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What Kinds of Issues Should be Appealed for Higher Level Review? (Part 1)

The new VA claims procedure, effective in February 2019, continues to evolve in front of our eyes. One of the most interesting aspects is whether to request a Higher Level Review of a decision, or to appeal directly to the Board of Veterans Appeals.

The most attractive aspect of an HLR is that your claim will be reviewed de novo by a VA employee who is more experienced that the one who made the initial decision. Usually the HLR will be conducted by a Decision Review Officer. A “de novo” review means that the DRO is not bound by any findings in the initial decision and may reverse the initial decision and grant your claim.

Another attractive aspect is that I can have what is called an “Informal Conference” with the DRO to explain where I think the initial claims decision went wrong. The word “conference” is defined in the dictionary as a discussion, presumably between me and the DRO. But that is not how things are evolving.

Instead, recently, the DRO conducts the informal conference before they review the records! Because they don’t know anything about your file, there is no discussion. I actually had one DRO tell me they were going to put their phone on mute while I was explaining why the existing decision was wrong. The DRO came back on the line when I had finished the explanation.

In my opinion, this kind of “conference” is really not helpful for a veteran. My office routinely files a brief with the HLR request, explaining why the appeal should be granted. If we can’t discuss the case with the DRO, we are stuck pretty much just reading our brief to the DRO and hoping they will give some sort of feedback.

When an HLR first became part of the VA claims process, the DROs were reviewing the files and discussing their thoughts with us. Then we could respond and, at the least, point out evidence that the DRO had overlooked. That kind of HLR was helpful to your case.

We hope that as things develop, the pendulum will swing back and VA can find a middle ground that allows some discussion with the DRO. We don’t want to argue with the DRO about the evidence – – that would not accomplish anything for you. But, a genuine discussion of the pros and cons of the evidence would be a welcome alternative.

Now that you know how an HLR works, in our next post we will discuss what kind of decisions to appeal as an HLR.

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

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