Jump to content
VA Disability Community via Hadit.com

VA Disability Claims Articles

Ask Your VA Claims Question | Current Forum Posts Search | Rules | View All Forums
VA Disability Articles | Chats and Other Events | Donate | Blogs | New Users

  • hohomepage-banner-2024-2.png

  • 27-year-anniversary-leaderboard.png

    advice-disclaimer.jpg

  • donate-be-a-hero.png

  • 0

How long does a higher level review/CUE take?

Rate this question


Vync

Question

  • Content Curator/HadIt.com Elder

Updated as of 2020-08-27 (at the bottom of my original post)

How long does a higher level review/CUE take? I initially called the 1-800 number and they said supplemental reviews are supposed to take less than 125 days, but they were not certain about higher level reviews. The agent speculated they could take a year or longer.

This post was changed to track my claim as it made it's way through the VA system. This may help other veterans understand some of the inner workings of what goes on behind the scenes.

Why am I calling this HLR/CUE and not just CUE or HLR?
At the time the claims were submitted, other members have indicated filing their CUE claims as regular letters. With the overhaul to the VA claims and appeals process in early 2019, they have became sticklers for filing on certain forms. Unfortunately, there is no mandatory form for a CUE claim. With HLR and CUE being mostly similar, aside from the restrictions of CUE, I wanted to cover my bases and not cause any delays with them having to come back and ask me to use a specific form.

Quote

Background: Initial claims were filed in 1995 and awarded on appeal in 2000, but the VA failed to follow the laws in effect at the time and resulted in incorrect initial ratings.

CUE Claim 1: Rhinitis/sinusitis (38 CFR 4.97 DC 6501/6522)
1. C&P examiner felt I always had this condition
2. VARO reduced rating from 30% to 20% based on C&P examiner's opinion
3. VARO failed to follow 38 CFR 3.322(a): "If the degree of the disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction will be made."
4. Expected outcome: Reversal of reduction. Correction of initial rating from 20% to 30%.

CUE Claim 2: TMJ (38 CFR 4.150 DC 9905) due to oral surgery
1. C&P examiner noted max ROM qualifying for 0% rating, plus painful/limited motion ROM qualifying for 20% rating.
2. VARO granted 10% per 38 CFR 4.59 Painful motion: "It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint."
3. VARO failed to follow 38 CFR 4.2 "Interpretation of examination reports" by not recognizing C&P examiner notes for limited/painful motion qualifying for 20% rating.
4. VARO failed to follow 38 CFR 4.40 "Functional Loss" and 38 CFR 4.45 "The joints". Painful motion = limited motion.
5. Expected outcome: Correction of initial rating from 10% to 20%.

 

HLR/CUE timeline

2019-09-20 Mailed to VA certified mail w/return receipt

2019-09-23 Claim received

2019-10-08 Not yet posted to va.gov. Called 1-800-827-1000. ETA March 2020.

2019-10-17 Moved you evidence gathering, review, and decision as of 2019-10-15. ETA November 4, 2019

2019-10-22 Moved to initial review as of 2019-10-03. ETA March 30, 2020

2019-10-24 Requested records

2019-10-29 va.gov status unchanged. Development letter sent. Called 1-800-827-1000. Claim is in the national work queue and being worked by Houston VARO. The development letter was the typical "we got your claim and are working on it". They sent a request to the Birmingham VAMC for medical treatment records from 1995-1999. Called the VAMC's Release of Information Office and they have 20 business days to complete the request.

2019-11-25 Called 1-800-827-1000. Status still unchanged, but the suspense date of the medical treatment records request has expired. VA agent sent IRIS request. Called the VAMC's Release of Information Office. Paper copies were mailed via USPS certified mail to the Evidence Intake Center in Janesville, WI. They were nice enough to provide the USPS tracking number.

2019-11-29 Certified mail tracking shows package was received by the Evidence Intake Center in Janesville, WI.

2019-12-11 Called 1-800-827-1000. Paper copies have been scanned in to PDF. Waiting to be picked up by a VARO.

2019-12-12 Called 1-800-827-1000. The call center agent (Donald) sent an IRIS request to inform the VARO that the claims are ready to proceed.

