Updated Feb 18, 2025
In This Chapter |
This chapter contains the following topics:
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1. General Information on HLRs
Introduction |
This topic contains general information on higher-level reviews (HLRs), including
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Change Date |
July 15, 2024
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5.1.a. Definition: Higher-Level Reviews |
Higher-level reviews (HLRs) consist of de novo reviews of the issue(s) identified by requesters on a completed VA Form 20-0996, Decision Review Request: Higher-Level Review. De novo review means the reviewer reexamines and readjudicates the claim in question without deference to the prior decision, except for proper favorable findings.
References: For more information on
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5.1.b. Authority of Higher-Level Reviewers |
In addition to de novo review, a higher-level reviewer may also change a decision based upon difference of opinion. The higher-level reviewer may not use difference of opinion to revise the decision in a manner that is less advantageous to the claimant. However, the higher-level reviewer may use clear and unmistakable error (CUE) under 38 CFR 3.105 to reverse or revise, even if disadvantageous to the claimant, any prior VA decision. However, absent a completed VA Form 20-0996 for the issue, the higher-level reviewer does not have jurisdiction over any assertion by a claimant of a CUE.
Any finding favorable to the claimant is binding on subsequent adjudicators, including both higher-level reviewers and other decisionmakers, except when rebutted by clear and unmistakable evidence to the contrary.
Note: Ensure the “difference of opinion” disposition is used in the Veterans Benefits Management System (VBMS) if a higher-level reviewer changes the decision based on difference of opinion.
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5.1.c. Restrictions of HLRs |
VA must receive the completed VA Form 20-0996 within one year of the notification letter for a decision made on or after February 19, 2019. If not timely received, inform the claimant using letter HLR Not Timely.
A claimant may not request an HLR of an HLR, or an HLR of a Board decision involving the same issue. VA must make at least one intervening claim decision in such circumstances.
When a Board decision results in granting downstream issues such as to confer new appeal rights consistent with M21-5 Chapter 7, Section D.2.h., these downstream issues are eligible for review under any of AMA’s three review options. Therefore, a claimant may file an HLR (or Claim Accuracy Request (CAR)), supplemental claim, or Board appeal on a downstream issue decided by VBA resulting from the Board decision.
HLRs cannot be requested for proposed decisions.
The HLR evidentiary record is closed as of the date of the decision notice of the issue receiving review, which can include a new or supplemental claim decision. An HLR reviewer cannot consider any evidence that was not of record at the time of the contested decision. However, after a decision to grant a benefit, such as service connection (SC), using a favorable finding, rather than a formal rating decision, the reviewer may return the HLR for additional development of all downstream issues, (e.g. evaluation, effective date, or entitlement to ancillary benefits). Personnel may also implement adverse actions resulting from HLRs.
Note: Late flowing evidence can be considered on an HLR if the evidence is date stamped prior to the notification letter of the decision being reviewed.
References: For more information on
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5.1.d. Who May Conduct HLRs |
Experienced adjudicators who did not participate in the prior decisions will conduct HLRs. Decision Review Officers (DROs) at decision review operations centers (DROCs) have the authority to conduct HLRs for compensation and pension rating issues. Other business lines established their own processing rules and locations.
For non-rating issues at the DROCs, Authorization Veterans Service Representatives (GS-11 or higher) or Authorization Quality Review Specialists (AQRSs) have HLR authority.
HLR requests for specialized contentions such as Spina Bifida, mustard gas, etc. will be routed by the National Work Queue (NWQ) to the stations responsible for processing such claims. The Office of Administrative Review (OAR) or the Office of Field Operations (OFO) may occasionally authorize deviations to these routing procedures. Absent operational guidance regarding jurisdiction of specialized issue cases, DROCs should follow the below table:
If DROs, Authorization VSRs, or AQRSs are unavailable at specialized processing centers, local management may appoint higher-level reviewers with authority over the issue and who are otherwise qualified to conduct informal conferences. See M21-5, Chapter 5, Topic 3.b.
