VA Higher Level Review, Good or Bad?

The VA Higher Level Review is the first option under the new VA appeals process, following the implementation of the VA Appeals Modernization Act.

At VA Claims Insider, we’ve seen some incredible success so far using the Higher Level Review if a veteran disagrees with some or all of the VA’s rating decision regarding your VA disability claim.

Real examples of the Higher Level Review option in-action:

1. Higher Level Review for Obstructive Sleep Apnea decided favorably by a Decision Review Officer (DRO) in 15 calendar days.
2. VA Higher Level Review for PTSD increase decided favorably by a DRO in 17 calendar days.
3. Higher Level Review for Somatic Symptom Disorder secondary to Back/Neck conditions decided favorably by a DRO in 20 calendar days.
4. Higher Level Review VA for GERD increase decided favorably by a DRO in 24 calendar days.

Higher-level reviews (HLRs) consist of de novo reviews of the issue(s) identified by requesters on a completed VA Form 20-0996, Decision Review Request: Higher-Level Review.  De novo review means the adjudicator reexamines and readjudicates the claim in question without deference to the prior decision, except for proper favorable findings. 

In addition to de novo review, a higher-level reviewer may also change a decision based upon difference of opinion.  The higher-level adjudicator may not use difference of opinion to revise the decision in a manner that is less advantageous to the claimant.  However, the higher-level adjudicator may use clear and unmistakable error (CUE) under 38 CFR 3.105 to reverse or revise, even if disadvantageous to the claimant, any prior VA decision.  However, absent a completed VA Form 20-0996 for the issue, the higher-level reviewer does not have jurisdiction over any assertion by a claimant of CUE.

Any finding favorable to the claimant is binding on subsequent adjudicators, including both higher-level reviewers and other decisionmakers, except when rebutted by clear and unmistakable evidence to the contrary. 

VA must receive the completed VA Form 20-0996 within one year of the identified notice of decision on or after February 19, 2019.  If not timely received, inform the claimant using letter HLR Not Timely.

VA cannot consider simultaneous requests for a supplemental review and HLR of the same issue.  Inform the claimant of this restriction using letter, HLR Rejection. Process the non-HLR issue unless VA promptly receives a written notice to withdraw (VA does not require a particular form for this withdrawal).  For inextricably intertwined issues proceeding simultaneously through different lanes, take no action on the HLR issue and add it to the contention of the supplemental claim.

Likewise, VA cannot consider reviews of issues that are inextricably intertwined but in different lanes simultaneously e.g. HLR, supplemental claim, or appeal.  If the inextricably intertwined issue is with the Board of Veterans’ Appeals (Board), inform the requester that we will take no action on the HLR because it is intertwined with a Board decision.  See M21-1, Part I, 6.4.a.

A claimant may not request an HLR of an HLR, or an HLR of a Board decision involving the same issue.  VA must make at least one intervening decision, such as with a supplemental claim, in such circumstances.

The evidentiary record is closed in HLRs as of the date of the decision notice of the issue receiving review, which can include a new or supplemental claim decision, or, for legacy appeals, a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC).  VA cannot consider any evidence not before the previous decisionmaker.  However, after a decision to grant a benefit , such as service connection (SC), using a favorable finding rather than a formal rating decision, the reviewer may return a claim to supplemental claim personnel for additional development of all downstream issues, such as evaluation, effective date, or entitlement to ancillary benefits.  Supplemental claim personnel may also implement adverse actions resulting from HLRs.

Experienced adjudicators who did NOT participate in the prior decisions will conduct HLRs.  Decision Review Officers (DROs) at decision review operations centers (DROCs) have the authority to conduct HLRs for compensation rating issues.  Other lines of business have established their own processing rules and locations.

A complete request for a VA Higher Level Review includes the following:

Generally, an office different than the office of original jurisdiction will conduct the HLR.  Requests may ask that the same office that prepared the decision in question also conduct the HLR.  VA may have trouble accommodating such requests unless the office of original jurisdiction is co-located at the office conducting the HLR, such as the DROCs in Seattle and St. Petersburg.  However, exceptions to this rule may also apply for claims requiring specialized processing, such as when only one office adjudicates a particular type of claim.

• Name of the claimant and the relationship to the Veteran, if applicable
• Signature of the claimant, or a person legally authorized to sign for the claimant
• Date of the underlying decision for which review is requested, and
• Specific issues for which review is requested. 

An informal conference is contact, typically by telephone, but also using other means that VA determines appropriate, for the sole purpose of allowing a claimant and/or representative the opportunity to identify any errors of law or fact in the prior decision.

When requested by the claimant or representative, VA will conduct one informal conference during a higher-level review, unless both rating and non-rating issues are present.  The presence of the requester is not required if his/her authorized representative can attend instead.

The VA will call you from the following phone number: 1-800-827-1000. You can choose to have a legal representative speak on your behalf at the informal conference, but I am a strong advocate in speaking for yourself in this matter. The VA has been moving a lot of claims through this process.

At the local option, the higher-level reviewer or the Informal Conference Coordinator will arrange the conference, while the reviewer with decision authority over the issue will actually conduct it.  VA will not accept any new evidence to support the issue(s) under review during the informal conference.

While VA will typically conduct informal conferences telephonically, VA may make an exception on an individual basis.  VA may conduct the informal conference in person when good cause is shown as to why telephonic communication cannot or should not occur. 

The claimant or representative typically requests an informal conference on the HLR form, although VA will accept a separate request provided VA receives it with that form.  The reviewer or Informal Conference Coordinator will make a total two attempts to contact the claimant or his/her representative to schedule.  The reviewer will hold the informal conference within seven business days of the successful contact.  However, VA may individually grant extensions beyond the seven business days from contact if the pending review is still within established cycle-time goals.

During an informal conference, a requester or representative may wish to add to the evidentiary record or request review of evidence outside the scope of the HLR.  If so, inform the requester of the closed evidentiary record.

If the requester or representative insists on submitting the evidence, the higher-level reviewer may accept it but will inform the requester or representative the reviewer cannot consider it.  The  requester or representative may submit a supplemental claim after receiving the HLR decision.

Need more medical evidence to service-connect and get rated at the appropriate level in support of your VA disability claim or appeal? Join VA Claims Insider Elite and have our medical team get started on your VA disability claim for FREE:

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Have questions about your VA disability claim?

We can help you win, service-connect, and get a higher VA disability rating from the VA. We can also help you with the medical evidence needed to WIN your appeal.

Please reach out to us at VA Claims Insider, and we’ll get you the VA disability rating and compensation YOU deserve. 

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