2019-12-20 Moved you evidence gathering, review, and decision as of 2019-12-19. ETA January 23, 2020.

2019-12-27 No change to va.gov status. Only change is ETA of May 27, 2020, which is five months out. Called 1-800-827-1000 and was given a strange status. First, they said they were waiting on more medical records from the VAMC from December 20, 2019 through January 20, 2020, which doesn't make much sense. I called back later in the day and was told something different. Called my POA VSO. They said the VA sent me a letter asking if I had any additional evidence to add. The VSO said the ETA is probably out so far because they are waiting for a response from someone outside of the VA system (i.e. me).

2019-12-30 Checked va.gov and noticed it says they sent me a development letter and items need attention. Called 1-800-827-1000 and they said a letter was not sent out and they are not waiting on anything from me. My claim is still at the VARO and assigned to a VSR. They found a note indicating that the recent second request for VAMC medical records was in error. They said they have seen this happen before where it triggers the ETA date to be pushed out automatically. In this case, it cost me about six to seven weeks of unnecessary delay.

2020-01-03 Checked va.gov and no change. Called 1-800-827-1000. The call center rep said it was confusing and transferred me to someone else who could help tell me what is going on. Talked with a friendly lady who said that on 2020-01-02, the person developing the claim sent a message to the quality department asking if the claim should have been submitted on 21-526EZ or 20-0995 (supplemental claim form). Fortunately, earlier today, @Dustoff 11 posted the exact information from M21-1 indicating that no specific form is required. I provided that to the lady and she sent a message to the VARO to let them know exactly where it is. No clue if they have actually processed my request and were just double-checking or if they still need to do it. At least I was able to help them to help me, I hope.

2020-01-07 Well how about this. I received a letter in the mail from the VA yesterday which was dated 2019-12-20 requesting additional evidence (treatment records). Called 1-800-827-1000 and let them know this is for CUE and no new evidence could be added. They did say the request to revise is assigned to a rater, so that's promising.

M21-1, Part III, Subpart iv, Chapter 2, Section B - Revision of Decisions
III.iv.2.B.4.d. Considering Requests for Revision Based on CUE

Quote

Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or his/her authorized representative.

2020-01-09 One week has passed since VARO asked about how to proceed regarding filing using a specific form. Called 1-800-827-1000. They said it is now awaiting a decision. Estimated completion date was moved from May 2020 to February 12, 2020, which is an improvement.

2020-01-17 No change on va.gov. Called 1-800-827-1000. They said it was status 499 (National Work Queue), not assigned to an individual and waiting to be picked up. As of 1/8, it is still "Ready for decision". Estimated completion date still February 12, 2020.

2020-01-21 There was a change on va.gov, but it is a bit different than what I have seen previously. The estimated completion date is still February 12, 2020 and the last status was January 8th, but now it also includes three new lines talking about "We closed the notice for Request 1", "We closed the notice for Request 2", and "We closed the notice for Request 3", all dated Jan 8. This was not there last Friday. I'll take it as a good sign that something is happening.

image.png.e840385bd65fa2afae94ac66a0d43297.png

I called 1-800-827-1000 to see what these three things are. They said that these indicators were normal, part of what they are doing while clearing things off their checklist. I called my VSO and they confirmed it is "ready for decision", where it has been for the past two weeks. They checked to see if a letter was generated, but one has not been created yet.
  I also found the answer to my question (sort of) about the "We closed the notice for Request #". I just clicked on the "Files" header at the top.

image.png.5cd0de0b87c1d794a58da65780e4ecf0.png

And it showed more information about each request. It's more than what the agent on the phone provided, but it still doesn't give much transparency. For example, "Recent treatment for claimed conditions" was probably the request from the VARO to the VAMC for my medical records. However, because it was CUE, the request was probably not needed because they merely needed to check my claims file.

image.thumb.png.324a0c7c1456aab28047cdb62b000c93.png


2020-01-23 I had to call 1-800-827-1000 to check on something unrelated, so I asked them to give me a status update. The decision was made yesterday and is presently waiting for final review (i.e. approval). Once that is done, it will move to notiification. At that point, a decision letter should be inserted into the system and become visible to my VSO so I don't have to wait for it to arrive in the mail.

