VA Higher Level Review Process AMA Modernized Appeal Veterans Law Blog

What is the VA Higher Level Review Process?

The VA Higher Level Review process is part of the new Modernized Appeal process (AMA). Under the AMA, veterans and survivors must choose between 3 paths if (after February 19, 2019) they receive a VA Ratings Decision they do not like.

Those new VA appeal paths are:

  1. Supplemental Claim
  2. Direct Appeal to Board of Veterans Appeals (BVA)
  3. Higher Level Review

Each of these appeal “lanes” works a little differently. The VA Higher Level Review process works like this:

  1. Request an informal conference with a Higher Level Review officer by submitting VA Form 21-0966 (click here to download a copy of VA Form 20-0996). If you do not use this form, the VA will not process your request for a Higher Level Review.
  2. You may present your argument to a Higher Level Review officer in an informal conference.You cannot add new evidence – the Higher Level Review is limited to the evidence in the record at the time of the decision.
  3. The VA hopes to complete Higher Level Reviews in 125 days. This goal is aspirational, and not mandated by any law or regulation.
  4. If you lose the Higher Level Review, you have the option of submitting a Supplemental Claim if you have new and relevant evidence.
  5. Alternatively, you can appeal directly to the BVA. You cannot seek a Higher Level Review of a Higher Level Review.

In a nutshell, think of the VA Higher Level Review process as a “challenge” in football or baseball. You “challenge” the rating decision, the wizard behind the curtain reviews (maybe) and makes a decision, and then they either affirm or reverse the VA Rating Decision.

In theory, the Higher Level Review is supposed to be conducted by a more senior rater. This was supposed to be the case in the DRO hearing as well in the legacy appeals process – a step I genuinely liked and found incredibly effective. Didn’t always happen, but with only a handful of exceptions, the DROs that I worked with were conversant in VA Disability Claims jargon and were direct in what they could or could not do. Or at least what they thought they could or could not do.

The Higher Level Review officer has what I call a “superpower.” He or she has the ability to reverse the VA Ratings Decision on any grounds presented by the evidence, record, or argument. Here’s the superpower: allegedly the VA Higher Level Review officer has the ability to make a finding of CUE in a prior VA decision, without CUE actually being plead.

An anecdote about the Higher Level Review process. Everyone I’ve talked to who has actually participated in a Higher Level Review has said that it lasted under 10 minutes – sometimes waaay under 10 minutes.

I have heard from a couple of my attorney colleagues that the VA Higher Level Review officers appear to be reading from a script that lays out this process at the informal conference:

  1. An HLR informal conference is different from the standard two-way conversations that appeals typically uses.
  2. An HLR informal conference is your opportunity to identify an error of fact or law in the prior decision.
  3. The advocate or claimant’s help identifying the error(s) during our HLR informal conference can help me grant in your favor.
  4. Once the call begins, the HLR officer directs the claimant or the advocate to identify the error of fact or law in the previous decision.
  5. After that happens, the informal conference ends.

If you have a different experience with the VA Higher Level Review, please post in the comments below. Or send me a message using the form at the bottom right of this page.

I’m very curious if the VA approaches Higher Level Review the same way for pro-se claimants, claimants represented by VSOs, and claimants represented by accredited agents and attorneys.

Why might a Veteran or Survivor choose a VA Higher Level Review?

What follows comes with a major caveat.

This post is being written in the fall of 2019 – and the AMA Modernized Appeal process is very, very new. There is not enough evidence to know whether strategies to use the Higher Level Review paid off or backfired, or to know the impact on the timeline of the appeal overall.

So, in theory, a veteran might want to consider the Higher Level Review process when there is a clear error of fact in the record that, if the rater understood the correct fact, the outcome of the service connection, impairment rating, or effective date claim – or any claim for that matter – would change. Using the VA Higher Level Review in this scenario presupposes that the claimant has a copy of the record used in the ratings decision.

And veterans still don’t have the immediate access to their own files that the VSOs and some attorneys have. It is my understanding that all VSOs have access to veterans claims files through a system called VBMS (what I call the Veteran’s Bulls**t Management System). The VBMS system is supposed to be a repository of everything that used to be in a C-File.

If you subscribe to the Veterans Law Blog®, you automatically get access to my Video Training Course teaching you how to get and use your VA C-File, with downloadable templates and forms you can use.

Attorneys have to request access to the VBMS system, go through background checks, fingerprinting, hours of training on VA claims and appeals, and – I have heard this from multiple sources – have to be able to swallow 5 sharpened pencils without shedding a tear. (Obviously, I’m frustrated with yet another VA delay).

Another reason you might want to request a Higher Level Review is if you need a little extra time to gather the missing evidence that led to the denial in the first place. While you are waiting for the Higher Level Review, you can begin preparing the argument and new and relevant evidence to support a supplemental claim. Then, when you are denied relief in the VA Higher Level Review, you can turn right around and file a supplemental claim or appeal to the BVA, depending on which is better for your claim and appeal.

And another reason you might want a Higher Level Review is if you have a situation where the ratings decision clearly misapplies the law, or didn’t consider an important regulation, statute, or judicial review.

I’m sure, over time, the reasons for seeking a Higher Level Review will become much more clear. For now, though, we can only guess – there simply have not been enough Higher Level Review requests to see if the VA can deliver on their 125 day promise, or if those VA Higher Level Reviews have a high or low grant rate.V

Which brings us to the last question about the Higher Level Review Process.

What are the likelihood of success?

The answer to that question is anybody’s guess.

One attorney told me he had participated in three HLR informal conferences, and all three were decided against the Veteran.

Another attorney told me she, too, had participated in three HLR informal conferences, and she won two of them.

You can tell me about your experience with the VA Higher Level Review process by leaving a comment or by filling out the survey, below:

4 Comments

  1. Travis Veillon

    Your video courses keep buffering on all my devices (my internet is pretty fast too.) Please give an option to lower the resolution. At the moment your services are not worth the money because of this.

    Reply
    • Chris Attig

      Buffering issues are almost always issues on the user side.

      Common problems include older hardware on your computer, restrictive browser settings, browsers that aren’t updated, software and memory issues on your computer, the speed of your internet connection (and whether it is wired or wireless), the number of devices using that connection, as well as any limits/throttling/etc imposed by your ISP.

      Chris

      Reply
  2. Ken

    I would like to give my experience with the HLR. First it took 190 days and any evidence I had gathered after my initial denial, 2 years previously was not considered. They only took the original evidence into consideration. I was told by my VSO and representative (my VSO can’t represent me at the HLR or BVA so have to have a rep from the state ) that they would look at this evidence and any other evidence I submitted before my HLR HEARING was scheduled. This was not the case at all. I was also not involved in the hearing as I felt I was supposed to be. My rep told me the new evidence I had gathered would be considered. This was not the case. They also lost 2 of the 4 issues I have on appeal in which I was ordered new exams. I read the form written by the HLR officer in my C-FILE in which she ordered these. Those 2 issues were re-opened and denied in less than 3 weeks without those exams.

    Reply
    • Chris Attig

      Hi Ken,

      Thanks for sharing that information. The VSO absolutely should have known that the Higher Level Review officer will NEVER consider any new evidence. That is what the Supplemental claim and BVA appeal lanes are for.

      I’m sorry you had such a bad experience. Hearing this makes me REALLY miss the DROs.

      Chris

      Reply

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