Whats your experience with higher level review?

[FlyboyLeRoy]

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.  

[Buck52]

Roger That Pete

[Vync]

On 3/29/2020 at 1:14 PM, 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.  

You are still in the appeal window, do CUE really does not apply. CUE is like HLR because you cannot submit new evidence, but you don't have advantage of initial HLR like benefit of the doubt and weighing of evidence.

In brief:
Supplemental = If you need to add new evidence.
HLR = No new evidence = Just explain the error without adding any new evidence.
BVA = If you don't mind waiting years to get a response, but they tend to be more accurate.

 

As info, my two CUEs were handled similar to an HLR and they got one right and one wrong. They were opened Sep 2019 and closed Jan 2020. Of course, that was when the VARO's were fully staffed, before COVID19. It also included about 7 weeks worth of screw ups by the VA not knowing which form was needed and asking for evidence which was already in my claims folder. Yes, the red tape is legendary at the VARO...

[Vync]

2 hours ago, pete992 said:

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.

That sounds very similar to what I read on Chris Attig's site: https://www.veteranslawblog.org/va-cue-claims/

A veteran there kept a claim going for a long time. The court examined each decision and found one that was never fully processed. They went back to that one. Once the CUE door was open, everything else was handled as normal.

[Guest]

2 hours ago, Vync said:

That sounds very similar to what I read on Chris Attig's site: https://www.veteranslawblog.org/va-cue-claims/

A veteran there kept a claim going for a long time. The court examined each decision and found one that was never fully processed. They went back to that one. Once the CUE door was open, everything else was handled as normal.

I didn't have to argue a diagnosis, my disagreement was VA's own VAMC medical treatment records. Under 38 C F R 3.156(b) I had date stamped VAMC medical treatment records prior to my original denial. These records were located in my file but were never adjudicated. I used Bernard V. Brown and requested that my entire file be considered for direct service connection. Since I submitted this evidence prior to my denial and prior to my decision, I met this criteria and BVA granted my EED.  Even though VA has discontinued 38 C F R 3.157 Report of Examination As claim this also proved that VA had pertinent medical evidence to grant my claim but failed to review my entire file.

38 C F R 3.156 (b) Pending legacy claims not under the modernized review system.New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board of Veterans Appeals without consideration in that decision in accordance with the provisions of § 20.1304(b)(1) of this chapter), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period.

(4) A retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly, except as it may be affected by the filing date of the original claim.

[Vync]

@pete992 I'm taking the same approach with appealing my CUE denial. The VA lost a C&P exam result and brought me back the following month. I found the exam a few years back in my claims folder. When I filed my CUE, I didn't include it because the other evidence was obvious. They denied an increased % using the same logic as the initial decision. I'm going to use 3.156 because it was never adjudicated.

[broncovet]

Great advice by Pete and Vync.  I agree, on both parts, especially with Chris Attig, and Pete.  Cue should only be used when all else fails.  (If Berta is listening, yes, Berta, I know you have done miracles with Cue, and even won them instead of a regular appeal.  Unfortunately most of us dont have Berta's skill and expertise when it comes to CUE, nor do we have the excellent record of Cue's she has. )

    I know better than to dispute Berta..she is very thorough, and thoughtful.  So if she says to file a Cue from the get go, well go for it.  Othewise, I always go the appeals route first.