Can you do a Higher Level Review and CUE for GERD at same time-but different percents?

[flynsolo2]

Hello!! I wish I would have found this site before, because WHAT.A.NIGHTMARE the VA disability process is. 

Bear with me as I try to explain my thinking:

Okay, so I have had GERD listed as a condition at 0% rating, but, after fighting for an increase, it was given on 1-28-2019 (and as such, I cannot see when the 0% was given). However, even in the notes from endoscopy AND the dr noted epigastric distress, dysphagia, constant pyrosis (heartburn), shoulder pain-ALL things that should get a better increase to 30%. I submitted a claim for increase May 8th, 2019. It was quickly denied, stating not proper forms. Resubmitted with proper forms but still denied July 2019. Took a break from trying, went through my VA files, gathered evidence of all previous endoscopies, VA doctor's notes, medication lists, and resubmitted. Denied on 4-2020. So, now I have for a higher level review. They received that in September, and now I wait.

My question is-I did not know that I could do a CUE form to have the date for GERD go back farther than the date given for 2019. While I do not think I could get earlier than 2019 for the 30%, I believe I could get the 10% rating. I have a endoscopy dated all the way back from Oct. 2006 stating that there is "esophagitisis" and "intermitten small sliding type hiatal hernia" with notes stating that I was complaining of heartburn and shoulder pain as well. Additionally, from an endoscopy from April 22, 2010, it states the reason for the edoscopy was "epigastric pain" and showed "moderate amount of gastroesophageal reflux and intermittent small sliding type hiatial hernia". 

So, my question: how long does a Higher Level Review decision take? Also, once a higher level review takes place, and they do grant the increase from 2019 from 10%-30%, is it too late to do a CUE for 10% from at least 2010? Can I do a CUE as the same time as a higher level review, if I am not looking for the 30% in 2010, just the 10%? Does any of this make sense? ANY help/guidance with this would be appreciated.  Had I realized there was this website, I would have come here first!!!.... 

Edited October 7, 2020 by flynsolo2

[Berta]

We answered this question here:

https://community.hadit.com/topic/82385-left-shoulder-secondary-to-right-shoulder-residuals-compensation-date-change/#comment-498274

CUE can be filed at any time in the future, but I feel you need to wait for the deferred decision.

And meantime you need to read up on the critical aspects of CUE in our CUE forum, and then figure out what legal errors the VA made,if any,  in the past denials.

 

 

Edited October 7, 2020 by Berta
added more

[flynsolo2]

@Berta,

 

Thank you for the link, although the link was for a shoulder claim. I was asking about a GERD claim. My GERD claim was finally upped to 10% last January, however, I have almost all the markers for 30%, so, I submitted for an increase several times, they denied it once, second time said I did not have the proper form, third time, denied it again, so, I submitted a higher level review. However, after finding this website, I see that I can submit a CUE for an earlier date than Jan.2019. But, right now, it is in higher level review. In a way, you did kind of answer my question, you said a CUE can be done anytime. But, I am wondering, it is in higher level review now. I do not think I qualified for the 30% (evidence wise with symptoms and endoscopy results) before Jan.2019, but, I DO think I qualified for 10% YEARS ago (again, with evidence of doctor's notes and endoscopy results). So, my question is-how do I submit a CUE for the 10% if the GERD claim is in higher level review for an increase to 30%? Is it possible to even do a CUE for the lower percentage IF it's in review for an increase? The earliest that I can clearly see the qualifications for the 10%(at least 2 symptoms from the 30% category-shoulder pain, spigastric distress, heartburn) is from April 2010, so, I DO feel it is worth getting the retroactive pay for the 10%-I am just not sure it is possible with a higher level review going on for an increase. Does this make sense?

[broncovet]

HLR's are a Regional office decision without new evidence.  My advice is for you to think of this IN order:

1.  Service connection or no.  To get SC, you need the Caluza elements.  

2.  Only after you are SC, should you think about the percentages.  The percentages are meaningless unless SC.  

3.  Last, you think about the effective date.  

     Your effective date will be the later of the date the doc diagnosed you with Gerd (facts found) or the date you applied, with some exceptions.  

     If your condition got worse, a Fenderson (staged) rating is possible.  

     You wont be getting an effective date back to 2010 UNLESS you applied in 2010.  The VA does not award benefits to Veterans who do not apply.  If you applied in 2010, yes, you may be able to get that effective date, "provided that" you had Caluza elements documented as well as your symptoms documented.  

      In other words, you can only get a 2010 effective date if you applied back then, and were sick back then also.   Evidence by the doctor that you had the condition in 2010 is insufficient UNLESS you had applied back then.  

[flynsolo2]

@broncovet

 

Thank you. This helps. 

My GERD says that it was awarded the 10% (previously 0%) on Jan.2019, as determined by predischarged exam. I have two claims-one from 2015 one that is from 2010, both say Claim for Authorized Review, but, do not actually list what I was trying to get done (I do have the 'premium' membership, but, the VA websites are terrible!!), so, after asking on a different thread, it seems I will need to request those claim documents (I do not have physical copies anymore). I do know that I was previously rated at 0% this entire time, and as I stated, it says that it was determined by a predischarded exam, but, unless these two "authorized review" claims have my GERD claim increase, then the earliest GERD claim increase I can find is 2017. So, after I receive my copies of my claims, I will go from there....I appreciate your help! Wish I would have found you all soonner.......

[broncovet]

You can view your CURRENT cfile at your VSO's office "provided that" (s)he has VBMS access, and not all VSO's have this (but all should have it..to me, its like being a taxi driver and not having a car or having access to a car)  

If your VSO "does not" have VBMS access, I would consider getting a different VSO who does.  Its some work to get VBMS access, but they should not be lazy and be willing to do that to help Vets.  

Your attorney, or non attorney representative, also, may have VBMS access.