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M21-1, Part III, Subpart iv, Chapter 8, Section E – Other Due Process Concerns

Overview


In This Section

This section contains the following topics:

1.  Failure to Report for Examination Under 38 CFR 3.655(c)


Introduction

This topic contains information about

Change Date
February 19, 2019

III.iv.8.E.1.a.  Handling Failure to Report for an Examination on Continuing Entitlement

Under 38 CFR 3.655(c)(2), reduction or termination of Department of Veterans Affairs (VA) benefits is for consideration when a Veteran fails to report without good cause for a reexamination on an issue of continued entitlement to a benefit.
Example:  The Veteran fails to report without good cause for a routine future examination scheduled to assess improvement in a service-connected (SC) back strain.
However, the regulation requires due process before finalizing adverse action.
This includes
  • a notice of proposed action
  • a 60 day period to indicate willingness to report for a reexamination or to present evidence that payment for the disability (or disabilities) for which the reexamination was scheduled should not be discontinued or reduced, and
  • the opportunity to request a hearing.
Important:
  • Prior to initiating action, ensure that
    • good cause was not furnished as a reason for failing to report, and
    • the disability scheduled for reexamination is not
  • 38 CFR 3.655 does not apply in situations where the Veteran fails to report for a reexamination and any associated reduction does not impact the overall combined disability evaluation.  In those situations, reduce or terminate the disability associated with the failure to report as provided in38 CFR 3.500.
References:  For more information on

III.iv.8.E.1.b. Definition:  Static Disability

static disability is a disability that is considered permanent by its nature, history, and severity.  It is assigned a permanent evaluation without the need for future examinations to determine whether or not it has improved.

III.iv.8.E.1.c.  Preparation of an FTR Rating

When a Veteran fails to report for a review examination without good cause, and results of said examination are deemed necessary to ensure continued entitlement at the assigned level of evaluation, the rating activity must
  • review the claims folder for information about the other SC disabilities, and
  • prepare a failure to report (FTR) rating tailored to the facts of the individual case.
Use the table below to determine how to frame an FTR rating.
If, in addition to the disability subject to review examination, the Veteran possesses  …
Then …
no other static
disability(ies) or protected evaluations
  • propose reduction of the evaluation assigned for the disability(ies) under review to
    • a noncompensable level
    • the minimum schedular evaluation prescribed, if applicable, or
    • when warranted, a lesser level otherwise supported by a review of alternative evidence of record without the review examination, and
  • state in the decision narrative that “the Veteran failed to report for a review examination, and there is/are no static disability(ies)”.
remaining static disability(ies) or protected evaluations
  • propose reduction of the evaluation assigned for the disability(ies) under review to
    • a noncompensable level
    • the minimum schedular evaluation prescribed, if applicable, or
    • when warranted, a lesser level otherwise supported by a review of alternative evidence of record without the review examination, and
  • provide the new proposed combined evaluation.
References:  For

III.iv.8.E.1.d.  Addressing Absence of Good Cause in the Rating Decision

In every case where a Veteran fails to report for an examination, the rating decision must document VA’s attempts to examine the Veteran and address the issue of good cause.
Use the table below to determine how to address the issue of a Veteran’s failure to report for an examination without good cause.
If the Veteran offered …
Then state in the decision narrative …
a reason that does not constitute good cause
specifically why this does not constitute good cause under 38 CFR 3.655(a).
no reason for failure to report
that the evidence of record showed no good cause for the failure to report.

