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Fat

Appealing Decision

Question

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.

 

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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?

 

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What is the 60 day time frame?

The date to opt in if in the old system?

After Feb. 2019 are you already in the new BVA lane/system? Would the 60 day period apply.

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1 hour ago, Fat said:

What is the 60 day time frame?

The date to opt in if in the old system?

After Feb. 2019 are you already in the new BVA lane/system? Would the 60 day period apply.

I think it depends on whether the claim was initiated under the old or the new system. I was probably wrong assuming 60 days.

https://www.va.gov/decision-reviews

I checked this page and found that under the new system, it's one year to submit an appeal for supplemental, HLR, and BVA.

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I would probably second  Broncovet's opinion on HLR. I would only use it myself if it was an obvious over site that the VA made. There being very strong evidence in the case but the rater somehow overlooked it. Think of it as a simple CUE. An example: the examiner states the veteran has tinnitus, but instead of awarding 10%, they award o%. Since 10% is the lowest and only rating provided for tinnitus, the DRO might just change the award at HLR. Not always, mind you. There is a lot of evidence that they will deny anyway and make you appeal again.

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I would go to the BVA if you have medical evidence.  I believe the HLR's are not overturning bad results as well as the BVA.

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