VA Higher-Level Review

Category: Veterans Disability Law

Article by Daniel J. Tuley

The U.S. Department of Veterans Affairs (VA) is responsible for assessing and rewarding compensation to individuals who receive disabilities from military service. The VA is also responsible for handling any appeal requests that are submitted considering unfavorable decisions. One of the main processes used to help veterans receive maximum benefits is VA Higher-Level Review.

What is a VA Higher-Level Review?

A VA Higher-Level Review is when a veteran disability claim decision is looked at by a senior reviewer. When a veteran submits a VA disability benefits claim for a service-connected condition they received during their time in active service, the VA decides what should be rewarded, if anything, based on the evidence presented. It’s not uncommon for a claim to be denied, or for a veteran to receive a lower disability rating than they believe they deserve. To receive their desired compensation, veterans have the option to appeal a VA decision.

Higher-level review allows the veteran to resubmit their case to a more experienced member for review. The senior reviewer will look at all the same information presented in the original claim, to then make their own decision. A veteran may receive a higher rating or more favorable decision if the initial reviewer made any mistakes or did not properly conduct disability assessments. The rating will likely be changed if the new decision benefits the veteran. The only time a rating can be changed in a way that is disadvantageous to the claimant is if there is clear evidence of a major error that indisputably proves the original decision was incorrect.

Previously, this was done through the Board of Veterans Appeals (BVA). Thanks to the Veterans Appeals Improvement and Modernization Act (AMA) of 2017, however, veterans have more options for appealing VA decisions that are much quicker.

AMA and The Difference Between VA Higher-Level Review and Supplemental Claims

Both Higher-Level Reviews and Supplemental Claims are a part of the AMA. As of February 2019, the goal of this new law was to reduce pressure on the BVA and streamline claim review decisions. The average time for appealed claim decisions was previously around four years but has drastically improved to roughly four months.

The AMA allows veterans to have their case looked at again through a Higher-Level Review or a Supplemental Claim. While Higher-Level Reviews involve only the same information that was cited in the original decision, Supplemental Claims allow extra evidence to be examined. Higher-Level Reviews are conducted with no new data by a more experienced reviewer. Supplemental Claims are conducted by a reviewer of the same level, however, the veteran may submit more relevant testimony or evidence to try and appeal the original decision.

When Can VA Higher-Level Review Be Used?

A Higher-Level Review is typically used to correct a misinterpretation of fact or law when deciding a disability claim. Since there is no new evidence submitted when applying for a Higher-Level Review, veterans often file a request when they expect that a mistake was made.

A veteran may pursue a Higher-Level Review if the adjudicator assigns a low rating even when the criteria for a higher rating are clearly met in the submitted medical records. Another common example in which a senior reviewer may be called in occurs when the original adjudicator dismisses a veteran’s disability as not being service connected. Sometimes lower-level adjudicators miss certain entitlements or exceptions such as presumptive service conditions. Presumptive conditions are assumed to be connected to specific military events and therefore don’t need to be proven in a claim.

A Higher-Level Review can help correct mistakes made by adjudicators that led to a lower disability rating or denied claim. If the veteran is looking to submit additional evidence that was not included in the original disability claim, they may consider filing a Supplemental Claim.

When Can’t a VA Higher-Level Review Be Used?

Under the rules of the VA, there are two specific scenarios in which Higher-Level Review is not allowed. The first is when additional evidence is desired, and the second is after losing a Higher-Level Review.

The VA will not stop a veteran from submitting new evidence with a Higher-Level Review request, but it is stated in the VA’s rules that new evidence will not be considered. If the original claim was lacking an important piece of evidence, such as specific medical records or assessments necessary for a rating, a VA Higher-Level Review will not benefit the veteran in any way.

Another instance in which a Higher-Level Review VA claim cannot be submitted is after one case has already been lost. If a Higher-Level Review decision phase doesn’t fix a problem in the original claim, the veteran must submit additional evidence through a supplemental claim or appeal to the BVA.

Procedure for Higher-Level Review VA

Within one year of receiving a decision for the original VA disability claim, the veteran must submit a completed VA Form 20-0996, Decision Review Request: Higher-Level Review. The completed VA Form 20-0996 will then undergo a de novo review. This means that the adjudicator will reexamine the claim with no deference to the prior decision unless the findings are favorable and proper.