III.iv.8.E.1.e.Rating Considerations for the Proposed Decision 

As required by 38 CFR 3.655(c), a pre-determination notice should be furnished to the Veteran after it is determined that a reduction or termination of an SC disability is in order.
The rating decision should
  • review any current medical evidence of record in the claims folder
  • discuss all evidence on file that pertains to the disability under review
  • include the proposed new or continuing disability evaluation(s) for all disabilities under review, and
  • provide a proposed combined evaluation for all SC disabilities.
Note:  Do not include an effective date of the proposed reduction or termination.
References:  For more information on

III.iv.8.E.1.f.  Possible Scenarios After the Proposed Decision Is Sent Out

See the table below for action to take based on response received or no response during the due process period.
If …
Then …
within 30 days the Veteran requests a hearing
defer any further rating action until after the hearing occurs and transcript is reviewed as additional evidence.
a hearing is requested after 30 days, but before the proposed date of reduction
prepare a subsequent rating decision finalizing the proposed decision at the same time the hearing is being scheduled.
Exception:  If evidence is received which warrants a different determination, then revise the decision accordingly.
the Veteran is willing to report for an examination
defer any rating action pending results of the examination.
no response is received after 60 days
prepare a rating decision finalizing the proposed action.
Reference:  For more information on authorization action in cases of reduction or discontinuance for failure to report for review examination, see M21-1, Part IV, Subpart ii, 3.B.

III.iv.8.E.1.g.  Finalizing the Proposed Rating Action

Complete rating action to finalize the proposed decision prior to authorization action to reduce benefits.  If additional evidence is received during the 60-day period, review the evidence to determine the proper action to take.
Refer to the table below for more information on finalizing the proposed rating decision.
If …
Then …
no additional evidence was received, or if the Veteran fails to report for the rescheduled examination
  • wait to take rating action until expiration of the 60-day period, and
  • complete a rating decision to
    • restate the evidence reviewed
    • provide the previously proposed disability evaluation or decision, and
    • state the effective date of reduction.
a report of rescheduled examination is received
review the evidence to determine the level of disability warranted.  If the examination report supports
  • the current evaluation or higher, complete a rating decision indicating the final evaluation and discuss the basis for the decision, or
  • a reduced evaluation
    • complete a new proposed rating decision explaining the revised basis for the reduced evaluation, and
    • provide a new period of due process, as discussed in M21-1, Part III, Subpart iv, 8.B.1.g.
additional evidence was received, to include a hearing transcript
review the evidence to determine the level of disability supported.  If the evidence
  • supports the current evaluation or higher, complete a rating decision indicating the final evaluation and discuss the basis for the decision, or
  • continues to show the prior proposed reduction is warranted due to failure to report
    • wait to take rating action until the 60-day period expires, and
    • complete a rating decision to discuss the
      • evidence
      • previously proposed disability evaluation or decision, and
      • effective date of reduction.
Note:  For pension purposes, review evidence and assign an evaluation to each current disability. If criteria for permanent and total disability is not met, prepare a rating decision finalizing discontinuance of pension, to include any applicable special monthly pension (SMP) benefit.
Notes:
  • Code all disabilities with their new, continuing, and combined evaluations.
  • Include noncompensable SC disabilities.
  • Consider a compensable rating under 38 CFR 3.324, if applicable.
  • The effective date of the reduced evaluation under 38 CFR 3.655implementation will be the later of the following:
    • the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share, or
    • the date indicated in the notice of proposed adverse action.
  • Use the effective date the award will be reduced as the effective date for the new combined evaluation.
References:  For more information on

III.iv.8.E.1.h.  Handling Failure to Report for Examination by a Veteran Receiving Pension

A Veteran receiving pension, by definition, has been rated permanently and totally disabled.
However, if a reason to review eligibility does come up and the Veteran fails to report for the examination, review available medical evidence of record to determine continued eligibility. This includes entitlement to SMP.
Use the table below to determine which action to take based on review of the available medical evidence of record.
If the Veteran …
Then prepare a(n) …
does not continue to meet the criteria for permanent and total disability
FTR rating and notice of proposed adverse action as required by M21-1, Part III, Subpart iv, 8.E.1.c.
continues to meet the criteria for permanent and total disability
rating showing the disabilities at the static level.
Note:  Each known disability has to be reviewed for the purpose of updating evaluations assigned and determining if the criteria for permanent and total disability continues to be met.
Reference:  For more information on final action after the due process period seeM21-1, Part III, Subpart iv, 8.E.1.g.

