Register:

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Judicial decisions have recognized that CUE applies only to final administrative decisions. See, e.g., Richardson v. Nicholson, 20 Vet.App. Start Printed Page 3982164, 70-71 (2006) (stating that “CUE must be based on a final adjudication” and citing the definition of “finally adjudicated claim” in 38 CFR 3.160(d)); see also Cook v. Principi, 318 F.3d 1334, 1342 (Fed. Cir. 2002).

Further, CUE is a specific and rare kind of error, requiring the claimant to demonstrate three elements: (1) The error must be of a specific type—“either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied;” (2) the error must be “undebatable;” and (3) the error must undebatably be outcome-determinative, meaning that the error would have “manifestly changed the outcome” at the time it was made. Willsey v. Peake, 535 F.3d 1368, 1371 (Fed. Cir. 2008) (citing Cook, 318 F.3d at 1344 and Russell v. Principi, 3 Vet.App. 310, 313-14 (1992)); see also Cushman v. Shinseki,576 F.3d 1290, 1301-02 (Fed. Cir. 2009) (error must be outcome determinative); Bustosv. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999) (affirming “manifestly changed outcome” requirement).

An error is undebatable if “no reasonable adjudicator could weigh the evidence in the way that the adjudicator did.” Willsey, 535 F.3d at 1372; Russell, 3 Vet.App. at 313-14 (CUE errors must be undebatable, such that “reasonable minds could only conclude that the original decision was fatally flawed at the time it was made”). Accordingly, CUE cannot be based on a “disagreement as to how the facts were weighed or evaluated.” Id. at 313.

The error must be shown based solely on the evidentiary record as it existed at the time of the disputed regional office (RO) adjudication and the law that existed at the time of subject adjudication. Cook, 318 F.3d at 1343-45; Russell, 3 Vet. App. at 314 (“New or recently developed facts or changes in the law subsequent to the original adjudication . . . do not provide grounds for revising a finally decided case”); Jordan v. Nicholson, 401 F.3d 1296, 1299 (Fed. Cir. 2005) (subsequent change in interpretation of statute not applicable to CUE request as to final VA decisions).

The caselaw also addresses burden of proof issues. As the Court stated in Andre v. Principi, “ 'the party bringing a CUE challenge to a final RO decision bears the burden of proving that the decision was based on a clear and unmistakable error.' ” 301 F.3d. 1354, 1361 (Fed. Cir. 2002) (quoting Pierce v. Principi, 240 F.3d 1348,1355 (Fed. Cir. 2001)). “ `This burden is not satisfied by the mere assertion that the decision contained CUE; instead, the party must describe the alleged error “with some degree of specificity” and must provide persuasive reasons `as to why the result would have been manifestly different but for the alleged error.' ” Id. (citation omitted). Mere allegations of failure to follow regulations or failure to give due process, or any other general, non-specific claims of error, are insufficient to raise a claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An allegation that the Secretary did not fulfill the duty to assist is insufficient to raise the issue of CUE. See, e.g., Crippen v. Brown, 9 Vet. App. 412, 418 (1996).

Proposed § 3.105(a)(2) applies to decisions that are not finally adjudicated at the agency of original jurisdiction. The proposed language reflects current policy and practice with respect to matters adjudicated under part 3 of VA's regulations that the outcome of a decision will not be revised by another adjudicator in the agency of original jurisdiction on his or her own initiative, based on the same evidentiary record, unless a determination is made that the outcome of the decision is clearly erroneous. This reflects a policy decision by VA to restrict the discretion of subsequent adjudicators to reverse prior determinations in the absence of new evidence. In accordance with new 38 U.S.C. 5104A, the adjudicator may, in determining whether the result was clearly erroneous, take into account any favorable findings subject to reversal based on clear and convincing evidence to the contrary. Determinations under § 3.105(a)(2) are therefore legally distinct from determinations under § 3.105(a)(1) as to whether a final decision should be revised based on CUE.

In addition, VA proposes to amend paragraph (b) to clarify that difference of opinion authority is given to VA employees designated to complete higher-level reviews to implement the requirement in new 38 U.S.C. 5104B that a higher-level review is de novo, subject to the rule protecting favorable findings. A new paragraph is also added at the end of § 3.105 to reflect that VA decisions may now be revised through resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or higher-level review under 38 U.S.C. 5104B.