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5.1.e. Overview of the HLR Process |
The following table is an overview of the process used by the higher-level reviewer:
When appropriate, multiple HLRs will be grouped and routed to users to process concurrently. If pending HLRs were not appropriately grouped, follow local procedures to request and assign the HLR to the VBMS queue of the requesting DROC. Questions regarding the jurisdiction for multiple HLRs may be sent to Office of Administrative Review (OAR) Operations at OAROPS.VBAWAS@va.gov.
Reference: For more information on grouped EPs and requesting assignment, please see the VBMS User Guide.
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5.1.f. Opting Into HLRs From Legacy Appeals |
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5.1.g. Defining Evidentiary Records for HLRs |
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5.1.i. Regulatory Authorities for Changing Decisions |
Higher level reviewers have at their disposal multiple authorities for making new decisions, which include
Difference of opinion involves the de novo re-examination of a prior decision and its associated evidence. It allows re-weighing of that prior evidence, so the decision maker may make a new decision without regard to the earlier one. The reviewer cannot use DoO to revise the prior decision in a manner that would be less advantageous to the claimant. However, the reviewer may use CUE to adversely revise a decision when necessary. To minimize overpayments, underpayments, and inaccurately continuing beneficiaries for benefits, DROCMs or their designees must log each CUE decision in the Compensation Service CUE Microsoft SharePoint site. See M21-1, Part X, Subpart ii, 5.A.3.f. Reference: For more information on
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5.1.j. Difference of Opinion vs. Duty to Assist Error |
A true error in VA’s duty to assist (DTA) contains two components: VA’s obligation under 38 CFR 3.159 to assist in obtaining certain evidence and VA’s failure to do so at the time of the prior decision. The exercise of a difference of opinion may lead to additional development, but that development does not necessarily mean that the prior decision failed to properly assist the claimant. The HLR reviewer has the authority to weigh the same evidence differently than the earlier adjudicator and may change the previous decision based on difference of opinion. If the difference of opinion results in the need for an examination or further development, then the reviewer must document this on the VA Form 20-0999, Higher Level Review Return. The reviewer must return the case for additional development resulting from a DoO using that same VA Form 20-0999. However, this return does not constitute a DTA error as the previous decision was not necessarily incorrect. Rather, the amended decision mandates additional development to resolve, as is often the case, certain downstream issues. Example: The HLR is requesting service connection (SC) for a condition. The reviewer, weighing the evidence differently than the earlier decision maker, now decides to order an examination based on the evidence of record. The reviewer will document the need for further development (a request for examination based on the review) under DoO, document the favorable findings as necessary, and then return the request for development so VA may order the examination. When VA obtains that examination, the RVSR will formally decide if a grant is warranted based on the examination. If so, the RVSR will assign the evaluation and effective date. Rationale: The prior decisionmaker was not obligated to order an examination, as it was not necessary to decide the claim. Hence, the prior decision contained no DTA error. However, once the reviewer decided to grant SC based on DoO, VA was required to seek additional development to fairly decide the downstream issues. Reference: For more information on DTA errors, see M21-5, Chapter 5, Topic 5.a. |
2. Initial Actions Upon Requests for HLRs
Introduction |
This topic contains information on initial actions to take upon receiving a request for an HLR, including
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Change Date |
October 23, 2023
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5.2.a. Definition of a Complete Request for an HLR |
A complete request for an HLR includes the following:
Important: When the actual date of the decision of which the claimant requested review, and the date listed on the VA Form 20-0996, Decision Review Request: Higher Level Review, do not match, VA should accept the HLR if VA can reasonably ascertain the issue involved and if VA timely received the HLR request. Further, the absence of the notification date on the HLR does not necessarily preclude the acceptance of the HLR request. If blank, claims processors should contact the Veteran and/or applicable representative for clarification of the date and document contact on VA Form 27-0820, Report of General Information.
For incomplete requests, follow the procedures in M21-5, Chapter 4, Topic 2.e.
