Appealing Decision

[Fat]

Veteran Group member was awarded 10% (MODERATE) left foot (painful motion).

He wants to appeal for higher 20% (MODERATE SEVERE) or 30% (SEVERE).

He wants to preserve his effective date of August 15, 2019.

The VSO told him this:

1.  The HLR would probably be another denial and add six months on the process.

    The veteran had a rock solid nexus, MRI results, good C&P exam, and a DBQ that stated veteran had difficulty with locomotion when standing.

      He thinks it will be another rubber stamp of the previous decision.

 

2. Reconsideration is a decent route where you can send additional information, but it wont protect the effective date and its treated as a re-opened case.

    He badly wants to protect the effective date because he allowed a service connected cubital tunnel elbow issue to close (2004) before reopening it years later (reopened 2012 and awarded service connection 2014) after surgery to fix the issue.

 

3. BVA appeal would protect the effective date and allow additional evidence.

    The downside is a 3 to 5 year possible wait.

 

Which is the better route?  I say BVA, but how successful are HLR reviews.

If you go the BVA route, is a Form-9 still needed.

The VSO said after 2019, BVA appeals no longer use Form -9  and there is new form.

True or Not True.

Can he still send Waiver of Regional Office Consideration Form?

 

All comments are welcomed.

 

[Dustoff1970]

I was told by a well known and respected doctor who provides IMOs for vet claims that an HLR review lane was a quick denial by the VA and for losers and no I am not going to give his name

I have not heard VA form 9 is discontinued and the VA sent a close friend of mine two VA Form 9s in December 2019 for two separate appeals

Since protecting the earlier effective date is most important to him then BVA seems best bet and you are allowed to add any new relevant evidence with the VA Form 9  (if any).  

Unless AMA changed everything I would guess he can still waive VARO consideration of new evidence but that is another good question.  Lots and lots of confusion to the VA's benefit with this new AMA.

My information is not legal advice as I am not an attorney, paralegal or VSO.

[toddt]

You are looking for this form:    https://www.va.gov/vaforms/va/pdf/VA10182.pdf

Read the directions carefully.  From what you are asking it looks like you want to check box 11b.   I am going to file this form today along with evidence.

Good luck.

[GBArmy]

He could do the HLR, and, if it happened to be denied, he would have up to a year from the new denial to submit new evidence or submit to BVA with or without any additional evidence.

[Fat]

Seems like you have 60 days from the date of the SOC to opt in to the new system.

What if you go past 60 days, can you still appeal to the BVA?

[broncovet]

IMHO, the HLR is just a "renamed" DRO, except no new evidence.  

My experience is that about 80-90 percent of my DRO's were denied.  I did get "one" awarded tho, but that was a fluke.  

My estimate:  You have about a 1 in 15 chance (somewhere between 1 in 10 and 1 in 20) of being awarded benefits at the HLR leve.  

Your odds are much better at the BVA, according to the chairmans report, cases are overtuned (awarded) at the BVA about 33 percent of the time and remanded about another 40 percent of the time.  

[Vync]

Because the effective date is August 2019, does the veteran have medical evidence showing they currently qualify for the higher rating percentage?

If yes, I would consider filing for an increased rating.

Once you have medical evidence showing you qualify for an increase rating percentage, you can file for that right away as a supplemental claim. They can backdate the increased percentage back to either the date shown by the evidence or date of SC, whichever is later.

 

 

Was the 10% awarded from a new claim (21-526-EZ) or from a supplemental claim? If it was from a new claim, they should also be able to appeal via the supplemental lane instead of HLR or BVA.

 

If the 60 days has passed and supplemental is not an option, I would go with HLR first, but explain why they met the higher rating percentages. You can also explain how the VA made any errors, too. If the HLR is denied, they should still have 60 days from that denial to make it to the BVA. The big question is do they want to wait months or years to be able to appeal to the last lane?