Higher-level reviewers can base their decision changes on a de novo review or a difference of opinion if and only if the appeal is advantageous to the claimant. An adjudicator can reverse or revise any prior VA decision, even if it’s disadvantageous to the claimant, with clear and unmistakable error (CUE). CUE is a term in 38 CFR 3.105 that represents a very specific type of error which compels a conclusion that reasonable minds could not disagree with. If CUE were not available, the decision would be completely different. The certainty of CUE is necessary when it comes to the VA Higher-Level Review correcting errors that negatively impact a veteran’s original claim.

The senior claim adjudicator will then issue a decision based on the existing evidence and inform the claimant of the VA Higher-Level Review results.

VA Higher-Level Review Timeline

After submitted, the basic timeline for one of these reviews in the VA’s hands looks something like this:

• The VA will confirm that the Higher-Level Review application is complete and that the problem is eligible for this process.
• The VA will identify whether or not the application requested an informal conference. If an informal conference is requested, they will attempt to schedule a meeting with the claimant.
• The VA will decide if the VA made a mistake in its duty to assist during the prior decision. If the VA is not capable of issuing the maximum benefit for the claim, it will be returned for further development and a new decision. Reviews for that mistake are complete.
• The VA will also check if any evidence submitted with the Higher-Level Review was not originally included in the prior decision. If new information was added to the claim the VA will inform the claimant that they cannot consider it.
• Taking into consideration unusable evidence and VA errors, the VA will review the prior decision de novo, using no new evidence and ignoring precedence of prior decisions unless they benefit the claimant.
• The VA will then complete the Higher-Level Review by issuing a decision and returning it to the claimant.

According to the VA, the average time between a request being submitted and when a VA Higher-Level Review is closed falls around 125 days.

Requesting VA Higher-Level Review

A Higher-Level Review will not be performed by the same office as the original decision. Only experienced adjudicators who did not participate in the original decisions will be allowed to conduct secondary reviews. Decision Review Officers (DROs) employed at decision review operations centers (DROCs) are individuals with the authority to conduct Higher-Level Reviews.

While veterans can request that the office of original jurisdiction conduct the appeal, the VA can only accommodate this request if the DROC office and original office are co-located in the same place, or if there is only one office that adjudicates a particular type of claim.

A complete request for VA Higher-Level Review requires the following information:

• The veteran’s name, or the claimant’s name and relationship to the veteran, if applicable.
• The calendar date of the original decision for which the review is being requested.
• The signature of the veteran, claimant, or individual who is legally authorized to sign for the claimant, and
• Any specific issues the review is being requested for. If the claimant has a potential issue with the claim in mind, they can submit notes that point the senior reviewer in the right direction to streamline the process.

The more complete a request is, the quicker the VA will be able to return a new decision.

VA Higher-Level Review Informal Conference

An informal conference is a telephone meeting with the senior claim adjudicator that allows the veteran to explain where they believe mistakes occurred in the original decision. If the veteran believes the original adjudicator missed something about service-connection, or information in the medical records, an informal conference is the time to point it out.

Legal representatives can also participate in informal conferences. A VA disability lawyer can be very beneficial during an informal conference with communicating evidence and properly presenting information.

It’s important to note that the VA will only make two attempts to schedule an informal conference. If the veteran does not answer the calls, the senior adjudicator can issue a decision without talking to the veteran.

VA Higher-Level Review Benefits

The goal of a Higher-Level Review is to overturn a prior decision. If the prior decision involved a denial of benefits or a lower than expected disability rating, the veteran could significantly increase their compensation through the appeals process.

Unless there is clear and indisputable evidence that shows the original decision was incorrect, requesting a Higher-Level Review cannot be disadvantageous to the claimant. If you are a veteran with any reason to believe that you deserve more compensation, it may be beneficial to file for an appeal. The first step you should take is to reach out to a VA disability lawyer for a consultation to see if you have a case. 

Contact Tuley Law Office for Assistance in Submitting a Higher-Level Review VA

Tuley Law Office has a team of veteran affairs attorneys with the knowledge and experience to guide you throughout the legal process. Contact a member of our team today at 812.625.2053, or use our contact form for a case evaluation.

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