- Higher Level Reviews, also known as HLR in the AMA,
are one of the appeals lanes options.
My name's Zack Evans,
and I work with Woods and Woods attorneys
in Evansville, Indiana.
I would encourage you to look at our other videos on AMA
and choosing between AMA versus legacy.
It's not right for every case to move from legacy into AMA,
but in some situations, it makes sense.
So just to recap here,
AMA is a big deal, it is preserved effective dates.
If you lose at the BVA and you don't appeal,
or you lose your appeal,
you can refile with new evidence
and hang on to that older effective date.
You have an opportunity.
You have a shot at it.
There's no SOC, there's no Form 9, like there was in legacy.
You got three lanes,
initial application,
you get an exam, sometimes you don't,
you get a rating decision, and you pick a lane.
Supplemental claim, HLR, AMA NOD to the BVA.
That's the notice of disagreement where you say,
skip the regional office stuff, send me to a judge.
So what we're talking about is higher level review.
The higher level review is, again,
at the regional office level, it's a closed record,
and you've got one year to file your HLR notice
to the regional office
after you get your initial rating decision.
But why would you choose HLR
instead of sending it straight to the judge?
The judge ostensibly, they know what they're doing,
and they are much like, much more likely to give me
a better shot or if a fair shake,
I tend to agree with that.
However, the biggest reason
that someone would choose HLR, higher level review,
over an AMA NOD filing where you say,
skip this stuff, take me straight to the judge is time.
These AMA dockets, the timeline is elongating,
it's getting ever and ever longer.
The backlog in each lane of the AMA's NOD dockets,
where judges are having to pull from the pool
and make a decision based on the evidence,
that backlog is getting bigger and bigger,
and I don't see that relenting any time soon.
I hope there's some sort of relief for the folks at the BVA,
they're certainly doing the best they can.
There's just a huge amount of claims
and the regional offices just really aren't able
to get it done, unfortunately.
So writing a docket to the BVA for this reason
can take a long time,
especially if you've chosen the evidence lane,
where you want a judge to weigh everything,
plus something new,
that takes even longer than your direct docket.
HLRs are generally a faster decision.
Sometimes they're much faster,
with BVA dockets growing by the day.
The best uses of HLRs are to clean up mistakes
at the VA regional office.
Some of these mistakes are easily identifiable.
These are the ones that you want to send back
to the VA regional office,
essentially send at one level above,
I need you to take another look at this,
these are the things that aren't really involving
a deep dive in terms of how to weigh the evidence.
I would tend to send those kinds of things to a judge.
That's where I would place my trust for those matters.
However, effective dates are a big one
on higher level reviews.
A good example of that is let's say you filed
an intent to file a claim.
And an intent to file a claim,
so long as you file an application within one year
is supposed to protect your effective date.
So you're supposed to be able to plant the flag
of your effective date as of the ITF filing.
So you say, hey, VA regional office, it's April 2nd,
and I intend to file a claim.
And then later that July,
you actually send your application.
You actually send your compensation disability application.
If you win it, it's your effective date,
if it goes back to the date of claim
is not supposed to be the July submission,
it's supposed to be the intent to file,
but I can't tell you how many times we get rating decisions
saying, congratulations, you won this condition
and here's the wrong effective date.
They'll give you the July effective date,
even though it's supposed to be April.
So that's a good scenario for an HLR filing.
You can say, hey, regional office,
somebody else take a look at this,
they messed this up, it's a pretty simple fix,
shoot us a rating decision,
you owe us and our veteran a few more months.
Sometimes, if you're looking at ITF
and then 10 months later, you've got another filing,
you owe us and our vet almost a year.
So that can really add up, that wasn't the correct decision.
Another one is where we have continued
or increased rating claims that are on appeal,
and as part of that appeal process,
the VA regional office sends out a working on claim letter,
they say, hey, we need some stuff from you,
and one of those things we need is an IU app.
So can you send us this VA form 21-8940?
That is your application, your formal application
for total disability individual unemployability benefits.
So under the Rice decision, Rice V. Shenseki,
they are not supposed to award you
as of that application date.
It is to be inferred under a certain set of conditions
as long as the evidence supports it,
that your IU status actually flows
from those conditions that have already been on appeal.
They gotta give you that effective date
for the claim that's already on appeal.
So if you get an IU app grant,
and they call that the date of claim,
we've gotten a lot of those overturned
at the regional office level, with a simple HLR filing.
We say, that's not what you're supposed to be doing,
here's why the evidence lines up this way,
here's the case law,
here's a citation of the regulations,
we'll cite their internal documents,
their internal directives that the VA's supposed to follow,
and we've gotten some good results that way.