Handle requests for HLR using a form not prescribed by VA as a request for the application. See M21-1, Part II, Subpart iii, 1.A.1.a.
Reference: For more information on
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5.2.c. Handling Requests to Conduct HLRs at Specific Offices |
Generally, a different office than that of original jurisdiction will conduct the HLR. Requesters may ask that the same office that prepared the decision in question also conduct the HLR. VA may experience difficulty accommodating such requests unless the office of original jurisdiction is co-located at the office conducting the HLR, such as the DROCs in Seattle and St. Petersburg. However, exceptions to this rule may also apply for claims requiring specialized processing.
When unable to accommodate the claimant’s request regarding venue for the HLR, insert the following paragraph in the introduction of the decision document: You requested to have your higher-level review conducted at the same office that decided your claim. Unfortunately, we were unable to fulfill your request because that office does not have personnel available to conduct higher-level reviews (see 38 CFR 3.2601(e)). Accordingly, we conducted your review at an office with the appropriate personnel available. References: For more information on where VA may conduct HLRs, see 38 CFR 3.2601. |
5.2.d. Actions to Take if an HLR is Erroneously Established |
If a higher-level reviewer identifies an erroneously established EP 030, the reviewer should:
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5.2.e. Addressing IU in an HLR |
Follow the steps in the table below to determine whether IU should be addressed in an HLR when expressly claimed or reasonably raised within the closed evidentiary record.
References: For information on
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3. Requests for Informal Conferences
Introduction |
This topic contains information on handling requests for informal conferences, including
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Change Date |
October 3, 2024
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5.3.a. Definition of Informal Conferences |
An informal conference is contact, typically by telephone, but also using other means that VA determines appropriate, for the sole purpose of allowing a claimant and/or representative the opportunity to identify any errors of law or fact in the prior decision.
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5.3.b. Overview of Informal Conferences |
When requested by the claimant or representative, VA will conduct one informal conference during a higher-level review, unless both rating and non-rating issues are present. The presence of the requester is not required if their authorized representative can attend instead.
At the local option, the higher-level reviewer or the Informal Conference Coordinator will arrange the conference, while the reviewer with decision authority over the issue will actually conduct it. VA will not accept any new evidence to support the issue(s) under review during the informal conference. See M21-5, Chapter 5, Topic 4.b.
While VA will typically conduct informal conferences telephonically or by other virtual means, VA may make an exception on an individual basis. VA may conduct the informal conference in person when good cause is shown as to why virtual communication cannot or should not occur.
If there are multiple HLRs with informal conferences requested for rating issues, attempt to schedule one informal conference to address all associated issues. The same guidance applies for multiple HLRs with informal conferences for non-rating issues. As a reminder, if there is a distinct representative for each HLR, then separate decisions are required for each HLR based on representation. In this instance, the multiple HLRs cannot be addressed under a single decision.
Note: Use of personally owned equipment (such as cellular phones) to conduct informal conferences is prohibited. Decisionmakers must use VA-furnished equipment, such as an office phone or VA-approved software (for example, a softphone or Microsoft Teams).
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5.3.c. Initial Actions |
The claimant or representative typically requests an informal conference on the HLR form, although VA will accept a separate request provided VA receives it with that form. VA cannot honor requests for informal conferences received on a later date than the requests for HLRs. VA regulations state that “a claimant or his or her representative may include a request for an informal conference with a request for higher level review.” See 38 CFR 3.2601(h).
The reviewer or Informal Conference Coordinator will make a total of two attempts to contact the claimant or his/her representative to schedule. The reviewer will hold the informal conference within seven calendar days of the successful contact. However, VA may individually grant extensions beyond the seven calendar days from contact if the pending review is still within established cycle-time goals. Please note that the number of attempts made to contact, as well as the time line for scheduling/conducting informal conferences are guidelines, not rigid requirements. Additional efforts or longer time frames may be justified on a case-by-case basis. The key point is to make reasonable efforts to hold or otherwise promptly resolve conferences.
