What is a higher-level review? And should you request one in your VA disability claim? Well, first of all, let me say that higher-level reviews are only available if you have a claim under the Appeals Modernization Act. It is not on the table with a legacy claim. To describe what it is in my wildly oversimplified language, which is always a little dangerous… I’d say that a higher-level review is you going to the VA and saying “Hey look, all the evidence is there, the answer’s obvious, You guys just got it wrong, and I’d like somebody with a little more experience to take a look at this claim again, so try again.
To be more specific, a higher-level review is when a more experienced VA employee reviews all the evidence in your claim and then gives you another decision. Now, this new reviewer is supposed to look at your claim with totally clean eyes. They’re not supposed to give that original decision or any sort of deference with the exception of findings that have been made in your favor.
Specifically, what can a higher-level reviewer do? What decisions can they make? Well, a few things. First, they can come back and say, VA got it right the first time. They can completely agree with that original rater. I see that a lot, a little too much, honestly.
Another thing they can do is they can grant your claim or increase your rating. And that’s usually what you want them to do.
A third thing they can do is deny a claim that’s already been given to you, or they can reduce your rating. Now those are hard for them to do. And for them to deny a claim that’s already been granted they have to find clear and unmistakable error.
The other thing that a higher-level reviewer can do is can send your claim back to the original regional office that handled it and tell them they failed to uphold their duty to assist you and make them try again.
So in making those decisions, what information is available? Well, the higher-level reviewer is stuck with only the information that was available when that decision being reviewed was made. So if you’ve gone to the doctor since then, or if you’ve gotten new statements since then, and you try to try to add them, the higher-level reviewer isn’t going to look at them.
Now they can consider arguments, and you should make arguments. Arguments are different than new evidence. Arguments are just you pointing out how the VA messed up. Now, when I submit the form for a higher-level review, I include a letter and that letter describes in great detail, the errors in the original decision. And if you’re doing this yourself, you should do the same thing. Absolutely submit it in writing and submit it at the same time, you request a higher level of review. Make sure you’re not trying to add something new in there and make sure you clearly state, this is an argument, not new evidence. And then just walk through the errors.
One other thing about higher-level reviews. You can ask for an informal conference where you will speak directly with the higher-level reviewer. I think that generally, these are a good idea. Especially if the errors the VA made are complicated and you want the chance to explain them to a human.
Should you request a higher-level review? the first thing I do is ask if your evidence weak? Do you need more evidence? Do you need another doctor for a medical opinion? Do you need more statements from people you served with, from your spouse, from whoever can help support the facts that you’re trying to lay out for the VA? If you need more evidence, don’t do a higher-level review. It’s going to be just a waste of your time. Get the evidence and file a supplemental claim. On the flip side, if all the evidence is there, you’ve got all the medical opinions you could want, same with buddy statements and any other evidence, maybe a higher-level review makes sense. It really does completely depend on your claim, your claim alone. And no two claims are alike. If you’d like me to take a look at your claim, you can reach out to me through the links on my website.