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Supplemental Claim Approved- HLR for Effective Date?

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Willy P

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Good Afternoon Team,

Short back story/timeline:

  • Left Active Duty: August 2015
  • Diagnosed with Sleep Apnea February 2016 (6 months later)
  • Submitted claim in May 2016 with my evidence: 
    • Sleep study
    • DBQ
    • In service complaint of snoring exerpt from my medical record
    • Favorable C&P Exam opinion (at least as likely as not...)
  • VA Denied my claim in August 2016
  • I did nothing because I didn't think I could come up with any other evidence

Fast forward to last year.....

I scratched some pennies together and paid for an IMO, then submitted the letter via a supplemental claim.  I was awarded SC for sleep apnea at 50% within a month of the VA receiving my claim.  Success!  Here is the link to that process in the research forum: 

 

So here is my line of thought...

Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.

Since I am within the appeals period of the supplemental claim, I'm thinking the easiest path may be to request HLR in order to ask them to CUE themselves on the 2016 decision.  Is that possible?  I'm just trying to avoid CUE if I can, since it's mainly a "last resort" type of measure.

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Congratulations on winning SC! 

Your claim is finished, but not finalized. It becomes final when your appeal window expires. One of the requirements for CUE is that the claim be final. HLR, supplemental, or BVA appeal options are still available and would probably be the best choice. You have a lot more options available via appeals than with a CUE. 

1 hour ago, Willy P said:

Can I use HLR to fight for an earlier effective date, or do I have to use CUE?  I mean, the VA had everything it needed to make the proper rating the first time (In-service event, nexus from the C&P doc, current diagnosis...).  I have a hard time with the fact that I had to pay an outside doctor just to agree with the C&P exam doctor.  Why would the rater place his/her opinion over the VA's own doctor?  Shouldn't the benefit of the doubt have gone to me?  From what I understand, I can't CUE the benefit of the doubt anyway.

I agree with you 100%. Keep in mind that the VARO does have certain standards when they review a C&P. Just because it says "as least as likely as not" doesn't mean they can or should grant SC. Imagine if your friend was an LPN (nurse with 2 year degree) and wrote you an IMO. The VA would probably disqualify it because the LPN was not sufficiently qualified to make the opinion. Then the VA would refer you for a C&P with a qualified examiner.

See the link I posted below. It includes a section on how to review examination reports. They have a checklist of things to confirm. If an examination is insufficient, the VARO can kick it back to the C&P doc for clarification or re-examination. However, the VARO cannot simply discard the C&P exam outright. They have to be able to explain why the exam was not adequate or was rejected.

 

M21-1, Part III, Subpart iv, Chapter 3, Section D - Examination Reports

Article ID: 554400000015812

https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000015812/M21-1-Part-III-Subpart-iv-Chapter-3-Section-D-Examination-Reports

 

 

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Thank you for the link!

I have to admit, I got a little optimistic while reading about HLR.  I would look forward to having a phone call with a reviewer to state my side of the situation.  It sounds like HLR is the next logical step, since I won't have any new evidence and it is much quicker than VBA.

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On 2/13/2020 at 10:23 PM, Willy P said:

Thank you for the link!

I have to admit, I got a little optimistic while reading about HLR.  I would look forward to having a phone call with a reviewer to state my side of the situation.  It sounds like HLR is the next logical step, since I won't have any new evidence and it is much quicker than VBA.

Any updates Willy?

I have the exact same situation. Submitted in 2016 and 2019 for OSA and the imo in April got me sc but my ED is April 2020. All the physical medical evidence was the same as before, all the imo did was prove what I was saying in 2016/19 was true and the va was wrong. Wanting to change my ed and hoping you had some updated info 

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On 6/21/2020 at 8:00 AM, USMC_VET said:

Any updates Willy?

I have the exact same situation. Submitted in 2016 and 2019 for OSA and the imo in April got me sc but my ED is April 2020. All the physical medical evidence was the same as before, all the imo did was prove what I was saying in 2016/19 was true and the va was wrong. Wanting to change my ed and hoping you had some updated info 

Hey brother,

HLR is still pending as of now, been going on 5 months.  I'm not entirely confident, but I wanted to try HLR before submitting a CUE.

I try to post all updates in my original thread so it may help someone out some day:

 

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My advice?  Dont use HLR.  Instead go directly to the BVA where you have better than  2/3 chance of winning or at least a remand.  Source: BVA chairmans report.  https://www.bva.va.gov/Chairman_Annual_Rpts.asp

In the newest BVA Chairmans report, the board awarded 35.7 percent of Veterans appeals and remanded another 38.9 percent. If you add these, that is about 75%.  Remember, tho, at least some of the board denials will be remanded or granted at the CAVC, so your chances, in 2019 are actually over 75 percent.  I have heard several numbers about percentages at the VARO (including HLR and SCL) but mostly about 80-90 percent of those are denied.  This is especially true with HLR.  Remember, a fellow employee has already denied, and its super easy to follow the previous rater's lead and stamp it "denied again".  Its much harder to call your fellow employee out and essentially call him/her a liar and award benefits he or she previously denied.  

Reason:  Do you think the VA allows rather "low level" employees authorizing a six figure check for retro without direction from a judge or "high level" VA employee such as VARO Director or VASEC?  I dont.  

Quote

If any Vets here have won "significant Retro" (over 25 k) at a HLR without a previous BOARD decision or higher, please correct me. ...crickets.....I didnt think so.  

This means you need to get your claim to the Board as soon as possible, and you dont need a distraction such as HLR.  

    While I did win some benefits from a DRO decision (which is the equivilant of a combination of SCL and HLR), it wasnt before I filed a Writ of Mandamus where the VARO director had to respond to the court some of the actions regarding my claim.  My DRO decision was obviously "under the direct influence" of a high level employee.  

     You are welcome to try the HLR.  But, if the retro is significant, probably over 25,000, dont hold your breath.  

Edited by broncovet
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Thanks for the feedback Bronco.

Just to be clear- I submitted the Supplemental after the 1 year appeal period (2016 denial and 2019 Supplemental claim).  The HLR is basically just a hope that they recognize that the VA got it wrong in 2016- maybe by CUE'ing themselves?

Do you think BVA would be effective still?  I was thinking if HLR is denied, maybe I should jump to CUE...

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