No changes are necessary to §§ 3.105(c) through (h), which govern severance of service connection and reduction in evaluations, such as reductions in pension payments and reductions in evaluations of a service-connected disability. The standards and procedures set forth in these paragraphs will continue to apply and an adjudicator considering whether to reduce or discontinue an evaluation under § 3.105 is not bound under the “favorable finding” rule in new section 5104A of the statute that protects findings relating to a disability evaluation for a particular period of time but does not preclude a subsequent finding that the disability thereafter improved.

Rating evaluations and pension awards are running awards, resulting in recurring payments being made subsequent to an initial award. See, e.g., Dent v. McDonald, 27 Vet.App. 362, 372 (2015) (pension is a “running award,” meaning “recurring payments made subsequent to an initial award”). Changes in the underlying facts that led to the original award may warrant a discontinuance or reduction of a running award. See, e.g.,38 U.S.C § 5112 (governing effective dates of reductions and discontinuances); 38 CFR 3.273 (describing monthly pension as a “running award” and requiring adjustment when there is a change in income); § 3.105 (noting that the provisions regarding the date of discontinuance of awards are applicable to running awards such as monthly pension and those based on disability evaluations); § 3.344 (governing disability evaluation reductions on the basis of medical reports showing improvement in a service-connected condition). Determinations of whether a running award should be adjusted are based on different facts for a different time period than that for which the initial award was made. Accordingly, a determination of the appropriate level of a running award made in an initial decision is a finding different than a later finding as to whether the previously assigned level should be reduced or discontinued. Therefore, an adjudicator considering whether to reduce or discontinue an evaluation under § 3.105 is not assessing prior entitlement under the initial award of disability evaluation and is not bound by prior “favorable findings” under section 5104A of the statute. No change to the standards and procedures in §§ 3.105(c) through (h) is therefore required.

In part, this appears to give VA employees working ramp claims the opportunity to "CUE".  THIS suggests that, if the claimant enters RAMP opts for the Supplemental Claim Lane 

(with new relevant evidence), he would NOT be eligible to CUE his claim.  Instead, if the Veteran alleges CUE, he should opt for the higher level review.  If this is implemented, its important Vets understand this!!!!!

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I agree-

This is what former Sec Shulkin's office seemed to write into the Modernization Act, which he said I had input into-

I had a strong argument for why the ROs should seek CUE in any new decision-and I believe they already have tried to implement this for a few vets here, whose ebennies showed the claim was returned to someone at the RO---for a correction.

In any event the VA recognizes that even a recent decision can be cued by the claimant- denial or award.

But it could reduce the backlog a little, maybe even a lot - if someone at the VARO corrects any legal error before the decision is sent out.

3 or maybe 4 of us by now have done that with success. Cued a recent decision.

As the Press Release says, the new regulations will be at the Federal Register today.

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This bears repeating- as Brncovet pointed out.

A CUE does not rest on 
"new" relevant evidence anyhow.

It rests on established medical evidence and any other relevant evidence that was in VA's possession at time of the alledged CUE. It does not matter where at VA that evidence was at or from.

For example-my husband had a letter from a former VA Secretary that verified his 100% P & T due to his 1151 stroke

I dont know if this letter was ever sent to the RO , by the Secretary;s office.

I sent copy  it to the RO years ago and re sent it 3 years ago, and a few months ago ago-

It is but a small part of the evidence they had long ago,that I keep re sending to them.

All in VA;s possession at time of their most recent C decision containing CUE.

The CUE claim it involves holds a violation of 38 CFR 4.6.

It was verified as received by the VARO,per their phone call to me-

I asked the RO man to just read the beginning of each piece of evidence and he did, when he verified my response to the 5103.

And then I think he threw it into a trash basket or into their shredder, so that it could support the next  ludicrous phone calls I got from their Director.

Unfortuately I dont think anyone here commented on my OAWB request-that others would willingly contact the OAWB over the incompetent C & P exams they get-I said they could even use my name, in support of their own OAWB complaint.

That's OK-I have proof of plenty of incompetent posthumous  C & P exams to send to them.

All those claims were eventually  awarded -but that is not the point....

 

 

 

 

 

 

Instead, if the Veteran alleges CUE, he should opt for the higher level review.  If this is implemented, its important Vets understand this!!!!!"

 

 
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