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Supplemental Claim Approved- HLR for Effective Date?


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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Was your original C&P done by VA or VA contractor?  I've never been denied a claim in which the VA or VA contractor stated 'at least as likely as not'.  Outside Dr's nexus and IME have been about 50% approval rate.  The VA sent me for C&P's for all conditions claimed.  Some agreed with the outside IME & nexus, and some did not. The ones that VA disagreed with were denied.

I think you might have a CUE if it was a VA contractor or the VA themselves.  Since they are hired VA guns.

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2 hours ago, El Train said:

Was your original C&P done by VA or VA contractor?  I've never been denied a claim in which the VA or VA contractor stated 'at least as likely as not'.  Outside Dr's nexus and IME have been about 50% approval rate.  The VA sent me for C&P's for all conditions claimed.  Some agreed with the outside IME & nexus, and some did not. The ones that VA disagreed with were denied.

I think you might have a CUE if it was a VA contractor or the VA themselves.  Since they are hired VA guns.

This was at a VA facility, not even a contractor.  I was amazed that I was still denied after that.  But others pointed out that maybe the rationale wasn't quite right.

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I can only think of a few circumstances where appealing a decision "after a year" could work.  

1.  IF you got a decision but did not get your notice of appeal rights, then the decision wont become final until a year after you get notice of appeal rights.  

2.  If you have new evidence the VA did not consider, especially new service records, you can appeal (reopen) due to N and m (now called new and relevant evidence) under 38 CFR 3.156. 

3.  If you got your decision, and, within a year submitted new evidence, they your claim should have been reopened, so, if VA doesnt reopen it, or at least send you a decision why not, your claim could be "live" and ripe for appeal.  

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Can you scan and attach the decision here to include the Evidence List?

Cover your C file # prior to scanning it-

do I undertstand your past posts- and that you have IMOs from Dr. Bash and Dr Anaise which supports the claim?

Did you get those opinions into the RO in time after they denied you?

I guess I mean in response ( timely response) to any SOC or SSOC they sent?

If a HLR sees those opinions  you might not need to go to the BVA.

 

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I think El Train is right from what I see in your older posts.

Folks -this is why it is best to stay in the same Thread, even if it is old....-----I have someone working on my home and can't read the  older posts until  the NOISE stops!!!!!

 

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"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."

When vets post their decisions here, CUE is the First thing  I seek and I do not view CUE as the last resort if it can be the First result.

Have you scanned and attached the decision here anywhere? to include the Evidence List?

You said:

"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?"

The rater CANNOT go against a valid VA opinion.The raters are not doctors.

Something is definitely wrong here- but without seeing the actual decision, we really dont have a clue what went wrong.

You said:

"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."

That is something I sure have never seen before. We often have to pay for an IMO/IME that REBUTTS the C & P examiner's opinion.

 

 

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After reading this past post you made , I feel my CUE post might not help at all Broncovet is right!

"Today I received the decision letter.  50% granted for sleep apnea, effective 1/04/2020 for a payment effective date of 2/01/2020.

Now the only thing left to answer is "how" I can request earlier effective date.

To summarize: I missed the appeals window of the 2016 denial.

The IMO was the only new evidence submitted with the supplemental claim.  The IMO used the same evidence to concur with the C&P examiner's opinion.

Is there another avenue besides CUE to request the earlier effective date?

What is the exact wording of their decision above, as to the January 4 2020 EED they gave you?

"I missed the appeals window of the 2016 denial."

You might have to re open that 2016 denied claim....as Broncovet said above...he is right-----

Did they deny in the 2016 decision because they did not have the IMOs yet?

I think the EED they gave you on the new decision is correct as they said it was the date of the claim you filed.

I will try to find your other past posts but with the post above I found it clarified a lot to me.

And I am still not sure I have interpreted your issue correctly. 

 

 

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Well I have an interesting update now...

Yesterday 6/27 I received my informal phone conference that I requested for the HLR.  The senior rater Agreed with my statement in the HLR that the 2016 denial was in fact a mistake.

