On July 30, 2021, the U.S. Court of Appeals for the Federal Circuit (Court) issued a 63-page decision invalidating three important regulations issued by the Department of Veterans Affairs. In Military-Veterans Advocacy v. Secretary of Veterans Affairs, et al., (MVA) the Court struck down:
- 38 C.F.R. § 3.155, which excludes supplemental claims from the intent-to-file (ITF) framework;
- 38 C.F.R. § 14.636(c)(1)(i), which limits when a Veteran’s representative may charge fees for work on supplemental claims; and
- 38 C.F.R. § 3.2500(b), which bars the filing of a supplemental claim when adjudication of the same claim is pending before a federal court.
The VA has recently issued interim guidance as it re-writes the rules.
What does this mean?
In this post, we are going to discuss the first two changes, specifically, as they relate to the ITF framework and attorney’s fees for Supplemental Claims.
Before you read any further, the examples and strategies below are hypothetical. This is not legal advice, and the Law Office of Andrew P. Gross, LLC is not recommending you do any of this in regard to your own individual case. It is merely for illustration and discussion.
The issues surrounding the ITF framework is fairly significant. Prior to this decision, a veteran could submit an ITF to the VA in order to act as a placeholder of sorts for a future claim, as long as that claim is filed within a year of the ITF. Before the decision in MVA, the ITF only applied to initial claims for a disability. Here’s an example:
January 12, 2014 – ITF submitted.
October 3, 2014 – Initial claim submitted on a VA Form 21-526EZ
January 19, 2015 – Rating Decision issued, service connection granted, with an effective date of January 12, 2020
Let’s change the facts a little, and look at the law before MVA:
January 12, 2014 – ITF submitted.
October 3, 2014 – Initial claim submitted on a VA Form 21-526EZ
January 19, 2015 – Rating Decision issued; service connection denied.
March 16, 2020 – ITF filed.
August 12, 2020 – Supplemental Claim Filed with new and relevant evidence.
February 4, 2021 – Rating Decision Issued, service connection granted, with an effective date of August 12, 2020.
As you can see, the March 16, 2020, ITF had no impact on the effective date of the August 12, 2020, Supplemental Claim. This again underscores why it is so important to think about appealing as soon as you receive a Rating Decision you disagree with.
After MVA, the ITF does impact the effective date:
January 12, 2014 – ITF submitted.
October 3, 2014 – Initial claim submitted on a VA Form 21-526EZ
January 19, 2015 – Rating Decision issued; service connection denied.
March 16, 2020 – ITF filed.
August 12, 2020 – Supplemental Claim Filed with new and relevant evidence.
February 4, 2021 – Rating Decision Issued, service connection granted, with an effective date of March 16, 2020.
Strategy Shift?
This might change strategies somewhat, but it can also make things trickier. Keep in mind that the ITF only applies to the next claim or supplemental claim that follows.
For instance, it may be possible for a veteran to extend the appeal window from one year to almost two years using the ITF ahead of a Supplemental Claim. If a veteran received a Rating Decision 11 months ago and wants to appeal using a Supplemental Claim but has not had the ability to get the new and relevant evidence, they can submit the ITF and buy themselves an extra year. But this might not be the best way to preserve that effective date. Depending on the individual circumstances, if the veteran is nearing the end of the one-year appeal window following a Rating Decision that came after a Supplemental Claim, they may be better off filing a Higher-Level Review. Not just the Higher-Level Review takes two or three months to adjudicate, but the Rating Decision that follows can be appealed within 12 months.
However, it appears as if the ITF does not apply if the next appeal lane chosen is an appeal to the BVA or a Higher-Level Review. For instance, if the Rating Decision comes after a Higher-Level Review, and the plan is to file an appeal to the Board of Veterans Appeals (BVA), the veteran still only has one year. Filing an ITF does not buy the veteran any additional time. So, its incredibly important to put a lot of thought into which appeal lane to choose.
On the other hand, the example above might be an appropriate use of the ITF. Often, veterans will come to my office with old, final Rating Decisions from many years ago. In that case, filing an ITF might make the most sense, because it gives us and the veteran time to develop the additional evidence needed to fully develop the case before filing a Supplemental Claim.
Attorney’s Fees for Supplemental Claims
Prior to this decision, a representative (whether Attorney or Agent) could not charge fees for filing a Supplemental Claim. Fees for appeals are highly regulated.
Prior to the MVA decision, an accredited Agent or Attorney could only charge a fee after a Rating Decision gets appealed within one year (whether that be by Supplemental Claim, Higher-Level Review, or appeal to the Board of Veterans Appeals) and retroactive benefits are granted because of that appeal.
Post-MVA, when a veteran seeks the help in “reopening” a final decision (a decision where the one-year appeal period has expired), the attorney can charge a fee if successful in securing the benefits. The fee will not be very large, because the effective date will still be that of the Supplemental Claim, or as discussed above, potentially the ITF submitted within a year prior to the Supplemental Claim.
Conclusion
Although the decision in Military-Veterans Advocacy v. Secretary of Veterans Affairs, et al. will have an impact on strategy, the biggest impact it will have been on agents and attorneys being able to help more veterans develop and implement strategies to appeal Rating Decisions.
Ultimately, though, this does not change the general principle that if you are dissatisfied with a Rating Decision, whether because the effective date is incorrect, the ratings are too low, or service connection was denied entirely, you should consider appealing and most importantly, keep an eye on the calendar. The best way to preserve an effective date for a claim for VA disability is to file timely appeals with the proper evidence and argument.
Contact the Law Office of Andrew P. Gross to Get Started
Crafting a coherent and effective strategy, especially considering the decision in MVA, takes knowledge and experience, which is why it is a good idea to contact an accredited Veterans Benefits Attorney to assist. Contact the Law Office of Andrew P. Gross, LLC to learn more about how a seasoned attorney can help you.