Getting a VA Higher-Level Review to Correct an Error

Veterans have the right to appeal the VA's decision if they've been denied disability compensation or believe they should have received a higher disability rating. You can win an appeal if you can show that the VA made an error on your claim that should be corrected, such as evaluating your disability under the wrong code in the Schedule of Rating Disabilities.

Sometimes veterans are denied benefits because of a procedural error. Procedural errors are mistakes the VA makes in the legal steps it must follow when reviewing your claim. A common example involves the duty to assist you in gathering your medical records. If the VA didn't fulfill this duty and made a decision without having all the necessary information, you can appeal that error.

VA Duty to Assist Errors

The duty to assist means that the VA is required to make a reasonable effort to help veterans gather evidence in support of their initial or supplemental claim for benefits. Duty to assist begins when the VA receives a complete or substantially complete application (38 CFR 21.1032). This duty can manifest in several ways. If the VA breaches their duty in any of the following ways, it's likely an error that needs to be corrected.

Failure to Help You Obtain Records

Once you tell the VA what type of records you want them to get, what dates to request, and where to get them, the VA must make reasonable efforts to get those records for you. For VA, military, and other types of federal records, that means continuing to make requests until your records are obtained (or the VA is reasonably certain that the records don't exist).

For private medical providers, reasonable effort involves making at least one follow-up request to obtain your records. If the VA is unable to get the records after that follow-up, they are required to let you know why they're having trouble getting the records and telling you what, if anything, you need to do. You'll need to give the VA permission to access your private medical records using Form 21-4142, which you can submit online.

Failure to Notify You of Required Evidence

After you apply for disability compensation or veterans' pension, the VA is required to tell you what evidence is necessary to prove your claim so that you can be awarded benefits (38 USC 5103, or "section 5103 notice"). The notice must specify evidence that you're responsible for submitting, as opposed to evidence the VA will gather on your behalf.

If you didn't receive this notification and it harmed your case, this can be an appealable error. You'll need to show that there is evidence helpful to your claim that you would have provided if the VA had told you it was needed.

Failure to Provide a Medical Examination or Opinion

In certain cases, the VA is required to provide you with a medical examination to obtain an opinion about whether your disability is service-connected. The VA is required to provide this exam if you don't have enough medical records in your file, but there's evidence that you have a current disability that may have resulted from an in-service event or injury that you experienced.

If the VA did provide a medical exam, it must meet certain requirements. The VA physician or medical provider should be knowledgeable about the type of disability being evaluated, and the doctor must explain in detail the reasoning behind their medical opinion establishing a service-connected disability.

Correcting VA Errors at Higher-Level Review

Veterans who disagree with their initial VA decision have several options for appeal: higher-level review, supplemental claims, and board appeals. The VA recommends requesting higher-level review for duty to assist errors. Higher-level review examiners can't consider any new evidence. Their role is just to look for any errors the VA may have made in the duty to assist.

You can request an optional, one-time, informal conference with a higher-level reviewer to identify specific errors in your case—for example, if the VA failed to submit a follow-up request to your private physician. Requesting an informal conference may delay your review.

Is it Good or Bad If the VA Identified an Error That Must Be Corrected?

Usually, this type of status update means that the reviewer has found a duty to assist error and needs to get additional medical records before they can make a decision on your claim. This is generally good news as it means the VA will now consider new information that they didn't have before when denying your claim. The downside is that you'll need to wait longer while the VA fixes its error.

Keep in mind that while "identifying an error" can sound concerning, it's an error made by the VA, not the veteran, so having the VA identify and fix their mistake is typically a positive development.

Higher-Level Review Correcting Errors Timeline

If the VA finds an error during higher-level review, they'll close the review and open a new claim to gather the missing evidence. The VA will also send you a letter letting you know the steps they'll take to fix the error. The VA will help you get the missing evidence that they should have obtained previously and then decide your claim with the new evidence now in the picture.

The VA strives to complete higher-level reviews in 125 days on average. But because there are so many variables at play when correcting duty to assist errors—for example, a doctor's office may be short-staffed, making some medical records especially difficult to obtain—there's no concrete time frame when you can expect a decision to be made.

Clear and Unmistakable Errors in VA Decisions

A clear and unmistakable error, or CUE, is a very specific and rare kind of error (38 CFR 1403). Higher-level reviewers can find a CUE when there's an error of fact, or misapplication of the law, that no reasonable person could disagree would manifestly change the VA decision. Essentially, a CUE is a large mistake that undeniably would have changed the outcome of a veteran's claim for benefits.

Examples of CUEs may include not applying a presumptive service connection for Gulf War veterans with certain infectious diseases, reducing your disability rating without scheduling a reexamination, or failing to review psychiatric notes containing a PTSD diagnosis even though the VA had access to these documents.

It's hard for veterans to successfully win an appeal due to clear and unmistakable error because you have to be absolutely sure that the VA's mistake would have resulted in a different outcome. But the VA can also find CUE on its own during higher-level review.

How to Appeal a Denial of VA Benefits

You have one year from the date of your initial or supplemental claim denial to request a higher-level review. For disability compensation appeals, you can submit your request online. For all types of benefits, you can print out Form 20-0996 and bring it with you to your local VA office or mail it to the appropriate office below:

You won't be able to request a higher-level review if you've already had one on the same application, or if you've had a Board of Veterans Appeals (BVA) review. You also can't get higher-level review if you have a contested claim (you and somebody else are applying for a benefit that only one of you can receive). In that case, you'll need to appeal to the BVA. For more information about your other options, see our article on the VA appeals process.

You don't need to have an attorney to request a higher-level review, but it's often a good idea. If you're denied again, you can request a BVA review, which may involve a hearing with a veterans law judge. And if the BVA denies your appeal, you might want to file with the U.S. Court of Appeals for Veterans Claims. An experienced veterans disability lawyer will be able to discuss your options at each step of the way and help you make the best decision.