“Higher-level reviews, also known as HLRs in the AMA system, are one of the appeals lanes options.
“My name is Zack Evans, and I work with Woods and Woods attorneys in Evansville, Indiana.”
What is the Appeals Modernization Act (AMA)?
“I would encourage you to look at our other videos on AMA and choosing between AMA vs 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’s big deal 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.
“In AMA, you’ve got three lanes. You do an initial application, you get an exam — sometimes you don’t, you get a rating decision, and you pick a lane. The lane options are supplemental claim, higher-level review (HLR), and AMA notice of disagreement (NOD) to the BVA, which is the notice of disagreement where you say, ‘Skip the regional office stuff, send me to a judge.’”
Why should I choose a higher-level review (HLR) for my VA appeal?
“So, what we’re talking about here is higher-level review. The higher-level review is 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? Maybe you think the judge knows what they’re doing and they are much more likely to give you a better shot or a fair shake. I tend to agree with that.”
HLRs are usually faster than NODs
“However, the biggest reason that someone would choose HLR, higher-level review, over an AMA NOD filing, is time. The timeline for these AMA dockets is elongating, and 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 [the previous decision], to say, ‘I need you to take another look at this.’ These are the things that don’t really involve 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.”
HLR for effective date errors
“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. 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 in your disability compensation application.
“If you win it, your effective date, if it goes back to the date of claim, it is not supposed to be the July submission, it’s supposed to be the intent to file date. 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.”
“Woods and Woods are the only attorneys I would recommend for veterans, they did a great job for me. 100 percent P&T disability, very caring and understanding. They will not quit until they win. I am so thankful for what they did for me.”
B.C., a Navy veteran in California
From a Google review for Woods & Woods
HLR for TDIU claims
“Another one is where we have continued or increased rating claims that are on appeal, and as part of that appeal process is when the VA regional office sends out a working on claim letter, and 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 formal application for total disability individual unemployability benefits.
“Under Rice vs 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 have to give you that effective date for the claim that’s already on appeal.
“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.”
HLR for failure to consider evidence
“Another situation for filing HLRs is failure to consider evidence.
“Let’s say there’s reports A, B, and C for the veteran’s back problems, and we send all of that to the regional office, and they’re supposed to give you a decision on an increased rating.
“You look through the evidence that was considered, and you look through your narrative and think, ‘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 incapacitating 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.’”
HLR for inadequate reasons and basis
“Another situation where you can file a 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.
“You sent evidence, 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. 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.”
HLR for VA ratings not matching evidence
“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 to 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 a pretty high level of mental health impairment. Some would argue a 70% or 100%, certainly when you consider suicidal ideation.
“But 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 for, but if we can get one of these ratings corrected, especially if it’s a jump from something 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.”
“From the day we contacted [Woods and Woods], they made us feel so comfortable. They treated us like we mattered and we were not just clients but family.”
L.B., a Navy veteran and wife in Florida
What to consider before filing a HLR
“One of the considerations for filing an HLR is like I just mentioned — where are your other claims?
“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 going to 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 AMA NOD lane to the board, where they’re essentially 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 favorable result 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, and the strength of your mental health case.”
How Woods and Woods can help
“We can definitely look at what’s in your C-file and 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 in order to avoid unnecessary delay, it’s really important 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, and 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.”
Zack Evans
VA disability attorney
Woods & Woods
Zack is a former prosecuting attorney. He received his law degree from Southern Illinois University. He joined Woods & Woods in 2017.
