On September 25, 2014, the Department of Veterans Affairs (VA) published final rules of sweeping importance. The rules have two major components:
- To require all claims to be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises, and
- to provide that VA would accept an expression of dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) as a Notice of Disagreement (NOD) only if it is submitted on a standardized form provided by VA for the purpose of appealing the decision, in cases where such a form is provided.
The first component – requiring all claims to be filed on a standard form – eliminates informal claims based on VA medical exams. Thus, with this rule, VA has wiped out an entire body of case law.
This is a summary of VA’s new system:
38 C.F.R. § 20.201, Notice of Disagreement
VA’s new rule states that VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination submitted in any other format than the form provided by the VA, meaning form 21-0958. The requirements of what form 21-0958 must contain remain somewhat undefined. Current case law will provide some guidance on this issue.
38 C.F.R. § 3.155, Claims
This rule creates two categories: a completed claim and an incomplete claim, which is described as an “intent to file a claim.” VA will not accept an expression of an intention for benefits that is not in the newly prescribed formats – like through an electronic VA portal. But, VA will accept the expression of an intent as a placeholder for the effective date. VA will also send to the veteran notice of the incomplete nature of the veteran’s submission along with a form the veteran may use to perfect the intent and establish a recognized claim. The veteran will have one year to perfect the expression of intent for benefits – to convert the “incomplete claim” into a “claim” – to preserve the effective date created by the placeholder. This rule is the one that goes farthest to eliminate informal claims.
38 C.F.R. § 3.160, Types of Claims and Abolishing the Informal Claim, Current Rule 38 C.F.R. § 3.155
Proposed Rule 3.160, in conjunction with the new Rule 3.155 — completes the evisceration of CAVC cases that requires VA to adjudicate claims reasonably raised by the evidence. Under this rule, VA will not optimize veterans’ benefits because it will limit the analysis to the four corners of a “completed claim,” which this Rule defines. The informal inferred claim will cease to exist and render meaningless a large body of case law. The rules also purport to treat an application for total disability based on individual unemployability (TDIU) as a claim. This appears to conflict with the current, although admittedly complex, understanding of what a request for TDIU is.
This change places veterans at a disadvantage and corrodes the uniquely friendly system which Congress intended to create. It also risks creating a system wherein technical pleading is required. This is especially likely for veterans who describe symptoms rather than diagnoses on a claim form. For example, if a veteran requests compensation for “Agent Orange related disabilities,” then VA is likely to treat that as an incomplete claim or a request for an application. Such an expression of an intent for benefits would be a placeholder, but it may not constitute a “claim” under the new rules.
The VA Process and VA Forms
The Need for VA Disability Lawyers
The new rules underscore the importance of advocacy with technical expertise in procedure. As the VA system becomes more complex, the role for highly trained, professional advocates at Bosley and Bratch will grow. The best advice for many veterans is not to try navigating this complexity alone. That approach will cause delays, errors, and less than optimal benefits. These rules will also result in extensive court litigation for years to come.