High level review vs. appeal

[Jenny]

I recently submitted a claim for an increase in benefits related to several service connected conditions that have gotten worse over the past 15+ years. I did it on line with the submission of outside medical records and lay statements from co-workers. The process went pretty smoothly in terms of getting an appt for a C&P exam, but when I received my letter (yes denied), it only had my VA medical records and the C&P exam listed as the evidence reviewed. When I called the 1-800 number to ask if the evidence I submitted had been looked at, she said no. She said I would have to appeal with resubmission of the evidence already submitted and ignored. I asked about a higher level review for their mistake, but she said they wouldn't look at the evidence I originally submitted since it wasn't looked at in the claim.

 

I feel like we, as Veterans, are doing most of the work for the VA and all they want to do is push the answer out to claim that they are keeping their numbers in line as opposed to working a claim correctly the first time. 

 

Any thoughts on how I should pursue this are appreciated.

[brokensoldier244th]

How did you submit the private records? If you uploaded you should have had a time stamp and they should still show on va.Gov. If they were of record and weren’t reviewed you can file a CUE or appeal the original and point to where your provided the records. if you handed copies to the examiner they aren’t required to accept it. They have to scan it in and log and account for it and they honestly don’t have the time. 
 

I’d lean towards appeal/supplemental if you are within a year. CUEs have very strict rules, are easy to mess up, and ultimately accomplish much the same as an appeal/supplemental.

HLR can only re-review the evidence used in the original claim, new evidence isn’t considered in an HLR. 

[Whodat]

Welcome,

Broken is correct. Also VA has a duty to assist. Did the VA assisted you by obtaining records from outside sources?

[Jenny]

Appreciate the input.

I submitted the request on line and uploaded the documents. The VA 1800 number person is able to see them with the time stamp and agrees they were there for the raters to review. They just didn't. 

I would say the VA did not assist. The e-file option is really asking the Veteran to get and tie all the information up with a bow for the VA to rate. Unfortunately, doing all the work for them did not result in them doing their small portion to get it right.

Always appreciate reading and learning from this site. Thank you.

 

[Whodat]

When I usually use my outside providers, I usually upload it in my healthevet as well as take it to my local VAMC to ensure it's input into my VA records. 

But in your case, since that it wasn't reviewed, in my opinion, that should be new and material evidence. I could be wrong, others feel free to chime in. 

[pacmanx1]

Unfortunately, the 1 (800) number is somewhat correct. Even though you submitted the evidence prior to your decision, an HLR may or may not accept and consider this evidence. Who can say if they would or would not. Yes, it would be a lot faster and easier on the veteran if they would, but I would say 8 ½ times out of 10 the HLR will/would only review the evidence that the VARO made their decision on, causing the veteran to have to file an appeal to the BVA.

HLRs are taking anywhere between 125 days to a years-time and a direct review appeal to the board of appeals are taking about 12 months to 18 months. Even if you filed an HLR and was denied again, you would then have to file an appeal to the BVA, and the processing time could be longer. This is why some of us say just file an appeal to the BVA because they would look at all the evidence and your entire records prior to making a decision.

Under the AMA program the BVA was supposed to process appeals faster but as of right now as I am responding to your post, it is taking the BVA even longer and that 365 days is long gone because most of us are sitting at 500+ days and the VA/BVA say that there is no timeframe to complete any BVA decision. It sucks, I mean it really sucks.

It is a lot simpler if you are within your 1-year appeal time to file a timely appeal instead of filing a CUE claim. They both will get you the same benefits but filing a timely appeal is a lot easier because filing a CUE claim is more specific and you have to prove that the VA made an error whereas filing a timely appeal is much easier by proving the VA did not review all your evidence. Cue claims are not impossible, some of us have won them but if you are not familiar with the regulations it could be very tricky.

 

[Vync]

I agree with @brokensoldier244th that you should resubmit the additional evidence as part of a supplemental, which is a form of review which allows you to submit new evidence. Just be sure you document what got screwed up.

The advice by many to do this within a 1 year window from the decision letter date is very important. If you win SC, the effective date is preserved.

If submitting for an increase, check your medical records from the 12 month period prior to when you requested the increase. If they contain proof that you qualified for a higher rating, be certain to include that. I know many vets have had success with medical records, but I am not sure if they will honor the buddy statements the same way...

I have had cases where documents I uploaded simply never made it into the VA documentation system. Also, I have had other cases where I submitted documents which were verified to have been received, but the claims were closed out without the documents being reviewed.