2.  Severance of SC

 


Introduction

This topic contains information about severance of SC, such as

Change Date

February 19, 2019

III.iv.8.E.2.a.  Applying 38 CFR 3.105(a) and 38 CFR 3.105(d)

Revision of decisions which are final and binding, to include decisions of service connection (SC), derives from 38 U.S.C. 7111, and is implemented in 38 CFR 3.105.
  • Pursuant to 38 CFR 3.105(a), final and binding determinations can be reversed or amended where evidence establishes a clear and unmistakable error (CUE).
  • Under 38 CFR 3.105(d), subject to limitations in 38 CFR 3.114 and 38 CFR 3.957, SC cannot be severed unless evidence shows a CUE exists in the prior determination.  This includes all evidence of record at the time of the previous decision and evidence received after that time.
Exception:  When VA determines that there is no legal entitlement for a previous award of VA benefits (when SC is clearly illegal), VA is not required to establish that the original decision was clearly and unmistakably erroneous per 38 CFR 3.105(d) in order to sever SC.
References:  For more information on

III.iv.8.E.2.b.  Severing SC Due to Diagnosis Change

A change in diagnosis may be accepted as a basis for severance if there is certification that the diagnosis on which SC was based was clearly erroneous under 38 CFR 3.105(d).

III.iv.8.E.2.c.  Severing SC for a Psychosis

If SC is severed for a psychosis, make a determination of entitlement under 38 U.S.C. 1702.

III.iv.8.E.2.d.  Handling Severance of SC

The table below describes how to handle severing SC.
Stage
Who is Responsible
Description
1
Rating Activity
Refers all ratings proposing severance of SC to the Veterans Service Center Manager (VSCM) for approval or disapproval under 38 CFR 3.105(a).
2
VSCM
Is the rating approved?
  • If yes,
    • signs the rating, and
    • forwards the rating to authorization.
  • If no,
    • clearly marks the rating disapproved
    • signs the rating, and
    • returns the rating to the rating activity.
3
Rating Activity
  • Revises the rating, if required, to reflect the current evaluation of all SC disabilities, disposing of all other matters at issue
  • files the rating in the claims folder, and
  • returns the case to the VSCM (Step 2).
4
Authorization Activity
Processes the rating decision and adds a CUE flash in Share.

III.iv.8.E.2.e.  Handling Multiple Issues in Cases Involving Severance of SC

Prepare a single rating decision identifying both issues if a decision involves severance of SC for one disability and a reduction of evaluation for another disability.
Notify the Veteran concerning both the reduction and the proposed severance.
Reference:  For more information on notifying the Veteran of severance of SC, seeM21-1, Part IV, Subpart ii, 3.A.2.

III.iv.8.E.2.f.  Handling Increases in Compensation in Cases Involving Severance of SC

Award increased compensation if severance of SC is proposed for one or more disabilities but one or more other disabilities have increased in severity.
Notify the Veteran concerning
  • the proposed severance action
  • the increased evaluation, and
  • any reduction that will result from the severance action.

III.iv.8.E.2.g.  Preparing the Final Rating Decision in Cases Involving Severance of SC

After the 60-day period of notice during which the claimant could have submitted additional evidence, the case is referred to the rating activity for preparation of the final rating severing SC.
Include in the new combined SC evaluation only those evaluations for disabilities that remain SC.
Note:  This will ensure that no retroactive increase or benefit attributable to the severed disability will be awarded after basic entitlement is terminated.
Refer the final rating severing SC to the VSCM or VSCM-designee for approval only if new evidence has been received since the proposed decision was approved.
Important:  When rating a final severance of SC, the rating decision must address any findings that were favorable to the claimant as detailed in M21-1, Part III, Subpart iv, 6.C.5.f.
References:  For more information on

III.iv.8.E.2.h.  Handling Severance Proposals Upon the Veteran’s Death

Upon the Veteran’s death, discontinue all action on severance proposals not finalized, unless the severance would affect death benefits.
Proposals initiated but not finalized prior to notice of the Veteran’s death will be reconsidered upon receipt of a claim for death benefits.  Take into consideration all available new evidence, such as medical reports of last illness, death certificate, and autopsy report, if indicated.
When a claim for death benefits is received
  • make a proposal to sever SC, and
  • notify the death-benefits claimant of the severance proposal and provide 60 days to submit further evidence, even though the Veteran was given a prior 60-day notice.