2020-01-24 Friday afternoon and I checked va.gov and there was a change. Or was there? it was in step 3 yesterday and is still there today. Maybe sometimes between then and now, it was moved to step 4, but then moved back to step 3. The only visible change is the estimated completion date being pushed out by two days. No big deal. I'd rather they take a couple of extra days to get it right (I just hope they get it right). To satisfy my curiosity, I called 1-800-827-1000 to find out if that was what really happened. The first agent I spoke with was clueless and said they could not tell me anything more than what I saw on va.gov. They transferred me to a "technician", who provided a little more info, but was rather rude and made me feel like I was preventing him from leaving for the day. He said the decision was completed and they are in the process of generating the formal notification letter. He said it should be in step 4 Preparation for notification, but indicated that va.gov and ebenefits may not reflect the current status in realtime. Either way, the estimated completion date was still January 30, 2020, what I can see in va.gov.

image.thumb.png.2a6571a7dba91f269026db846e5eb53f.png

2020-01-27 I guess someone at the VA was working over the weekend. Finally reached step 4: Preparation for notification and the estimated completion date was moved one day earlier to January 29, 2020.

image.png.0767c537915ec991443d79f7b9bab409.png

2020-01-27 Decided to check va.gov before leaving for the day. This confirms what I was told earlier today! Tomorrow, I will ask my VSO to print a copy of the rating decision.

image.thumb.png.b6eecc4482914a6afc3b47dff94a1f5e.png

image.thumb.png.7e419cc94ef0dd7aa5dc7072ae9d49d9.png

 

2020-01-28 Picked up rating decision from VSO. As expected, won one, lost one, but the one I lost will be appealed. They made the exact same mistake as in the original claim.

 

 

2020-08-27 HLR update and a recap
My HLR was received by the VA on April 10, 2020 and has been sitting idle in the national work queue. Today, I received a call from the DRO to perform the informal conference regarding the TMJ errors. He went over the details of the evidence he is allowed to consider (all evidence of record prior to when the decision was made in early 2000).

In this case, the VA did a C&P dental TMJ exam in November 1997, but they misplaced the notes and brought me back about a month later for a second exam. When the rating decision was made in early 2000, they only used the material from the second exam.

About 8 or 9 years ago, I requested a copy of my claims folder and received it a huge box. I scanned hundreds of pages, front and back, into my computer and organized them. When I had a heart attack in April 2019, I was out of work for several months to recover. I spent a good bit of that time going back over the documents looking for anything which might qualify as a CUE. As a result, I found the misplaced first C&P exam notes. I put together CUE motion and sent it to the VA in Sep 2019 for two issues. In Jan 2020, I won one, but lost the other. I took my time re-reviewing everything and filed the HLR in April 2020.

The DRO was able to see my copy of the first C&P exam notes from my packet, but needed to confirm that they were actually in VBMS already. Being handwritten, he had to go page by page and eventually found it. The document was jammed into a packet of 50+ scanned pages that were date stamped as being received by the VARO in March 1999.

He felt that when the decision was made in early 2000, the adjudicator probably was looking for transcribed findings placed on a formal C&P exam worksheet, not a handwritten progress note. However, because the first exam was so thorough, he is able to use it's contents.

He said DeLuca (4.40 and 4.45) definitely applies because numerous requirements of limitation of motion have been well documented. The first exam would indeed yield a 30% initial rating, but the second exam would only yield a 20% rating. Based on his findings, he feels that I should probably get awarded the 30% because had the material not been misplaced in error, the second exam would have never occurred.

He confirmed that CUE definitely did occur. He has to write up the rating narrative and will pass it on for review, claim approval, and any retro approval. The decision letter might be available in a couple of weeks. Due to the other CUE I won in Jan 2000, I was increased to 50% as of 1995. I should be increased to at least 60% from 1995 through 2008 or 2009.

The entire conversation lasted almost 90 minutes. I also asked him how HLR's are assigned from the National Work Queue. He said they they are assigned centrally. He saw I had my other HLR in the queue, but he is not allowed to request it. He said the HLRs are assigned to his individual work queue. For example, he may have 7 or 8 assigned to him at any given time. If he finishes up two in one day, two more are automatically assigned at the end of his individual work queue.

