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.

[broncovet]

Jenny posted:

Quote

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.

Dont use a higher level review (HLR) when submitting new evidence.  THE HLR specifically excludes new evidence, so dont use that.  Do one of the following, or some combination:

1.  New evidence submission under 38 cfr 3.156. 

2.  Or, appeal to the BVA again using 38 CFR 3.156

3 File a 38 CFR violation, Cue.  Here is the format to do this:

We have templates for  CUE within the appeal period- this will work:  as I understand what you posted:

To whom it may concern:                        date

This is a request for revision of your recent decision ,under auspices of 38 USC 5107.

https://www.law.cornell.edu/uscode/text/38/5109A

In your recent decision of ( date) you made no attempt to verify my stressor via Joint Services Records Research Center and completely ignored the  ( date) Buddy Statement, I had from ( name) which I have again enclosed.

Your clear and unmistakable error was a violation of 38 CFR 4.6 .

§ 4.6 Evaluation of evidence.

"The element of the weight to be accorded the character of the veteran's service is but one factor entering into the considerations of the rating boards in arriving at determinations of the evaluation of disability. Every element in any way affecting the probative value to be assigned to the evidence in each individual claim must be thoroughly and conscientiously studied by each member of the rating board in the light of the established policies of the Department of Veterans Affairs to the end that decisions will be equitable and just as contemplated by the requirements of the law."

https://www.law.cornell.edu/cfr/text/38/4.6

Due to this legal error  - an "element" of probative value never received the proper consideration and  the decision held a manifested altered outcome for me , that was to my detriment.

I request a decision that is based on evaluation of  the enclosed buddy statement that you received ( date - if you know the date of USPS tracking slip or ebenefits entry.)

Enclosed:

Decision of ( date)   (-pages) ( they just need   the decision cover letter ,Evidence list and denial rationale)