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M21-1, Part III, Subpart iv, Chapter 2, Section A – Pre-Rating Review of Claims by the Rating Activity

Overview


In This Section
This section contains the following topics:

1.  Confirming Rating Activity Jurisdiction


Change Date

May 15, 2017

III.iv.2.A.1.a.  Pre-rating Review to Confirm Rating Activity Jurisdiction

The rating activity must review cases routed for a rating decision, to confirm that the claimed issues require a rating decision in accordance with M21-1, Part III, Subpart iv, 1.1.b.
Before issuing a rating decision, the rating activity must also ensure that any needed administrative decisions, such as a line of duty determination, have been completed and authorized.
References:  For more information on

2.  Reviewing for Compliance With VA’s Duty to Notify and Assist


Introduction

The following topic contains information about considering VA’s duty to notify and assist, including

Change Date

April 9, 2018

III.iv.2.A.2.a.  Duty to Notify Review by the Rating Activity

The decision maker is responsible for ensuring that the Department of Veterans Affairs’ (VA’s) duty to notify has been satisfied before proceeding to a decision.  Use the table below to review the evidence of record and ensure VA’s duty to notify requirements have been met.
If …
Then review …
VA receives a claim on the prescribed form
  • the form to ensure it is substantially complete, and
  • the claim to ensure it is not inherently incredible or lacking merit.
References:  For more information on
the form is substantially complete
the Section 5103 notice to ensure it meets the legal requirements for the claim.
Exception:  If all benefits sought can be granted, Section 5103 notice is not required.
Notes:
  • EZ forms provide the Section 5103 notice for most types of claims.
  • A notification letter providing the Section 5103 notice must be sent to the claimant if
    • the claim was not filed on an EZ form
    • the EZ form did not provide the Section 5103 notice for the specific type of claim, or
    • the claim was filed by a power of attorney.
References:  For more information on
VA becomes aware of the existence of relevant records before the claim is decided
the claims folder to ensure that VA has notified the claimant
  • of the relevant records
  • of the need for a release of records (if applicable), and
  • to obtain the records and provide them to VA if the claimant does not provide the necessary release.
evidence requested by VA from a third party does not exist or cannot be obtained
the claims folder to ensure that VA has
  • identified the records that could not be obtained
  • explained the efforts VA made to obtain the records
  • described any further action VA will take regarding the claim, including, but not limited to notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and
  • indicated that the claimant is ultimately responsible for providing the evidence.
Note:  For non-Federal records requests, VA may provide the notice at the same time it makes a follow-up attempt to obtain the relevant records.
a proposed adverse action is referred for final decision
the notice of proposed adverse action to ensure all the elements of due process have been met.
References:  For more information about
References:  For more information on

III.iv.2.A.2.b.  Duty to Assist Review by the Rating Activity

The decision maker is responsible for ensuring that the duty to assist has been satisfied before proceeding to a decision.  Use the table below to review the evidence of record and ensure VA’s duty to assist requirements have been met.
If the information or evidence is …
Then ensure VA …
collected by VA on a prescribed form
notified the claimant
  • what form must be completed
  • how the form can be obtained, and
  • when the form must be received by.
requested from Federal agencies
  • received complete records, or
  • if the records were not obtained, determined that they do not exist or additional efforts would be futile.
Reference:  For more information on duty to assist with Federal records, see
requested from the claimant and/or private providers
  • received complete records, or
  • if the records are not received, made reasonable efforts to obtain them.
References:  For more information on
VA treatment records
  • obtained all VA treatment records pertinent to the issues, and
  • associated them with the electronic claims folder.
Note:  Vet Center records require the Veteran’s authority to release records and are not stored in the Compensation and Pension Record Interchange (CAPRI).
References:  For more information on
an examination request
  • requested all exams and medical opinions, when required, and
  • included the correct information to the examiner in the request(s).
Reference:  For more information on VA’s duty to provide medical examinations or medical opinions, see
an examination report
  • received a complete examination report that is sufficient for rating purposes, or
  • received notice that the claimant failed to report.
References:  For more information on
References:  For more information on

3.  Considering Matters of Law


Introduction

This topic contains information about considering matters of law, including

Change Date

April 9, 2018

III.iv.2.A.3.a. Referring Claims to Authorization That Are Unsupported by Law

Refer a claim to the authorization activity for an administrative denial of benefits when the claimed entitlement is unsupported by law.
Example:  Such claims include pension claims from Veterans with only peacetime service.
Reference:  For more information on denying a claim without a rating decision, seeM21-1, Part III, Subpart v, 2.A.3.c.

III.iv.2.A.3.b.  Dismissing Claims Unsupported by Law

When a claim is unsupported by law, the claim
  • should be dismissed as a result of the lack of legal merit
  • does not require any development action, and
  • does not require a rating decision.
Note:  The claim must clearly be unsupported by law to be dismissed.
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