Upon establishment of the EP, employees must add an Informal Conference special issue to at least one of the pending contentions if the claimant has requested an informal conference. The Informal Conference special issue will remain on the contention through completion of the HLR.
Note: Assume the claimant does not desire an informal conference if item 16 is blank. Request clarification only if the information is ambiguous.
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5.3.d. Contacting Requesters of Informal Conferences |
When attempting to schedule an informal conference, follow the steps in the table below.
Important: Before contacting any authorized representative or POA, ensure VA Form 21-22, Appointment of Veterans Service Organization as Claimant’s Representative, or VA Form 21-22a, Appointment of Individual as Claimant’s Representative, is of record for that POA.
If necessary, validate the accreditation status of the representative by locating the POA within the Office of General Counsel accreditation database at https://www.va.gov/ogc/apps/accreditation/index.asp. Do not contact an unaccredited POA. Instead, call the claimant at the number of record to schedule the informal conference.
If a new or different authorized representative or POA is appropriately appointed after the HLR was received but before the informal conference, contact the claimant or new representative to schedule the informal conference. Do not cancel the pending EP 030 due to a change in representation.
Note: Coordination and scheduling of an informal conference via email is permissible only if all parties involved in coordination efforts assume responsibility for proper safeguarding of personally identifiable information. Any email correspondence must be uploaded to the Veteran’s claims file in VBMS. Email should not be utilized in lieu of telephonic contact, but may be used in conjunction with telephonic contact when scheduling the informal conference.
Reference: For more information on encrypted emails, please refer to the Talent Management System (TMS) course titled VA Privacy and Information Security Awareness and Rules of Behavior (10176).
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5.3.e. Unsuccessful Initial Attempts to Contact the Requesters |
If the reviewer or Informal Conference Coordinator cannot contact the claimant or representative on the first attempt, VA will
For the permanent note in the VBMS, indicate whether a voicemail was left, using the following suggested text:
I called the requester [or the representative] regarding an informal conference for the pending higher-level review. When he [or she] returns my call, please complete a VA Form 27-0820 to capture a telephone number and a date and time over the next week when the requester or representative will be available during regular business hours for the informal conference.
The reviewer or Informal Conference Coordinator will routinely follow up in VBMS for the status of any replies.
Note: For scheduling purposes, the first business day is counted as the day after the initial contact, and the second attempt can be made on the third business day if no response is received before that time. Weekends and holidays are excluded from this count.
Examples:
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5.3.f. Unsuccessful Second Attempts to Contact the Requesters |
If VA receives no response by the third business day, make a second and last attempt to schedule the informal conference. If the second attempt fails, the reviewer or Informal Conference Coordinator will
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5.3.g. Actions to Take After Successful Contact |
If contact is made with the requester,
Important: 38 CFR 3.2601 notes that the decision maker with authority over the issues must be the one to conduct the informal conference, except under exceptional circumstances. “Exceptional circumstances” are significant events such as, but not limited to, the employee resigning or retiring from VA, reassignment to another position that does not have decision making authority, or an extended period of leave (for example, maternity leave for several months).
In the event that the employee who completed the informal conference is unable to render the final decision, follow the steps in the table below.
Note: While the addition of an HLR Informal Conference Worksheet does not technically constitute “new evidence considered,” list it nevertheless as evidence in the decision document. Refer to M21-5, Chapter 5, Topic 4 for further information on new evidence standards.
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Introduction |
This topic contains information on handling attempts to introduce new evidence during the HLR, including
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Change Date |
February 3, 2022
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5.4.a. Handling New Evidence |
If a claimant submits evidence following the closure of the evidentiary record, the reviewer will notify the claimant or representative in the final decision document that VA received the additional evidence but could not consider it. This prohibition of considering new evidence extends even to when that evidence might otherwise warrant a grant of benefits.
Document any evidence received but not considered in the HLR by adding the following statement to the decision Introduction in VBMS-Rating (VBMS-R):
Please note: The evidentiary record closed on the date of notice of our prior decision. VA received additional evidence, which was not part of that decision after the record closed. If you would like VA to consider this evidence, you may submit a supplemental claim at any time; however, VA must receive your application within one year of the date of notice of this decision to preserve your right to receive the maximum possible benefit.
