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Whats your experience with higher level review?


FlyboyLeRoy
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Question

Just filed a Higher level review 3/12/2020 with a decision denial with clear evidence and all things needed per cfr 38 for mental health. I am wondering anyone else who has used this route and had look or insight? Time frame? Good experience? My vso said a cue can take a year or so and it's not worth that route, so we just did a HLR with no new evidence and showed them where they were wrong on their OPINIONATED decision. Thanks for your time.  

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47 minutes ago, FlyboyLeRoy said:

Just filed a Higher level review 3/12/2020 with a decision denial with clear evidence and all things needed per cfr 38 for mental health. I am wondering anyone else who has used this route and had look or insight? Time frame? Good experience? My vso said a cue can take a year or so and it's not worth that route, so we just did a HLR with no new evidence and showed them where they were wrong on their OPINIONATED decision. Thanks for your time.  

I did two HLRs recently. I took my remanded BVA claims and opted into the RAMP program using a HLR.  Medical opinions were requested from the same VA examiner who had previously given negative opinions. She rubber stamped the previous denials. The VA found a duty to assist error in my claim so I was allowed to request a 2nd HLR where I asked for a different rater and an informal call. Unfortunately, I missed both calls. Medical opinions were requested from the SAME examiner where she again rubber stamped the previous negative opinions so it was denied again. 
 
DVA recommended sending it back to BVA or obtain a nexus statement. I didn’t want my claim languishing at BVA again knowing that the remind requested that the same examiner take another look at my claim. I asked my orthopedic surgeon and he wrote the letter on my behalf. I figured there was no way the VA would take this NP’s opinions over a board certified orthopedic surgeon who has been treating me for the last 6 years. I submitted a supplemental claim with the nexus letter and I had new exams from a contract VA examiner and claims were finally approved. However, they made the effective date the date that I submitted the supplemental so I just submitted another HLR asking for an earlier effective so we’ll see what happens. 

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I would advise keeping your claim as close to home as possible.  The higher you go the more complicated it gets especially if you have a CUE.  I pursued a CUE all the way even through the court system.  It took six years to lose but lose I did.  Evidence is all.  If you can get it reviewed at the VARO level they can give you all you need.  IMO BVA...COVA means years of waiting and they shoot you down over technical matters.
 

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Do NOT submit new evidence with a HLR, its specifically prohibited in that type of appeal.  If you have new evidence, either use SCL or BVA.  

Its been my experience that, especially if this appeal involves LARGE retro, skip the VARO appeals (HLR or SCL), and head straight to the BVA.  Its my opinion, shared by other Vets advocates, that VARO rating specialists "do not" have the authority to authorize six figure retros.  This needs to be done by a judge, so you might just as well skip those VARO appeals.  (HLR or SCL).  

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17 hours ago, john999 said:

I would advise keeping your claim as close to home as possible.  The higher you go the more complicated it gets especially if you have a CUE.  I pursued a CUE all the way even through the court system.  It took six years to lose but lose I did.  Evidence is all.  If you can get it reviewed at the VARO level they can give you all you need.  IMO BVA...COVA means years of waiting and they shoot you down over technical matters.
 

John999, I would have to agree/disagree.  I think a veteran should take the closest highway/avenue he/she is given to resolve their claim issues. example:

1. File a NOD within one year of a decision if possible.

2. File a NOD and CUE simultaneously.

3. Re-open a claim and if granted then file a NOD for EED.

4. File a CUE.

 

Of course for me the last thing a veteran should do is to file a CUE claim because the threshold is so high to win and it could take years.  A CUE claim is very hard but it is not impossible to win .  I have won several CUE Claims and the latest took my effective date all the way back to one of my original claims.  BVA remanded my appeal and the local VARO denied it and then the  BVA judge decided to deny my appeal also.  I then got a lawyer and my appeal went to CAVC which was remanded by them and then BVA granted my claim/appeal.  When I filed my original claim it was denied and I filed a NOD. I reopened my claim and it was denied a second time. This time I filed a NOD and kept it in continued pursuit until it was granted but the VARO low balled my rating. I filed a NOD for increase and VA conceded a CUE was made and increased my rating but not my effective date. I filed another NOD for my effective date and in reviewing my appeal/claim BVA determined that they made a CUE.  Under Bernard V. Brown, 4 Vet.App. 384, 390 (1993) once a claim is re-opened a claimant is entitled to have his/her claim re-adjudicated on the basis of all the evidence of record, both old and new.  BVA determined that my original NOD was never processed and adjudicated by VA and the evidence that I had submitted was enough to grant my claim. So BVA went beyond my re-opened claim and granted my effective date of my original 1998 claim because the evidence warranted service connection at that time. This is a recent order and I am still waiting for my new decision but I have already won.  We all know that there are times when the local VARO will refuse to grant a veteran service connection and or an increase.

Extra: Since there is no time limit on filing a CUE claim and the fact that a CUE claim is only a CUE claim once a decision has become final then the veteran has unlimited time compared to filing a NOD or re-open a claim.

 

 

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Pete992

Question?

was you getting compensation during these appeals all the way from the time you were service connected and rated  to your final EED WIN?

OR DURING YOUR APPEALS?

Reason I ask is I am working on a CUE for EED at present,  I am getting all my evidence in order at present...I've been getting compensation since 2000, 100%P&T with SMC S & K

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Yes, I think I understand your question. This original claim was filed and denied 1998.  I reopened it in 2005 and it was denied. I was finally granted it in 2014 for the first time. This is a separate an unrelated disability, I was/am  rated 100% for other disabilities. Because I have been rated for other disabilities and this is separate and new,  VA has to recalculate all my rating decisions to include COLA increase back to 1998.

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