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Questions on higher level review


osidevet
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Hi. My supplemental claim was denied based on lack of service connection, but the primary reason used for denial was a statement from the reviewer that I stated the issue started 2 years ago to the VA doctor. This is not true, and VA doctor notes state something else entirely. She wrote that it is a "longstanding issue" that has gotten worse in the past year. That's not exactly what I told the doc but I can't change doctors notes. I am planning on filing a 20-0966 for higher level review to talk with someone to dispute what was stated in my denial letter. I know no new evidence can be submitted which is fine, but I assume I can reference the existing evidence in my appeal? Also, my VSO wants me to fill out a separate statement on a form 20-4138, I don't want to keep stating the same things I have already written previously so I'm asking if you all have any suggestions on how to approach this? Thanks.

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Your VSO might be right, but IMHO a 20-4138, statement in support of a claim is actually new evidence if you are just doing it now.  The only way HLR will work is if you have non-questionable evidence in your file that backs up what you are saying. If your examiner said you said 2 years ago, what do you have that refutes that? Does your doc who was treating you at the VA have statements or factual evidence that support your position? If so, you may have a chance at HLR. But to be honest, it has to be right there in previous evidence. It is just too easy for the DRO just to go with the previous decision. You would probably have better luck going for BVA, with additional evidence, including your own buddy letter your VSO wants. It's a time thing; it is a lot quicker getting a decision at HLR, but it might not be the decision you want to get. Maybe not what you were hoping, but that's my position without knowing any more specifics.

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Of course it is your decision on how to proceed from here but I recently won a 20 years BVA grant where the BVA found my claim and my evidence as credible and consistent. VA/BVA/CAVC all are aware that C & P examiners opinions differ but having both treatment records and veterans statements can be proven as credible evidence to warrant a service connected condition.

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GBArmy - regarding your question about the 2 year statement, the doctors notes state the issue is "long standing", but has become worse in the past year. That is in my VA medical record. The examiner has no basis for stating that it started 2 years ago, it isn't true and it isn't in any of my medical records. Then he uses that as a supposed inconsistency with what I told the C&P examiner. which was that I had onset during my active service. To be graceful, the examiner mis-understood my records.

The additional statement 4238 was suggested to clarify my issues with the decision, not to introduce additional evidence. I was planning on that being a very brief statement referencing existing evidence and apparent inconsistency between the evidence and the decision rationale, which was false.  

Thank you, I appreciate any additional advice.

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1 hour ago, osidevet said:

the examiner mis-understood my records.

I have had some problems with this myself. If it is in your SMR's then point it out to them where they can't miss it. I am working on one and they are going to get a lot of paper from my SMR's and I am going to type up or print out what the doctor's chicken scratching said so they can see exactly what is in my record.

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I have just gone through the HLR process myself, and having the opportunity to speak to the rater to clarify inconsistencies that I thought were in the denial was helpful, and resulted in my claim ultimately being approved. It can't hurt, as long as you are not too close to your year date where you will loose your filing date if the HLR is not finished.

You said that "that statement" was the primary reason for the denial. Are there other reasons for the claim to be denied, in the absence of that statement? If so, you should make sure there is medical evidence in your file that will overcome them as well, that you can bring attention to when you speak to the rater. If not, perhaps you will need to take time to gather that evidence and choose the appeal option that will allow for submission of new evidence.

Good luck.

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