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5.4.b. Attempts to Introduce Evidence During an Informal Conference |
During an informal conference, a requester or representative may wish to add to the evidentiary record or request review of evidence outside the scope of the HLR. If the requester or representative submits an argument in reference to evidence that was of record at the time of the decision under review, then it can be considered by the reviewer.
However, if the submitted argument is considered lay evidence or introduces new facts, then it cannot be considered as part of the closed evidentiary record of an HLR. If this is the case, inform the requester of the closed evidentiary record.
If the requester or representative insists on submitting the evidence, the higher-level reviewer may accept it but will inform the requester or representative the reviewer cannot consider it. The requester or representative may submit a supplemental claim after receiving the HLR decision.
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5.4.c. Documenting Evidence Not Considered |
A claimant/representative may insist that VA retain the new evidence, even after VA has stated it will not consider that evidence in the HLR. VA employees may assist subsequent decisionmakers by indicating that the eFolder contains unconsidered evidence by:
Subsequent decisionmakers who consider that evidence should re-edit the subject line: Evidence considered in decision of [date].
Reference: For more information on uploading documents to the eFolder and editing document properties, see the
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5.4.d. Differentiating Between Argument and Evidence |
The higher-level reviewer should remember that argument is not evidence. The closed evidentiary record of an HLR precludes the consideration of new evidence, but it permits the consideration of new argument.
Evidence is every type of proof offered to establish a fact. In an HLR, a claimant or representative may not introduce new facts or new evidence, whether medical or lay. When the claimant or representative attempts to submit new evidence in an HLR, the reviewer must remind the claimant or representative that the record is closed. If the claimant or representative still insists on submitting the evidence, the higher-level reviewer may accept it, but the reviewer will also inform the claimant or representative the reviewer cannot consider it. The claimant or representative may submit a supplemental claim based upon the new evidence after receiving the reviewer’s HLR decision.
Argument is the attempt to persuade someone to a particular view or belief using reason and facts. A claimant or representative may properly add, and the reviewer may properly consider, new argument to pinpoint or highlight VA’s potential misreading of facts, or its potential misapplication of law to the facts that the evidentiary record has already established.
Reference: For more information on evaluating evidence, see M21-1, Part V, Subpart ii, 1.A.1.d.
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5. Errors in the Duty to Assist
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Introduction
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This topic contains information on errors VA made in its duty to assist the claimant obtain evidence to support the prior claim, including
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Change Date |
July 15, 2024
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5.5.a. Definition of Duty to Assist (DTA) Errors |
An HLR may identify a deficiency in VA fulfilling its duty to assist (DTA) the claimant in obtaining evidence relevant to the decision under review. A DTA error is a failure during the processing of the reviewed decision to properly apply the provisions of 38 CFR 3.159 for gathering evidence. These deficiencies include omitting development or failing to request certain examinations. The reviewer must return the issue(s) for development, unless they can grant the claimant the maximum benefit, as defined in M21-5, Chapter 5, Topic 5.b.
Important: Apply the procedures for correcting DTA errors when also developing to decide downstream issues of a grant of benefits not yet fully implemented but indicated as favorable findings.
Reference: For instructions on handling evidence received after the decision under review that triggers VA’s duty to assist, see M21-5, Chapter 5, Topic 4.a.
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5.5.b. Definition of Maximum Benefit |
Maximum benefit is the highest schedular evaluation allowed by regulation for the issue under review. For ancillary benefits, an award of the benefit sought is the maximum benefit.
Important: HLRs need to consider downstream issues when granting any benefit. The highest schedular evaluation applies even if the issue is SC, as VA considers evaluation to be a downstream issue of SC.
