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M21-1, Part III, Subpart iv, Chapter 8, Section B – Proposed Rating Decisions

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
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1.  General Information on Proposed Rating Decisions


Introduction

This topic contains general information about proposed ratings, including


Change Date

February 19, 2019

III.iv.8.B.1.a.  When to Prepare a Proposed Rating Decision

An award of compensation, pension, or Dependency and Indemnity Compensation cannot be reduced or otherwise adversely affected unless the beneficiary has been notified of the proposed adverse action and has been provided a period of 60 days in which to submit evidence showing that the adverse action should not be taken.  Refer to 38 CFR 3.103 and M21-1, Part I, 2.A – C for more information on the right to due process prior to a reduction in benefits.
Certain types of adverse actions require preparation of a proposed rating decision.  Situations requiring a proposed rating include, but are not limited to,
  • reductionof evaluation for compensation
  • reduction of pension, in certain circumstances
  • severance of service connection (SC), or
  • determinations of  incompetency for payment purposes.
Exception:  Do not prepare a proposed rating decision when the evaluation of a specific disability is reduced but the total amount of compensation is not reduced.  For example, if a reduction in a Veteran’s service-connected knee evaluation would not reduce his/her overall combined evaluation, a proposed rating decision is not necessary.
References:  For more information on

III.iv.8.B.1.b.  Preparing Proposed and Final Actions

Write the proposed and final ratings so it is clear that one is a proposed rating and the other is a final decision.
The narrative of both the proposed and final rating decisions should be provided to the beneficiary as attachments to the notice of proposed adverse action and/or decision notice.
Notes:
  • When the proposed decision would result in a reduction in combined disability evaluation if implemented, the rating decision must state the proposed combined evaluation.
  • If the facts contained in the proposed rating decision are complete (no additional evidence has been received or requires consideration), they do not need to be repeated in the final rating decision.  However, the final notification must include all required elements as detailed in M21-1, Part III, Subpart v, 2.B.1.b.
  • Include the proposed rating decision in the evidence list of the final rating decision and reference it by citing its date.
Reference:  For more information on procedures for handling notification of proposed and final rating decisions, see M21-1, Part III, Subpart v, 2.B.

III.iv.8.B.1.c.  Providing a Due Process Period

After preparing the proposed rating decision and sending the notice of proposed adverse action, allow a 60-day due process period.  This allows the beneficiary to submit additional evidence showing the proposal should not be implemented.
Reference:  For more information on the adverse action proposal period, see M21-1, Part I, 2.C.

III.iv.8.B.1.d.  Providing Notice

Refer the proposed or final rating decision to the authorization activity to provide notice of the decision.
Note:  An amended award is required when the final rating decision contains a future reduction date.
References:  For more information on

III.iv.8.B.1.e.  Preparing a Rating and Providing Notice Under the Proper Regulations

When preparing a proposed rating decision for a reduced benefit, ensure that the proper regulations, policies, and procedures are followed according to the circumstances of the proposal and issues being addressed.
Reduction of compensation frequently occurs when either improvement is shown or a Veteran fails to report for a routine future examination.  The regulations, policies, and procedures for handling the two types of proposed reductions differ but are commonly confused.  The rating decision and notice of proposed adverse action must provide the Veteran with the correct information concerning
  • reasons for the proposed decision
  • time period to submit evidence
  • proposed date of reduction, and
  • proposed combined evaluation.
Refer to the table below for more information on procedural due process involving reduction of compensation due to improvement and reduction of compensation due to failure to report for a routine future examination.
Reduction for Improvement
Reduction for Failure to Report
38 CFR 3.105(e) applies.
38 CFR 3.655(c) applies.
Procedural guidance provided in
Procedural guidance provided in
Proposed rating decision must discuss the
  • evidence showing improvement, and
  • proposed evaluation for the disability and combined disability evaluation.
Reference:  For more information on preparing the proposed rating decision, see M21-1, Part III, Subpart iv, 8.B.1.b.
Proposed rating decision must discuss
  • the failure to report for examination
  • whether good cause for failure to report has been shown
  • all evidence pertaining to the disability under review, and
  • the proposed evaluation for the disability and combined disability evaluation.
Reference:  For more information on preparing the proposed rating decision, see M21-1, Part III, Subpart iv, 8.E.1.c.
Notice of proposed adverse action will
  • provide a timeline for reduction, stating the reduction will occur the first day of the month following the 60-day notice of the final reduction, and
  • will identify improvement as the reason for the proposed reduction.
Notice of proposed adverse action will
  • provide a timeline for reduction, stating that the reduction will occur following a 60-day period during which additional statements and/or evidence may be submitted
  • identify failure to report as the reason for the proposed adverse action, and
  • provide the Veteran with information indicating that the examination will be rescheduled if willingness to report is shown.
Sixty-five days of due process are allowed following notice of proposed adverse action.
Sixty-five days of due process are allowed following notice of proposed adverse action.
The Veteran may request a hearing.
The Veteran may request a hearing.
Rating action is taken following the due process period and before final reduction occurs.
Rating action is taken following the due process period and before final reduction occurs.
Evidence received during the due process period can change the decision.
Evidence received during the due process period can change the decision.
Reduction occurs on the last day of the month following 60 days from the date the beneficiary is notified of the proposed reduction.
Note:  In the coding of the rating decision, the new reduced combined evaluation is effective on the first of the month following 60 days from the date the beneficiary is notified of the final reduction.
Reduction occurs
  • as of the date indicated in the notice of proposed adverse action, or
  • the date of last payment, whichever is later.
Note:  The date of last payment is the date shown in the LAST PAID DATE field on the AWARD INFORMATION tab in Share.
References:  For more information on
  • procedures to follow when corrected notice of proposed adverse action is required, see M21-1, Part I, 2.B.3.e, and
  • available letters for use in connection with proposals to reduce, see theVBMS User Guide.