Another situation for filing HLRs
is failure to consider evidence.
So let's say there's report A, B, and C for the back,
and we send all of that to the regional office,
and they're supposed to give you a decision
on an increased rating.
And you look through the evidence considered
and you look through your narrative and hmm,
they didn't discuss the decision here
or the report here from Dr. B.
Well, that's a problem because Dr. B found
that sometimes I'm incapacitated
for six weeks or more in a 12-month period
due to my back pain and that's absent,
so I didn't get the higher back pain rating.
I didn't get rated based on those incapacitative episodes.
So that's another type of situation
where you can file an HLR and say,
hey, this decision was erroneous,
you didn't consider everything,
you guys missed something here.
Another situation where you can file higher level review is
inadequate reasons and basis.
So you get a decision from the VA
and this rating decision doesn't really tell you much.
You've got a lot of boiler plate language,
it just says, well, it didn't really start in service,
and we're going to just deny it.
And that's it. There's no, you sent evidence,
you sent maybe a psych report
that says he was exposed to mortar fire
while he was in Afghanistan,
and he was basically living in a tent while he was there,
and I find that this has been a continuous issue,
he has nightmares about it, he has insomnia,
he has problems when he's out in crowds,
and the rating decision says nothing about that.
So that's a good opportunity to pin the VA regional office
down and make them say something about your psych report.
About your evidence that you sent,
whatever the condition was.
If they didn't discuss it,
then you have some grounds for an HLR.
Again, you could take this kind of stuff to the board,
to the BVA,
but you really want to know why the regional office
is saying no to you.
Make them tell you why.
Another scenario is
where the rating does not match the evidence.
So we would file it,
and we might file an HLR before we take it up to the board,
see if we can shorten the timeline for our vets,
because our vets have waited long enough already.
Let's say we get a rating decision back
on a mental health claim,
and this veteran client presents with suicidal ideation,
intermittent hallucinations and delusions,
inability to adapt to stressful circumstances,
including work or a work-like setting.
So these are consistent
with pretty high level of mental health impairment.
Some would argue a 70 or 100.
Certainly when you consider suicidal ideation.
And what comes on the rating decision is about a 30,
your 30% shows up, and they cite the psych record,
and they talk about how all of these symptoms are present,
and I've even seen it on rating decisions
where these severe symptoms are actually listed,
and they still give veterans the 30%.
Sometimes you can get that corrected
much faster with an HLR.
And so you might not get all of the rating
or all of the payments that you're expecting,
or that you're hoping,
but if we can get one of these ratings corrected,
especially if it's a jump from like a 30 to a 70,
then while we're waiting in another lane on a docket ride
to argue the rest of our evidence in front of a judge,
maybe the vet gets that 30 to 70 bump
that can make life a little bit easier
while we're continuing the fight on another lane
or other conditions.
So one of the considerations for filing an HLR is
like I just mentioned, where are your other claims?
So here's a good example.
Let's say you have a back issue that's on appeal in one lane
and you have mental health in supplemental claim,
or go into the board,
and your theory of connection here
and all your psych evidence for 15 years shows
that you've suffered a lot of depression
due to this back issue.
Well, if the back issue is unresolved,
then you're unlikely to get a favorable result
on mental health.
And if you take that to the judge,
that could be remanded until the back issue is resolved.
So instead of putting the back issue
into another board NOD lane,
into another AMA NOD lane to the board,
where they're essentially,
they're all on these slower tracks to get to a judge,
you're at least giving yourself a shot
of getting a quicker decision on an HLR
and getting some sort of a favorable result back
on the back issue.
So this is just an example
that certainly doesn't apply to every case,
and it depends on the evidence,
it depends on what your doctors say,
it depends on what your psych report says,
the strength of your mental health case.
And we can definitely look at what's in your C-file,
what's in your procedural history,
and help make a good sound decision
to move all of the pieces around
and get your claims in the correct lanes,
and get you a decision as fast as we can.
Sometimes these decisions can take a good while,
but it's really important to avoid unnecessary delay
that you're putting them in lanes in the right order.
This is why a lot of vets seek out lawyers.
AMA was supposed to simplify the process,
in some ways, it's been the opposite, unfortunately.
Backlogs are growing and lots of vets
are unfortunately running out of time.
Get a lawyer into the fight that knows what they're doing.
My name's Zack Evans,
and I work with Woods and Woods in Evansville, Indiana,
give us a call or go online.
We'll help you out.
(intense music)