One of the biggest challenges veterans face when applying for disability compensation is choosing the best appeal option under the new VA decision review process. There are three review options to choose from:
- Supplemental Claim
- Higher-Level Review
- Board Appeal
In this article, VA Attorney Matthew Brown will be covering the Higher-Level Review appeal option and highlighting all the important information you should know.
Higher-Level Review
When choosing the Higher-Level Review to appeal an unfavorable VA decision, there are important distinctions to remember, such as knowing you are prevented from submitting any new evidence in support of your appeal. This can include medical records, medical nexus opinions, and supporting lay statements.
A higher-level review is considered a de novo review of your claim – this means a VA adjudicator will give no deference to the prior decision, except with respect to favorable findings. Let’s use a very common example to illustrate the point. Here, we have John, a veteran who is applying for entitlement to service connection for hearing loss. John served in the Air Force and worked as an aircraft mechanic during active service. He believes his hearing loss is related to the hazardous noise exposure from working the flight line. He applies for disability compensation and provides a private medical opinion that his hearing loss is related to service.
However, VA procures their own medical opinion stating his hearing loss is not related to service and proceeds to deny his claim on the basis their own examiner’s opinion is more persuasive than John’s private treating source. Thereafter, John chooses to appeal this decision and files a request for a higher-level review. When contacted by the VA to discuss his appeal, John will be able to present either written or oral arguments as to why VA got the decision wrong and how the medical opinion he provided is more persuasive than the VA’s own examiner. Additionally, the adjudicator must consider all of the favorable evidence, regardless of the previous denial.
What John will not be able to do is submit any new medical records, medical nexus opinions, supporting lay statements, regarding his hearing loss during this conference. This is an incredibly important distinction to remember as a higher-level review is your opportunity to talk directly to a VA adjudicator, explain your position, and inform them why the evidence of record supports your request and why the VA got it wrong. Generally, the VA has estimated that upon the filing of a request for a higher-level review will take approximately 4-5 months (or on average 125 days) to respond to a request and schedule the informal conference.