What Kinds of Issues Should be Appealed for Higher Level Review? (Part 2)

The answer to this question may change over time.  I think that the answer today is different than when Higher Level Reviews became part of the new VA claims process, called the Appeals Modernization Act, in February 2019. So please keep in mind that what we say today might change.

Right now, we find that an HLR has limited utility. One reason is that the HLR does not allow us to submit new evidence. That means the evidence already in the file has to be strong enough to prove your case. If you need to submit new evidence to prove your claim, you probably would need to file what the VA refers to as a Supplemental Claim to submit that evidence.

If your evidence is strong enough then an HLR may be the right choice, but perhaps only for issues that are clear and straightforward. For example, if your PTSD claim has been denied because the VA said you do not have a diagnosis of PTSD, and your VA medical records show continuous treatment for PTSD, including a month of in-patient treatment, then an HLR may be a good choice. Here, the Decision Review Officer can see plainly that the last decision maker misread your file.

Another example may be if the VA says there is no evidence of a stressful event to support your claim of PTSD, and your claim file has extensive medical records of you being treated for combat injuries.

But if your issue is a complex one– such as whether you meet the requirements for Individual Unemployability even though you don’t meet the threshold rating percentages– you may rather have a Veterans Law Judge consider your case.

Of course, many cases fall in between these two extremes. Each case is unique, so deciding what kind of appeal to file is often a combination of the facts of your case, knowledge of the law, and intuition from the collective experience of the lawyers in my firm. Sometimes the answer as to why I want to file an HLR or not is just because in my gut I think it’s the best thing to do!

At this point in time, on the other hand, we are appealing issues to the Board of Veterans Appeals if we think they need to be discussed with Veterans Law Judge who would decide the case. Remember, for an HLR, I am not allowed to submit more evidence. But at the hearing level, we can submit new evidence and, usually, the Judge will discuss the case with me.

We also think that by appealing to the Board, the VA is less likely to try to develop the case to obtain additional evidence, which often turns out bad. Sometimes at the agency level the decision makers will send you out for yet another exam until they find one to base a denial on. While we think the VA employees who do that are often only following their instructions, it doesn’t make it right.

By Douglas I. Friedman of Friedman Law Firm, P.C.

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