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5.5.c. Missing VA Treatment Records |
A DTA error may occur when the Veteran or representative alleges treatment at a VA facility, but the records were not properly associated with the eFolder and considered prior to VA issuing its decision, so that decision did not list those records as evidence. The higher-level reviewer must return any affected issue(s) for correction unless the reviewer can grant the maximum benefit.
Note: Constructive notice of VA medical evidence exists when the claimant relates its specific existence and location. The mere existence of medical evidence somewhere in a VA system of records does not constitute constructive notice, and therefore cannot qualify as a DTA error. Rather, the claimant or representative must provide information sufficient to locate such records.
Reference: For more information on constructive notice, see 38 CFR 3.103(c)(2)(iii).
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5.5.d. Returning DTA Errors for Correction |
A higher-level reviewer who finds a DTA error will complete a VA Form 20-0999, Higher-Level Review Return, for the affected issue(s). Complete the Favorable Findings section of VA Form 20-0999, or, if a rating issue, use VBMS-R, as necessary to justify the development to resolve downstream or reasonably raised secondary issues that may result from a grant of benefits not yet fully implemented.
The return of a request to correct a DTA error concludes the HLR for that issue. Veteran Service Representatives (VSRs) and Rating VSRs (RVSRs) will then treat that issue like any claim requiring development.
Under the Your Benefit Information section of the decision notice, the reviewer will include the statement below to notify the claimant of the disposition of those issue(s).
We completed your request for higher-level review on the following issue(s):
However, we need to develop for additional evidence before we can properly decide your claim.
Note: Use this decision notice only when VA decides at least one issue.
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5.5.e. Handling DTA Errors |
Follow the procedures in the table below when an HLR identifies missed development or other DTA error.
Note: Generate a decision for any issue not affected by the required development action(s).
Note: HLR returns (DTA errors and Differences of Opinion) will be routed to VSCs by NWQ for development and subsequent decision on the issue(s).
References: For more information on
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5.5.f. Expediting the Correction of DTA Errors |
VSRs, authorizers, and RVSRs must expedite HLRs returned for correcting DTA errors.
Reference: For more information on expediting DTA error corrections, see
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5.5.g. Proper Tracking of DTA Errors |
To ensure proper tracking, when the higher-level reviewer returns a claim to correct a DTA error, users must ensure they are selecting the correct disposition in connection to their decision.
When generating an award for an HLR, users must review the claim and the VBMS-R codesheet to confirm the decision matches the disposition generated in VBMS Awards.
If the disposition in VBMS Awards is different than the supplemental decision on the codesheet, return the rating for correction.
Note: All contentions on an HLR and decision must have a disposition.
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6. Non-Rating Issues
Introduction |
This topic contains general information on higher-level reviews for non-rating issues, including
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Change Date |
October 23, 2023
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5.6.a. Completing Non-Rating HLRs |
Higher-level reviewers use VBMS-R to generate their rating decisions. As of October 23, 2023, all non-rating HLR decisions are generated in VBMS-Awards.
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5.6.b. Releasing Non-Rating HLR Decisions |
The NR AMA Decision will be uploaded to VBMS once complete.
A copy of the NR AMA Decision will be enclosed with the decision letter.
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7. Tracking Higher-Level Reviews
Introduction |
This topic contains information on tracking HLRs, including
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Change Date |
October 23, 2023
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5.7.a. EP and Claim Labels |
The following table is an overview of the EP and claim labels for processing HLRs:
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5.7.b. Quality Control EP and Claim Labels |
The following table is an overview of claim labels assigned because of quality reviews of HLRs at DROCs/Veterans Service Centers (VSCs) and PMCs. When quality reviews indicate that VA needs to correct errors made in processing HLRs, claims processors should establish the EP 930 in Caseflow Intake and ensure the appropriate claim label is assigned.
Note: LQE is Local Quality Error and NQE is National Quality Error.
When an EP 930 is used to correct an HLR and a DTA error is identified, the higher-level reviewer making the correction will return the DTA contentions for additional development. The resulting EP 040 will be automatically established by Caseflow. The date of the EP 040 will be the date the EP 930 was cleared.
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