He made two points:

1) The denial letter I received stated that there was no evidence in service.  This is incorrect because I did in fact complain of sleep problems and snoring during active duty.

2) The rater should not have overruled the VA examiner.

This is exactly what I was hoping for- the senior reviewer went back and looked at all the details in the 2016 claim and found the error.  I honestly thought I had little to no chance of getting this decision, but I'm glad I went this route.

Great day yesterday!

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I see my post yesterday did not go through-???

This is exactly what HRL is for- to find legal errors , and any other errors, before the decision is finalized.

Asking for HRL review, and/or filing CUE on a recent decision, if successful- will take YEARS off the claims.

I see many cases at the BVA that never should have been there----on remand for what the RO should have done in the first place. A CUE on the RO decision might have changed that picture significantly for some of those veterans.

I am glad you took that "route" too.

CUE should never be viewed at as a "last resort'- it should be the first thing in a decision ,that the claimant seeks.I say "claimant" because many VSOs and reps and even lawyers who rep vets do not really know what CUE is- in my opinion.

And even if a lawyer or agent saw a CUE in recent denial, they might never raise the issue to the veteran because they wont make much money unless the vet goes to the BVA.

CUE is explained in the CUE forum ad finitum.....I think they are the easiest claims of all, in most cases.Particularly when the decision is recent ( within the one year NOD period)

They should be filed ASAP on any recent decision that you believe contains CUE.

 

 

 

 

 

 

 

 

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11 hours ago, Berta said:

CUE should never be viewed at as a "last resort'- it should be the first thing in a decision ,that the claimant seeks.

I agree 100% with this statement. There are a lot of veteran's out there that may be intimidated by CUE's and it is totally unnecessary. The VA is not going to get away with making any legal error(s) in any one of my claims as long as there is breath in my body. Excellent advice Mrs. Berta!!!

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On 2/13/2020 at 10:26 AM, Willy P said:

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.

Please, excuse me but I read your intent in regards to a CUE. Therefore, you can submit a CUE two ways: 1. In writing but your pleading ( reason your claiming CUE) and or 2. Raise CUE through HLR to review. A CUE is not a claim and CV annot be submitted on a supplemental claim form, remember, supplemental  claim requires new and material and a CUE is a collateral attack of erred error on statutory and regulatory statute. Benefit of doubt is not grounds for CUE just Google " Benefit of doubt" CUE and you can read case law on the subject I learned the hard way.

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1 hour ago, Michael Gonzales said:

Please, excuse me but I read your intent in regards to a CUE. Therefore, you can submit a CUE two ways: 1. In writing but your pleading ( reason your claiming CUE) and or 2. Raise CUE through HLR to review. A CUE is not a claim and CV annot be submitted on a supplemental claim form, remember, supplemental  claim requires new and material and a CUE is a collateral attack of erred error on statutory and regulatory statute. Benefit of doubt is not grounds for CUE just Google " Benefit of doubt" CUE and you can read case law on the subject I learned the hard way.

Right, my original intent was to use CUE as a last resort and simply file a HLR to get them to look at the effective date.  Basically I only wrote a sentence or two on the HLR form talking about my situation.  In my case it worked out favorably, but I think I got lucky with my reviewer to be honest.  I thought that benefit of doubt should definitely apply, but since you can't argue that in CUE maybe the VA could CUE itself, if that makes sense...

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This may help.

 ''The M 21 covers this contingency in M21-1, Part III, subpart  iv, chapter 7, section B(3)(a) (requiring correction of errors on the rating codesheet, including disability evaluations, effective dates, and diagnostic codes); id., sec. B(3)(c) (requiring referral of an erroneous decision “to a decision maker to issue a new decision” once an error has been identified).''

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Update 7/3.

It's official- the HLR on VA.gov shows up as closed and my ebenefits effective date on the disability tab goes back to the day after discharge.  Success!

 

image.thumb.png.27a89b11ed9d45a3052ef1ebaef615e1.png

 

Now my only question- it looks like when I try to generate a letter, it keeps showing an effective date of December 1, 2019.  Is this just because that is when the 50% monthly compensation rate was last updated, or is there a mistake?

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