I’m dealing with a higher-level review in a case I’m working on right now, and it’s one of those decisions where, it’s so bad, you think the higher-level review was a waste of time. Now I talk to veterans and other veterans advocates who think higher-level reviews are always a waste of time. I don’t put myself in that camp, but I got a pretty hard pull in that direction with that decision I read yesterday.
This isn’t the first time I’ve gone down this road. It’s a pretty normal human reaction when you get a higher-level review back, and it’s nothing but a copy and paste of the original decision. But as I wanted to talk a little bit more about my thought process and how I approach higher-level reviews. At least for now. My thoughts on this evolve all the time.
The first thing to think about is what are your options. If a higher-level review is on the table, so is a supplemental claim, and so is an appeal to the BVA. The second thing to think about is whether you need any new evidence to prove your claim. The answer to that is going to remove one of your options because if you are going to add new (and relevant) evidence, you can’t file a higher-level review, and if you aren’t adding new evidence, you can’t file a supplemental claim. Actually, you can file either one. When I say you can’t, what I really mean is the VA will reject them.
So if you don’t need new evidence, your options are higher-level review or appeal to the Board of Veterans Appeals. Here, the huge consideration is that an appeal to the Board will take at least one year. At least. For me, this is where the higher-level review becomes attractive. I am optimistic by nature, and I always think that I can very persuasively point to the controlling law, point to the evidence and the obvious errors, and the VA will do the right thing. I know some of you cynical veterans won’t believe it but, sometimes that works. Other times it doesn’t work at all. You just never know who that higher-level review is going to be and whether they even read what you send them.
But I just have a hard time sending a case to the BVA when I think there’s a chance to get a faster win for a Veteran. The other thing about deciding which of these options to take is, the Board isn’t perfect either. You never know what’s going to come out of a board decision, and once the Board has weighed in negatively on the facts of your case, that can be a harder challenge to get around.
It may help to think of this as a continuum. On one side, you have simple and obvious mistakes. On the other side, you have very technical legal mistakes. If there is anything on that simple and obvious side, I’m going to lean towards an HLR. A classic example is a duty to assist error. It’s very frustrating when you wait a year, and the Board kicks your claim all the way back to the beginning because the original decision had a duty to assist error. Another one is things the VA is supposed to put in the decision that they didn’t put in the decision. Lack of favorable findings is a common one there. I don’t like to take those issues to the Board because I’m always worried the Board is going to find that error and just kick it back without ever dealing with the other, more serious errors.
So I’m still in the HLRs are not a waste of time, at least for some situations. I hope that helps you think through your own decisions on a higher-level review. If you want me to help you with your claim, feel free to set up a call with me through my website.