a veteran’s effective date is established several years before the date of the award decision, they may be entitled to a significant amount of retroactive benefits. Under current VA law, attorney fees may be charged on an hourly basis, flat fee, or contingent fee basis, or a combination of all three. However, contingency fees are most common because many veterans and their families are unable to pay for legal services up front. Also, with the length of time disability claims take to resolve, it is not practical to charge on an hourly basis. The VA’s regulations provide that fees which do not exceed 20% of any past-due benefits awarded shall be presumed to be reasonable, and fees exceeding 33.3% of any past-due benefits awarded shall be presumed unreasonable. It can take the VA more than a year to review an attorney fee for reasonableness, so many attorneys charge a contingency fee for 20% of pastdue benefits to avoid delayed payment. There are also limitations on when attorneys may charge a fee – once the VA makes an initial decision, only then may a fee be charged for services provided. In practice, the most desirable cases have had a decision in the last 12 months, because the time limit to appeal a VA decision is one year. Veterans may pursue VA claims forever so long as an appeal is filed within one year of the previous decision. This is where our services come into play. We are often able to save veterans years off their cases by being intentional with the appeals we file and developing the necessary evidence. When we take a new case, we explain that there our representation is really broken down into two parts: 1) we develop the evidence and argument to satisfy the VA’s requirements for benefits and 2) we navigate the bureaucracy of administrative law at the VA level. It can be immensely frustrating to present the perfect evidence and argument only for the VA to continuously deny a claim for reasons that cannot be found anywhere in the VA’s own regulations. Therefore, it is a constant battle to move through the VA’s appeal process as efficiently as possible to reach MY LEGAL LIFE 31 a favourable outcome. Even when the VA grants service connection for a claimed disability, the assigned disability ratings and effective dates are often incorrect, which requires additional appeals. In 2019, the VA enacted the Appeals Modernization Act (AMA), which is an appeal process intended to provide veterans with a more streamlined and efficient way to appeal disability claims decisions. Here is a summary of the key steps involved in the AMA appeal process: 1. Supplemental Claim Lane: In this lane, veterans can submit new and relevant evidence to support their claim. The VA will review the new evidence and make a new decision. If dissatisfied, veterans can proceed to the next lane. 2. Higher-Level Review Lane: In this lane, veterans can request a higherlevel review by a more experienced VA reviewer. The higher-level reviewer will take a fresh look at the claim and their review is limited to the evidence already in the record at the time of the previous decision. This is the fastest appeal route and is very useful for correcting incorrect disability ratings and effective dates. 3. Board of Veterans’ Appeals (BVA) Lane: If dissatisfied with the decision in the previous lanes, veterans can appeal to the BVA and a Veterans Law Judge will render a decision. This is the highest-level decision maker at the VA. The number one complaint we hear about veterans’ disability benefits from clients and other representatives is the length of time the VA takes to decide claims. The VA reports that their goal is to decide Supplemental Claim and HigherLevel Review appeals in 125 days on average. For a decision from the BVA, the VA’s goal is to decide cases in 365 days, or longer if a veteran requests a hearing or to submit additional evidence. Although the VA typically issues HigherLevel Review decisions in fewer than 125 days, the other appeal options usually take a lot longer than projected. When explaining the appeal options to our clients, we generally project
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