III.iv.8.E.2.i.  Handling Severance of Clearly Illegal Grants of SC

When an award of SC was clearly illegal (when there is no legal entitlement)
  • provide due process under 38 CFR 3.103
    • propose severance, and
    • notify the claimant that there was no legal entitlement to the prior grant of benefits as SC was clearly illegal, and
  • do not apply the CUE provisions of 38 CFR 3.105(d).
Example:  Sever SC as clearly illegal when the beneficiary had no qualifying active duty to establish basic eligibility to VA benefits.
Reference:  For more information on lack of legal entitlement, see

III.iv.8.E.2.j.  Handling Increase and Secondary Claims for Conditions Found to Require Severance

If review of a claim and the associated evidentiary record reveals that an SC disability was granted in error, so as to require severance under 38 CFR 3.105(d), do not award (for any period of entitlement, and regardless of whether the evidence otherwise supports a favorable decision)
  • an increase in the evaluation of the erroneously granted disability
  • secondary SC for a disability deemed proximately due to, or the result of, the erroneously granted disability, or
  • ancillary benefits derived from the Veteran’s entitlement to SC for the erroneously granted disability.
Awarding additional benefits premised on a grant of SC that was fundamentally erroneous at its origin only serves to compound the nature of the underlying error.
Under these circumstances, follow the steps in the table below to arrive at a decision.
Step
Action
1
Ensure that existing development actions are sufficient to support a decision on the issue of increased evaluation, secondary SC, or ancillary benefit entitlement, irrespective of the proposed severance’s final outcome.
2
  • Prepare a rating decision proposing severance of SC in accordance with M21-1, Part III, Subpart iv, 8.E.2.d, and
  • defer a decision on entitlement to
    • increased evaluation, pending the proposed severance’s final outcome
    • secondary SC, or
    • ancillary benefit entitlement.
Note:  Ensure that the rating decision proposing severance of SC also proposes discontinuance of any and all previously established ancillary benefits derived from the Veteran’s entitlement to SC for the erroneously granted disability.
3
Use the table below to determine the next action once the 60-day proposal period has expired.
If review of evidence indicates that the proposed severance of SC is …
Then prepare a final rating decision that …
warranted
  • severs SC, and
  • denies entitlement to increased evaluation, secondary SC, or ancillary benefit entitlement.
not warranted
  • communicates reconsideration of the previous proposal to sever, and
  • addresses entitlement to increased evaluation, secondary SC, or ancillary benefit entitlement, as substantiated by the facts of record.

 

3.  Reversal of Prior Determinations Related to COD, LOD, or Willful Misconduct

 


Introduction

This topic contains information about reversal of prior decisions, such as

Change Date

August 1, 2006

III.iv.8.E.3.a.  Authorization Activity Jurisdiction in CUE Cases That Sever SC

Prepare an administrative decision if the authorization activity, rather than the rating activity
Note:  The decision must contain a summary of findings and a statement as to the specific CUE that was identified.
References:  For more information on

III.iv.8.E.3.b.  Preparing the Rating Decision

Refer the claims folder, if in order, to the rating activity for appropriate action.  This includes the preparation of a rating decision proposing the severance of SC under38 CFR 3.105(c) and 38 CFR 3.105(d) on the basis of the determination by the authorization activity.

III.iv.8.E.3.c.  Handling Cases of Disagreement Between the Authorization and Rating Activities

Refer the case by memorandum to the VSCM for resolution of an issue if the rating activity disagrees with the determination by the authorization activity as to COD, LOD, or willful misconduct.
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