This news is a great relief, but as always, I will believe it when I see it. Crossing my fingers...

Edited by Vync
Track progress on initial topic post
Link to comment
Share on other sites

Recommended Posts

  • 0
21 minutes ago, Vync said:

@Kuwaitin08 Airtight evidence wins claims. Glad you noticed the effective date issue. Should be interesting to see how the VA explained that or if it was yet another error...

I’m sure it will be another error. 6 more months to fix🤦🏻‍♂️

Link to comment
Share on other sites

  • 0
  • Content Curator/HadIt.com Elder

Checked status and spoke with a very pro-veteran person at the call center named Donald. Still no change. Documents were scanned in to PDF but it was still waiting to be picked up.

Without me asking, he offered to send an IRIS request over to the VARO to let them know it is ready. He said I could call back toward the end of next week and they should be able to tell me if it had been picked up.

He also kept reminding me that when he places me on hold, he is not allowed to leave me on hold for more than two minutes at a time. This makes me wonder if this is a new policy VA wide or just at his specific call center.

Link to comment
Share on other sites

  • 0

My HLR was picked up this morning.  I chose not to have the phone call.  Considering I put all the errors down in writing I did not want to discuss it over the phone with a senior rater.  I just feel they would try to somehow trip me up with questions that may get me to say wording they want to use to deny me.  If I am not mistaken I think the phone call is only 30 minutes and that is not even remotely enough to go over the errors in my decision. 

I kept my HLR as brief as possible but in the end it was still 17 pages.  Will the senior rater read it?  I don't know but I did a few things to the document to make sure that they will not be able to say something was not there.  I cited a good bit of precedent setting case law as well as areas of 38 CFR.  However, I need to make sure that it would be noticed and to that that every CFR I cited and every case law I cited I made sure to bold it in the document.   So while they may decide not to read my notes it will be hard to miss 38 CFR 4.6 because it is bolded.  So if they just scan the document they will not miss it.  I did the same thing when I cited case law.  They may not read the notes but it will be hard for them to say they did not see that I cited Colvin v. Derwinski because it is clearly bolded. 

I handle all my issues with the VA as if I am submitting information to the BVA because that is where I feel it may ultimately wind up.   If my claim is denied at the HLR level then when I file my substantive appeal I am going to do so through an attorney.  Now I know many people have done it themselves and I believe I have the requisite knowledge and ability to do but what I lack is thorough knowledge of the process and think it is best get an attorney.   I do not have a problem with giving up 20% because I see it this way. 80% of something is always better than 100% of nothing. 

Link to comment
Share on other sites

  • 0
25 minutes ago, JKWilliamsSr said:

My HLR was picked up this morning.  I chose not to have the phone call.  Considering I put all the errors down in writing I did not want to discuss it over the phone with a senior rater.  I just feel they would try to somehow trip me up with questions that may get me to say wording they want to use to deny me.  If I am not mistaken I think the phone call is only 30 minutes and that is not even remotely enough to go over the errors in my decision. 

I kept my HLR as brief as possible but in the end it was still 17 pages.  Will the senior rater read it?  I don't know but I did a few things to the document to make sure that they will not be able to say something was not there.  I cited a good bit of precedent setting case law as well as areas of 38 CFR.  However, I need to make sure that it would be noticed and to that that every CFR I cited and every case law I cited I made sure to bold it in the document.   So while they may decide not to read my notes it will be hard to miss 38 CFR 4.6 because it is bolded.  So if they just scan the document they will not miss it.  I did the same thing when I cited case law.  They may not read the notes but it will be hard for them to say they did not see that I cited Colvin v. Derwinski because it is clearly bolded. 

I handle all my issues with the VA as if I am submitting information to the BVA because that is where I feel it may ultimately wind up.   If my claim is denied at the HLR level then when I file my substantive appeal I am going to do so through an attorney.  Now I know many people have done it themselves and I believe I have the requisite knowledge and ability to do but what I lack is thorough knowledge of the process and think it is best get an attorney.   I do not have a problem with giving up 20% because I see it this way. 80% of something is always better than 100% of nothing. 

