How long does a higher level review/CUE take?

[Vync]

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.

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.

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.

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.

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.

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.

 

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 August 27, 2020 by Vync
Track progress on initial topic post

[Vync]

@JKWilliamsSr Yeah, it is a bit difficult to trust the same organization that already screwed things up in the past.

I won an appeal about six years ago where my medical and lay evidence was ignored. All I did was point this out and the reviewer corrected the issue.

i might be wrong in how I read this, but Colburn v. Nicholson ruled that the VARO cannot reject a medical opinion that was solely based on veteran's statements to the examiner. The VARO would have to return the examination back to the C&P examiner for clarification or simply request a new exam. Their explanation would need to be spelled out in the reasons and bases section of the rating decision.

It appears to tie back to The VA likes to apply M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination reports under their requirement "A medical opinion is not properly supported by a valid rationale and/or by the evidence of record."

Colburn v. Nicholson could be a good way to challenge the denial if they failed to request clarification from the examiner.

 

Edited December 18, 2019 by Vync

[Vync]

21 minutes ago, El Train said:

Same boat as you.  Rater took a VA NP's opinion over Dr. Ellis rock solid IME, backed up with medical records review, & stating in service incident that caused the issue.  The denial letter stated 'no records of in service incident' (not true).  Favorable evidence 'Veteran does have diagnosis of lumbarsacoral strain'.  

I took the HLR phone call, and stated what was missed and Dr. Ellis strong IME.  The gentleman was very nice.  Asked when & where in service incident took place.  So we shall see what happens.  Probably stay denied.

 

Quote

The United States Court of Appeals for Veterans Claims 
(Court) has held that for service connection to be awarded, 
there must be (1) medical evidence of a current disability; 
(2) medical evidence, or in certain circumstances, lay 
evidence of an inservice incurrence or aggravation of a 
disease or injury; and (3) medical evidence of a nexus 
between the claimed inservice disease or injury and the 
present disease or injury.  Colburn v. Nicholson, 19 Vet. 
App. 427 (2006); accord Disabled American Veterans v. 
Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 
2005); Shedden v. Principi, 381 F. 3d 1163, 1166 (Fed. Cir. 
2004).  If the veteran fails to demonstrate any one element, 
denial of service connection will result.  

Sounds like the VA believed you had Caluza element 1 and 3, but not 2. It is probably a case where they did a shoddy search through your service treatment records. It sounds like once they verify then you should be good to go.

 

[JKWilliamsSr]

11 minutes ago, Vync said:

@JKWilliamsSr Yeah, it is a bit difficult to trust the same organization that already screwed things up in the past.

I won an appeal about six years ago where my medical and lay evidence was ignored. All I did was point this out and the reviewer corrected the issue.

i might be wrong in how I read this, but Colburn v. Nicholson ruled that the VARO cannot reject a medical opinion that was solely based on veteran's statements to the examiner. The VARO would have to return the examination back to the C&P examiner for clarification or simply request a new exam. Their explanation would need to be spelled out in the reasons and bases section of the rating decision.

It appears to tie back to The VA likes to apply M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination reports under their requirement "A medical opinion is not properly supported by a valid rationale and/or by the evidence of record."

Colburn v. Nicholson could be a good way to challenge the denial if they failed to request clarification from the examiner.

 

In my case I am pretty sure that the rater did not ask their C&P Examiner for clarification and that is where they lose.  For one I think it is pretty stupid to request a Nurse Practitioner to clarify an opinion that was provided from a Board Certified MD. They definitely did not reach out to my Dr.  On top of that my diabetes claim was denied without a C&P exam. The rater took the evidence I submitted and made their own opinion. 

Edited December 18, 2019 by JKWilliamsSr

[paulstrgn]

I had the VA ignore my evidence, IMO, and lay statements by the original raters and the HLR rater for SA. It was also the VA NP opinion they took over the two MD sleep specialist opinions. In fact, the HLR rater told me on the call that most claims are denied at the HLR but the BVA usually approves most of them. First, I was pissed and wonder why the hell even tell me such a thing whether it’s true or not, second if you know the BVA will approve it them why make me go to the BVA at all. Needless to say, the BVA did approve my SA claim. 

