New guidance for AMA claims from US Court of Appeals 30JULY2021

[brokensoldier244th]

Excerpts from an email I got yesterday after I had logged off, but read this AM. I don't pretend to understand point C.- I don't work on court appeals stuff. 

We are apparently having meetings next week about all of this. 

 

A. Intent to File (ITF) Framework Applies to all Supplemental Claims
The Court invalidated a portion of the introductory language to 38 C.F.R. § 3.155, which
excluded supplemental claims from the ITF process. VA must now accept an ITF for a
supplemental claim. Claim processors must consider whether an ITF of record is
applicable to a subsequently received supplemental claim under § 3.155. This includes
all supplemental claims, whether filed within one year of a decision or after the
continuous pursuit period has ended. An ITF filed within one year of a VA decision may,
therefore, operate to maintain continuous pursuit if the ITF is applicable to a
supplemental claim filed after expiration of the one-year period following notice of a
decision.

 

B. Claimants can file supplemental claims while a claim for the same issue is pending at
the Court.
The Court also invalidated 38 C.F.R. § 3.2500(b), which prohibited the filing of a
supplemental claim when adjudication of the same issue was pending before a federal
court.
Note: The Board of Veterans Appeals (BVA) does NOT fall under this definition of a
federal court. The existing guidance in M21-1, II.i.2.A.3.a-c. still applies when
determining if a claimed issue is duplicative of a legacy or BVA appeal.
To allow timely consideration of new and relevant evidence, effective immediately, claim
processors must accept a supplemental claim filed on or after July 30, 2021, when the
same issue has been appealed and is pending before a federal court when the
supplemental claim is filed. This includes cases before the U.S. District Courts, the U.S.
Courts of Appeals for Veterans Claims, and the U.S. Supreme Court.

 

 

C. Revision of Attorney Fee Eligibility Due to Invalidated Regulation.
The Court invalidated 38 C.F.R. § 14.636(c)(1)(i), which treated decisions on various
types of claims as initial decisions in the case thereby making attorneys and agents
ineligible for fees based on those decisions. The Court disagreed and explained that, for
example, clear and unmistakable error claims and supplemental claims filed after the
one-year continuous pursuit period are, for fee purposes, part of the same case as
earlier proceedings adjudicating compensation for the same disability.
VA may no longer apply the regulation, 38 C.F.R. § 14.636(c)(1)(i). Under the Court’s
ruling and the relevant statute, 38 U.S.C. § 5904(c)(1) and (4), agents and attorneys
may charge claimants or appellants for representation provided after an agency of
original jurisdiction has issued notice of an initial decision on the claim or claims if the
notice of the initial decision was issued on or after the effective date of the modernized
review system as provided in 38 C.F.R. § 19.2(a), and the agent or attorney has
complied with the power of attorney requirements in 38 C.F.R. § 14.631 and the fee
agreement requirements in paragraph 38 C.F.R. § 14.636(g).
Under this ruling, once VA has initially adjudicated an issue, fees may be charged for
work on later claims involving that issue without the requirement of a new initial
decision. Attorney fee eligibility now applies to all supplemental claims. This applies to
fee decisions on underlying claims processed under AMA required on or after July 30,
2021.