Discussing the Higher Level Review Process

Today, we’ve got Dr. Bill Ker, and we’re going to discuss the higher-level review process. I can’t forget my co-host, Mr. Gerald Cook. How are you doing, Gerald?

Gerald: Well, I’m doing a lot, still here, so that’s good.

We’ve been touching on the review processes in the last few shows. We’re fortunate to have Dr. Bash and Bill, who are experts on this appeal process. So, I want to turn this over to Dr. F.

The Impact of the New Appeal Process

Dr. F: How does the new appeal process affect the review process?

Dr. Bash: I write these 100-page reports and get a one-sentence reply from the VA that it’s denied. So, what I do now is a ratcheting effect: submit a supplemental claim with new evidence, then a higher-level review on the law. Bill can tell us about it. Last week, I did a supplemental claim, and the patient asked for a hearing. Bill calls those predetermination hearings.

I went to the hearing virtually, and the DRO guy said he had never talked to a doctor who wrote a letter. He listened and asked some questions. About a week later, we had a positive decision. These hearings are useful. Maybe Bill can give us insight into how those work since he’s run several over the years.

Bill: Yes, I’ve engaged with that quite a bit. Often, I found myself able to effectuate a grant on the basis of a prehearing discussion. Sometimes, by meeting with the decision review officer, explaining the case and evidence, they would grant it on the spot.

Higher Level Review Hearings

Dr. Bash: So, these higher-level review hearings are kind of like a prehearing decision, right?

Bill: No, a predetermination hearing is useful in some cases, especially for line of duty versus misconduct determinations. If you incur an injury in the service, it’s presumed to be service-connected. But if it’s a result of misconduct, service connection will be denied, often in cases like DUI. A predetermination hearing allows you to get your evidence in front of the VA before they make a decision.

Dr. Bash: How does that differ from the higher-level review process?

Bill: The predetermination hearing happens before the VA has made any decision, allowing you to present your case clearly. Higher-level review happens after the VA has denied your claim. By seeking higher-level review, the rules make it clear that the review will be conducted on the evidence of record, not new evidence.

Dr. Bash: So, what happens if new evidence is presented during higher-level review?

Bill: If new evidence is presented, it kicks you out of higher-level review and into the supplemental claim. The decision review officer will record it as a supplemental if they grant the case based on the new evidence.

Challenges in the Review Process

Dr. Bash: In one case, the DRO was very knowledgeable and emphasized that if he couldn’t make a positive decision, we should appeal to the next level. We avoided adding new evidence to prevent being kicked into the supplemental claim process. The rules only allow two supplemental claims, so it’s important to use them wisely.

Bill: Right, the idea is to put in a supplemental claim, ratchet it into higher-level review for the law review, then do another supplemental claim for new evidence, and ratchet that into another law review. This way, you can help the veteran navigate the maze and polish the case for the BVA.

Dr. Bash: Can you explain the concept of new evidence? Sometimes people struggle with this.

Bill: New evidence can be lay letters or focused questions. The decision review officer works in partnership with the appellant and representative to resolve all issues covered by the notice of disagreement. This partnership helps in providing the necessary evidence to support the claim.

Using Private Medical Evidence

Bill: There are still some in the VA who resist accepting private medical evidence, even though Congress gave them the authority to use it in 1994. VA testified that using private medical evidence could help attack the backlog by reducing the need for VA exams.

Gerald: I was reading through my claims folder and found a section that said, “Stop, do not go past this page.” Over half my claims were under that page.

Bill: That was a temporary practice that doesn’t exist anymore. It started when the BVA decided to develop evidence on their own to avoid remanding cases back to the regional office. This didn’t work well, and the appeals management center couldn’t handle the volume.