Higher level review

[El Train]

I have an MD opinion stating it is more likely than not veterans lower back issue and sciatica was caused by an in service event (in my medical records).  Had a VA C&P done by a nurse practitioner.  ROM was all out of whack.  She states veterans level of participation questionable.  Less than likely as not (of course), due to the fact I didn't complain on exit physical and medical records are silent for a number of years.  Have buddy and spouse statement explaining treatments when I got out and they (more than once) drove me there due to flare ups.  Medical records get destroyed after 7 years when I went to retrieve them.

Should I file a higher level review or just appeal it?  I'm at 100% barely, and everything I applied for approved.  Based on medical evidence connecting in service incident, treatment, buddy statements and MD opinion more likely than not.  I do not care if they review all other claims, as I have sufficient evidence to back them up, or have the means to get more if needed.

[kanewnut]

1 hour ago, El Train said:

Should I file a higher level review or just appeal it?

Higher Lever Review only looks at what is already in the record. It didn't do me any good to ask for a HLR. They still denied me.

[rsm-esq]

Hi there,

You mentioned you have an MD opinion that supports your argument ("more likely than not..."), and a VA opinion that is opposed ("less likely than not...").  But it's unclear whether the MD opinion is in the record or not - that's critical in figuring out whether HLR or Appeal is a better option.  Did the VA deny your claim after reviewing both opinions, or did you obtain the MD opinion after VA's decision?  Here's why that's important...

If you select Higher Level Review, you will not be able to submit any new evidence.  So, if the MD opinion isn't already in VA's records, they will not consider it as part of this claim.  Which means that HLR will probably result in another denial.

If you select Appeal, you WILL be allowed to submit new evidence, and (at least in theory) a Judge will review your case, applying sound legal judgment along with a review of any new evidence submitted in support of your claim.  Check out the attached PDF that shows the various appeal options as they currently stand.

VBA-20-0998.pdf

[Buck52]

Should I file a higher level review or just appeal it?  I'm at 100% barely, and everything I applied for approved.  Based on medical evidence connecting in service incident, treatment, buddy statements and MD opinion more likely than not.  I do not care if they review all other claims, as I have sufficient evidence to back them up, or have the means to get more if needed.

Maybe you can make heads or tails from this link below?

https://www.va.gov/decision-reviews/higher-level-review/

 

Edited July 20, 2019 by Buck52

[rsm-esq]

HLR seems to be geared toward fixing glaring procedural errors, not substantive.  For example, if you had 1 year to file your disagreement, but the VA closed your case in 6 months; or a similar administrative error.  HLR doesn't usually help change a denial to an approval based on what's already in the veteran's file.

My suggestion would be to have a legal professional review your case, review the VA's reasoning, figure out if obtaining new medical evidence (nexus letter) is worthwhile, then submit a formal appeal request with a formal supporting legal brief with citations to relevant law and analysis. 

I'm a VA benefits lawyer and I'm happy to look into your situation if you want to contact me directly.  But also feel free to ask around, do research online, etc. I've seen very good advice and support here from the folks who run Hadit.com

[El Train]

7 hours ago, rsm-esq said:

Hi there,

You mentioned you have an MD opinion that supports your argument ("more likely than not..."), and a VA opinion that is opposed ("less likely than not...").  But it's unclear whether the MD opinion is in the record or not - that's critical in figuring out whether HLR or Appeal is a better option.  Did the VA deny your claim after reviewing both opinions, or did you obtain the MD opinion after VA's decision?  Here's why that's important...

If you select Higher Level Review, you will not be able to submit any new evidence.  So, if the MD opinion isn't already in VA's records, they will not consider it as part of this claim.  Which means that HLR will probably result in another denial.

If you select Appeal, you WILL be allowed to submit new evidence, and (at least in theory) a Judge will review your case, applying sound legal judgment along with a review of any new evidence submitted in support of your claim.  Check out the attached PDF that shows the various appeal options as they currently stand.

VBA-20-0998.pdf 320.21 kB · 2 downloads

The VA had the MD's opinion prior to the C&P.  She even stated it was well written.  It was from Dr. Ellis who specializes in IME.  I had several other claims approved based on his expertise.  I'll try to see if I can attach the denial letter PFD.  It basicly disregards the MD's opinion and ROM testing.  What's weird is, at the end it states 'favorable findings' You have been diagnosed with thoracolumbar spine from VA C&P (lumbosacral strain and mdd disease).  

Do you mind if I send you the IME and denail info.  

[GBArmy]

Sure, make sure all your personal info is redacted. I don't get it either. Did you look up what your disabilities are posted in ebenees and see if they changed. Is it by chance rated as 0%? The just can't disregard what your IMO said; they have to talk to his points. Tie is supposed to go to the veteran.