Higher Level Review Denial

Higher Level Review Denial

What are Your Appeal Options Following a VA Form 21-0996 – Higher Level Review Denial?

Due to the fact that there are so many Veterans who get a higher level of review denial, this is a common question. The higher level review is perhaps the fastest and most efficient appeals lane in the new VA appeals process. If a Claims Examiner denies your petition for benefits, which usually happens, a senior-level Claims Examiner reviews the denied claim with fresh eyes. If the higher level reviewer does not make a favorable decision, you typically have one year to mull your options and appeal the unfavorable decision.

Many Veterans are unsuccessful because they do not have an effective VA disability attorney at their side during this process. An attorney not only knows what evidence Claims Examiners want to see, but attorneys also know how to present disability claims in compelling ways. As a result, you have a much better chance of obtaining the financial and medical benefits you need and deserve.

Benefits of the New Appeal System

The old VA disability appeal process was very slow. In part because a Veteran could add evidence at any time.  And the VA’s duties in developing and adjudicating the claim would require additional steps before a decision could be made on the claim.  Also, there was one path for all claims regardless of the type of case or legal issue.  

As such, every appeal had to proceed through the same procedural grind. Which also added years to each level of appeal due to the sheer number of cases. The streamlined Appeals Modernization Act significantly changed this environment.

Under the new procedure, the VA must clearly state the reason(s) for denial.  As well as note the favorable evidence or facts of the claim. This makes it much easier for a veteran to understand what needs to happen for a favorable decision at the next step of the process. An experienced VA disability attorney can capitalize on this new clarity of the VA decisions. And then streamline the submission of additional evidence (if necessary) and argument. 

Supplemental Claim and New Evidence

If a higher-level Claims Examiner denies the claim, Veterans could file a supplemental claim. The Appeals Modernization Act designed this type of claim review for Veterans who have new and relevant evidence to present in support of their claim. 

The previous system required “new and material” evidence.  The new system requires “new and relevant” evidence.  The new standard is not meant to be a higher standard than the old one. Under the new system, what constitutes “new and relevant” is more clearly defined. Thus making it easier to know when the new evidence has met this standard.

If the VA denies a supplemental claim, Veterans have the option to appeal. Veterans can submit another supplemental claim, request a Higher-Level Review, or appeal directly to the Board of Veterans’ Appeals.

Board of Veterans’ Appeals and Legal Errors

Sometimes, the proper evidence is in the file. However, the senior Claims Examiner did not consider it properly. Such errors are rather common in higher level review cases.  This is because they have a high number of cases they are reviewing.  And also, while they may be experienced with VA claims, they are not lawyers. Rather, Claims Examiners are VA employees. They receive their training through a VA adjudication manual and rely heavily on that.

While they do a complete review of the file and (unless otherwise requested by the Veteran on the 21-0996 form) are from a different adjudication office than the junior Claims Examiner who issued the unfavorable decision, they are still constrained by the adjudication manual’s instructions.  Sometimes, the facts of the case do not fit squarely within those instructions and legal errors are made that result in a denial of the appeal. Additionally, some types of cases are so unique in comparison to other claims, that the lower-level adjudication offices rarely grant them.

Under these circumstances, a Veteran’s best option is to appeal to the Board of Veterans’ Appeals (BVA).

What Are The Options

At the BVA, you may choose a direct review, an evidence review, or a full hearing.  The direct review is basically another higher-level review. There is no hearing and no new evidence. As the name implies, evidence reviews allow Veterans to submit new evidence with their claims. But Veterans must submit the new evidence within 60 days of filing the appeal. 

BVA hearings are more like the traditional BVA appeal. Which allows submission of evidence and legal argument, although the timing of when this can be submitted is limited. 

Regardless of which option, the VA employee reviewing your claim is a legally trained attorney, supervised by a judge.  While the entrance of legally trained evaluators at the Board level increases the quality of legal review of the appeal, this alone does not necessarily increase the likelihood that an appeal will be successful. Persuasive legal argument, putting the best evidence in the right context, which is made by an experienced Veterans disability lawyer significantly improves favorable outcomes before the Board.

Rely on Dedicated Attorneys

If you are disappointed with the results of a higher-level review, you have legal options. For a free consultation with an experienced Veterans disability lawyer, contact the Cameron Firm, P.C. at 800-861-7262 or fill out the contact box to your right. We are here to represent Veterans nationwide.

This article is for educational and marketing purposes only. It does not create an attorney-client relationship.