My hope is that they accept your 17 pages. When you choose a higher level review the VA will not accept any additional evidence at all and will not consider anything other than was was submitted in the original claim. 
 

The phone call can be as long as you need it to be. Mine was almost 45 minutes. My realtor was very cordial to me and just told me to explain what my concerns were.

In your case, I hope I am incorrect.

Please let us know.

Link to comment
Share on other sites

  • 0
  • Content Curator/HadIt.com Elder

@JKWilliamsSr If given the opportunity for a phone call, I personally always recommend accepting them. About six years ago, I was surprised to get a call from the VARO regarding a regular claim. They wanted to go over their findings and make sure everything was covered. It was a pleasant knowing that I had a chance to ensure they fully understood and handled my request. Plus, if they screwed up and overlooked something, it is helpful to catch their shortcomings before the rating decision is mailed out. Trust, but verify.

Of the two claims I submitted recently, one was 14 pages and the other 17 pages. Those totals included the appropriate VA forms.

 

38 CFR 4.6 by itself is a bit tricky and is very broad reaching. I bolded it in mine too. The catch is how they describe "probative value". The legal definition is "evidence which is sufficiently useful to prove something important in a trial". With CUE, the VA likes to use Russell v. Principi (1992) to reinforce "undebatable", not merely "a disagreement as to how the facts were weighed or evaluated". By itself, it sounds pretty daunting because it seems like it gives the VA a way out to deem nearly any argument regarding evidence from being out of scope. 

I decided to take the systematic approach.

I backed it up with 20.1403 rule 1403 to challenge it based on "the statutory or regulatory provisions extant at the time were incorrectly applied" to show I was challenging it on the laws not being properly applied.

I went ahead and quoted 4.6, but also quoted other relevant statues to help tie it all together.

In my allergic rhinitis/aggravation CUE/HLR, I also quoted 38 CFR 3.322 (aggravation) to point out the last sentence of paragraph (a) "If the degree of disability at the time of entrance into service is not ascertainable in terms of the schedule, no deduction should be made" and to show how they screwed that up.

I showed the very straightforward rating criteria from 4.97 (respiratory ratings) code 6522 (sinus polyps/obstructions).

I then showed their reason for the rating reduction "veteran obviously had allergic problems before entering the service which got worse while he was in the service" could not be ascertained from the schedule. 

Because 3.311(a) was not applied, had they properly followed the law, the rating reduction from 30% to 10% would not have occurred and proved an outcome determinative result (i.e. higher rating).

 

Link to comment
Share on other sites

  • 0
  • Content Curator/HadIt.com Elder
8 minutes ago, Kuwaitin08 said:

When you choose a higher level review the VA will not accept any additional evidence at all and will not consider anything other than was was submitted in the original claim. 

That's a good observation. In my case, I was not submitting anything new either. I sent them the C&P exam and rating decision, both directly from a copy of my claims file. I also referenced laws in effect at the time the decision was made. Searching old versions of the Federal Register was tricky because I was not familiar with it. I wanted to use the government's own documentation to show exactly when the statute went into effect. I also didn't want to trust they rating criteria quoted by in the rating decision. If they screwed up other aspects of the decision, who's to say they didn't accurately quote things in the decision itself. I had challenged a lowball rating in the past where they added a stray digit to an ROM measurement and won a correction in that.

Instead, I described how the VA failed to follow the law when calculating the percentage I was awarded:

1. Here is what the law says.

2. Here is what happened.

3. Here are the errors they made by not following the laws at the time.

4. Here is the correct outcome (higher rating) if the laws at the time were followed.

Literally, I spoon fed them exactly what was needed to connect it all together. There's no reason to trust the VA would have figured out everything on their own. Why not just make it as easy as possible. The VA would only need verify everything and (hopefully) make right their past wrongs.

Link to comment
Share on other sites

Create an account or sign in to comment

You need to be a member in order to leave a comment

Create an account

Sign up for a new account in our community. It's easy!

Register a new account

Sign in

Already have an account? Sign in here.

Sign In Now
×
×
  • Create New...

Important Information

Guidelines and Terms of Use