In a somewhat controversial rule published last week in the Federal Register, the Department of Veterans Affairs has announced that it will only accept appeals of original VA Regional Office decisions (better known as Notices of Disagreement or “NOD’s”) if the claimant, or his or her representative, uses the standardized appeal form 21-0958.
In 38 CFR Parts 3, 19 and 20, which can be read here, VA has ruled that appeals must be submitted on its own standardized forms; in the past, virtually any statement submitted to VA by a qualified appellant ‘‘reasonably construed’’ as expressing his or her intention to appeal a decision was accepted, if timely. Now, “regardless of the type of claim or posture in which the claim arises… VA will 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.”
Assuming that every Regional Office decision sent to a claimant involving compensation will include the standardized NOD form 21-0958, under the new rule every claimant will be required to use the standardized form if he or she intends to appeal the decision in question. Of course, if VA does not attach the form to a decision sent to a claimant, the claimant will not be required to use the form to file an appeal.
Further, in its new rule VA also states that it “may require a standard NOD form for any type of claim for VA benefits if, in the future, it develops and provides a standardized NOD form for a particular benefit.” The rule is effective March 24, 2015. According to VA, “The purpose of these amendments is to improve the quality and timeliness of the processing of veterans’ claims for benefits by standardizing the claims and appeals processes through the use of forms.”
- VA’S DEMAND FOR STANDARDIZED FORMS IS NOT LIMITED TO APPEALS
Claimed that its long-held standard of processing of any “communication or action” indicating a claimant’s intent to apply for VA benefits “incentivized the submission of claims in non-standard formats that frustrate timely, accurate, and orderly claims processing,” VA has decided – by requiring that a qualified claimant file his or her claim via standardized form (VA Form 21–0966) within one year of filing an informal claim, if the effective date of any compensation awarded is to be the date of the informal claim – to try to eliminate the informal claims process “in order to meet contemporaneous needs in administering the claims workload [and] eliminate the backlog of claims.”
As 38 U.S.C. 5101 states that claimants must file ‘‘a specific claim in the form prescribed by the Secretary’’ in order to qualify for benefits, VA argues that it has the right to demand that every appeal be submitted using its standardized form. Again, VA says that the reason for this rule is “to cut processing time” and ensuring “faster delivery of benefits” to veterans.
- There are numerous new regulations and related plans discussed in VA’s final rule on this issue - which, again, you can read here – but the standardized forms for filing both claims and appeals are the meat of this news.
While VA notes in its ruling that many believe the requirement of standardized forms is “burdensome to claimants by making it more difficult for claimants to file a claim and by overcomplicating the claims process, particularly for those with disability limitations or limited access to VA forms,” VA concludes that “increasing the role of standard forms a key component to streamlining, standardizing and modernizing the claims process.” Many worry – and this may be upheld if the new rules eventually come before the Federal Circuit and/or the Supreme Court – that it will cause undue harm to veterans, many of whom are attempting to obtain compensation for psychological disabilities that would make understanding the already-obtuse claims process impossible, to deny benefits essentially because understanding the VA process for filing a claim or appealing a decision was misunderstood.
Like all VA regulations, most of which are controversial, the agency’s new requirement of standardized forms for claims and appeals will be closely watched and dissected after it takes effect. In the case of its new requirement for standardized forms in order to process claims and appeals, VA seems to be altering Abraham Lincoln's famous quote to state "To care for him [or her] who shall have borne the battle...if he or she submits a request for care using our standardized forms." We are eager to hear your thoughts on the new rules, and if you need help understand them, or help with anything regarding your VA claim, call the Office of Attorney Sean Kendall at 877-629-1712.