III.iv.8.B.1.f.  New Rating Decisions Based on New Evidence

When new evidence is submitted after promulgation of a proposed rating, the rating activity is not bound to the proposed decision.  The rating activity has the authority to make new decisions as warranted by new evidence submitted after promulgation of a proposed rating.
Note:  The proposal is based on the evidence of record at the time of the proposed rating decision.  The proposal is binding with respect to that evidence only.
References:  For more information on
  • the signature requirements for the final rating decision for reductions or discontinuance due to error under 38 CFR 3.105(a) when new evidence has been received after promulgation of the proposed rating decision, seeM21-1, Part IV, Subpart ii, 3.A.2.d, and
  • handling submissions from the beneficiary during the proposal period, see M21-1, Part I, 2.C.2.

III.iv.8.B.1.g.  Preparing a New Rating Decision Following Receipt of Additional Evidence

Prepare a new rating decision if the additional evidence received is
  • new, and
  • justifies a favorable decision.
The Reasons for Decision must contain
  • a complete statement of the facts, stressing the new basis upon which the favorable action is predicated, and
  • a clear discussion of the basis for the changed decision.
Note:  When new evidence is received that changes the basis for the reduction and/or procedures for the reduction, provide a new rating decision and notice of proposed adverse action letter that reflects the proper reasons for reduction. For example, when new evidence is received following an initial proposal for a failure to report for a Department of Veterans Affairs (VA) examination and the new evidence (possibly including a VA examination) shows improvement warranting a reduction, issue a new rating decision proposing the reduction due to improvement and explaining the new reasons for the proposal.  The due process period will restart following provision of notice of proposed adverse action by the authorization activity.
References:  For more information on

III.iv.8.B.1.h.  Preparing and Sending a Final Rating Decision

If no additional evidence is submitted or if the submitted evidence does not change the proposed action
  • prepare a final rating implementing the proposal and
  • notify the beneficiary of the decision.
References:  For more information on the

2.  Contesting Proposed Rating Decisions


Change Date

February 19, 2019

III.iv.8.B.2.a.  Invalid Disagreements with Proposed Rating Decisions

A legacy notice of disagreement (NOD) or request for decision review is not valid if filed in response to a
  • notice of proposed adverse action, or
  • notice of proposed incompetency.
References:  For more information on
Historical_M21-1III_iv_8_SecB_4-26-18.doc May 15, 2019 79 KB
Historical_M21-1III_iv_8_SecB_5-1-15.doc May 15, 2019 72 KB
4-26-18_Key-Changes_M21-1III_iv_8_SecB.docx May 15, 2019 47 KB
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9-19-16_Key-Changes_M21-1III_iv_8_SecB.docx May 15, 2019 45 KB
2-19-19_Key-Changes_M21-1III_iv_8_SecB.docx May 15, 2019 46 KB
Change-May-1-2015-Transmittal-Sheet-M21-1III_iv_8_SecB_TS.docx May 15, 2019 40 KB
Transmittal-pt3_sp4_ch08_TS.doc May 15, 2019 74 KB
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