Long story short, I still recommend going to the HLR route and request the conference call, of the three I had two were professional and took their time to talk with me and I felt they truly listened. Those two both granted my HLR claims, the third one I mentioned above. I was not nervous on the calls and kept it professional even when the one told me it would probably be denied. Dealing with the VA is very stressful and I truly hate it, but it is a necessary evil if I want to get my disabilities approved.

I started my VA journey 20 years after I retired from the military (I was too lazy to file before...just being honest). But when I started in 2015, I stuck to it, I first started at 40% but kept after it, by 7/2019 I made it to 100% P&T with the effective date back to 8/2018. I did it by sticking to it and the help of my fellow veterans here on Hadit.

As stressful as it can be I highly recommend sticking with it, even if it takes beating your head against the wall a few times. Remember you have earned these benefits by the sacrifice you made to our country, don't let anyone tell you different.

Keep filing and don't give up for you will get there.

Good luck!!! 

[JKWilliamsSr]

5 hours ago, El Train said:

Same boat as you.  Rater took a VA NP's opinion over Dr. Ellis rock solid IME, backed up with medical records review, & stating in service incident that caused the issue.  The denial letter stated 'no records of in service incident' (not true).  Favorable evidence 'Veteran does have diagnosis of lumbarsacoral strain'.  

I took the HLR phone call, and stated what was missed and Dr. Ellis strong IME.  The gentleman was very nice.  Asked when & where in service incident took place.  So we shall see what happens.  Probably stay denied.

Probably beating a dead horse with this but I will make my standard statement.  I think most raters are just flat lazy and don't bother to actually review claims properly.  They go by what the C&P examiner says and it does not matter what any other evidence says.   In my opinion the raters only care about the number of claims processed.  They do not concern themselves with accuracy because they know the BVA will fix the problem.  Only problem is that this takes and really hurts the veteran.

As it pertains to the medical evidence.   No rater can ignore or give outside medical little weight without doing so with a valid medical opinion.  This is why so many get overturned at the BVA level.  There is a ton of case law on this.

Willis v. Derwinski
Colvin v. Derwinksi
Fletcher v. Derwinski
Moore v. Derwinksi
Lowe v. Derwinksi
Magusin v. Derwinski
Guerrieri v. Brown
Ashley v. Brown
Doran v. Brown
Rollings v. Brown
Patton v. West
Jones v. Principi
Coburn v. Nicholson
Shipwash v. Brown
 

[JKWilliamsSr]

2 hours ago, paulstrgn said:

I had the VA ignore my evidence, IMO, and lay statements by the original raters and the HLR rater for SA. It was also the VA NP opinion they took over the two MD sleep specialist opinions. In fact, the HLR rater told me on the call that most claims are denied at the HLR but the BVA usually approves most of them. First, I was pissed and wonder why the hell even tell me such a thing whether it’s true or not, second if you know the BVA will approve it them why make me go to the BVA at all. Needless to say, the BVA did approve my SA claim. 

Long story short, I still recommend going to the HLR route and request the conference call, of the three I had two were professional and took their time to talk with me and I felt they truly listened. Those two both granted my HLR claims, the third one I mentioned above. I was not nervous on the calls and kept it professional even when the one told me it would probably be denied. Dealing with the VA is very stressful and I truly hate it, but it is a necessary evil if I want to get my disabilities approved.

I started my VA journey 20 years after I retired from the military (I was too lazy to file before...just being honest). But when I started in 2015, I stuck to it, I first started at 40% but kept after it, by 7/2019 I made it to 100% P&T with the effective date back to 8/2018. I did it by sticking to it and the help of my fellow veterans here on Hadit.

As stressful as it can be I highly recommend sticking with it, even if it takes beating your head against the wall a few times. Remember you have earned these benefits by the sacrifice you made to our country, don't let anyone tell you different.

Keep filing and don't give up for you will get there.

Good luck!!! 

When I submitted the form I did not bother to check that I wanted a phone call.   At the time I did not and to be honest still do not want the call but after reading some of you guys post I truly see the logic behind it.

If my HLR is denied I am getting an attorney.  I have already reached out to Hill & Ponton and once I get my letters I will hire them.