M21-1, Part IV, Subpart ii, Chapter 3, Section A – General Authorization and Claimant Notification Issues

In This Section

Introduction

• award and denial process
• due process
• effective dates for new awards and increased awards
• compensation for a child incapable of self-support
• special monthly compensation (SMC), and
• potential entitlement to vocational rehabilitation under 38 U.S.C. Chapter 31.

Change Date

IV.ii.3.A.1.a.  Award and Denial Process

IV.ii.3.A.1.b.  Due Process

IV.ii.3.A.1.c.  Effective Dates for New Awards and Increased Awards

• 38 U.S.C. 5110
• 38 CFR 3.400
• 38 CFR 3.401, and
• M21-1, Part III, Subpart iv, 5.C.

IV.ii.3.A.1.d.  Compensation for a Child Incapable of Self-Support

IV.ii.3.A.1.e.  SMC

IV.ii.3.A.1.f.  Potential Entitlement to Vocational Rehabilitation Under 38 U.S.C. Chapter 31

Introduction

• rating activity action to correct a CUE
• authority to sign rating decisions the rating activity makes under 38 CFR 3.105(a)
• location of relevant information to consider when correcting a CUE
• withdrawing a proposal to correct a CUE
• jurisdiction of the
  • rating activity over the severance of SC, and
  • authorization activity over the severance of SC
• requirement for Veterans Service Center Manager (VSCM) approval of proposals to sever SC
• time periods to remember when proposing a reduction or discontinuance of benefits
• process for severing SC after VSCM approval
• information to include in the notice of proposed adverse action to sever SC
• effective date of a decision to sever SC
• actions to take on a rating decision to sever SC under 38 CFR 3.105(a), and
• action to take if a proposed adverse action would affect a Veteran’s entitlement to benefits under another Department of Veterans Affairs (VA) program.

Change Date

IV.ii.3.A.2.a.  Rating Activity Action to Correct a CUE

• proposes the change
• cites all the material facts and justification for the proposed action, and
• includes the
  • legend PROPOSAL TO REDUCE UNDER 38 CFR 3.105(a) and 3.105(e)
  • proposed evaluation of the disability in question or other action being taken, and
  • proposed combined evaluation, if applicable.

• M21-1, Part III, Subpart iv, 2.B.4, and
• 38 CFR 3.105(a).

IV.ii.3.A.2.b.  Authority to Sign Rating Decisions the Rating Activity Makes Under 38 CFR 3.105(a))

IV.ii.3.A.2.c.  Location of Relevant Information to Consider When Correcting a CUE

• determining the effective date of a correction of a CUE
• considering evidence VA receives after issuing a notice of proposed adverse action
• handling a request for a hearing, and
• notifying the Veteran.

IV.ii.3.A.2.d.  Withdrawing a Proposal to Correct a CUE

IV.ii.3.A.2.e.  Jurisdiction of the Rating Activity Over the Severance of SC

IV.ii.3.A.2.f.  Jurisdiction of the Authorization Activity Over the Severance of SC

• initiates action to sever SC if a CUE was made in a decision concerning
  • character of discharge (COD)
  • line of duty (LOD), or
  • willful misconduct, and
• refers the case to the rating activity for appropriate action under M21-1, Part III, Subpart iv, 8.E.3.

• COD, see M21-1, Part III, Subpart v, 1.B, and
• LOD and willful misconduct, see M21-1, Part III, Subpart v, 1.D.

IV.ii.3.A.2.g.  Requirement for VSCM Approval of Proposals to Sever SC

IV.ii.3.A.2.h.  Time Periods to Remember When Proposing a Reduction or Discontinuance of Benefits

IV.ii.3.A.2.i.  Process for Severing SC After VSCM Approval

IV.ii.3.A.2.j.  Information to Include in the Notice of Proposed Adverse Action to Sever SC

• thoroughly explain the
  • proposed action
  • reason for it, and
  • proposed effective date per M21-1, Part IV, Subpart ii, 3.A.2.k
• contain statements concerning the Veteran’s rights to
  • present evidence
  • request a hearing, and
  • have representation
• advise the Veteran that the present payment will continue during the time allowed for him/her to exercise those rights
• include information concerning possible pension entitlement if the evidence shows such entitlement may exist, and
• request any necessary information regarding the Veteran’s dependents, employment, and income if basic eligibility for pension exists.

IV.ii.3.A.2.k.  Effective Date of a Decision to Sever SC

IV.ii.3.A.2.l.  Actions to Take on a Rating Decision to Sever SC Under 38 CFR 3.105(a)

• Veterans Service Network (VETSNET), see the VETSNET User Guide, or
• Veterans Benefits Management System – Awards (VBMS-A), see theVBMS Awards User Guide.

IV.ii.3.A.2.m.  Action to Take If a Proposed Adverse Action Would Affect a Veteran’s Entitlement to Benefits Under Another VA Program

• role of the rating activity
• application of 38 CFR 3.105(e)
• initial rating activity action proposing a reduction in a disability evaluation
• when 38 CFR 3.105(e) does not apply
• process for handling a rating decision that proposes a reduction under 38 CFR 3.105(e)
• initial notification of the proposed adverse action
• action to take
  • if a Veteran expresses disagreement before VA makes a final decision, and
  • after a Veteran responds or fails to respond to a notice of proposed adverse action
• withdrawing a proposal to reduce a disability evaluation under 38 CFR 3.105(e)
• action to take on final rating decisions prepared under 38 CFR 3.105(e)
• providing notification of a final rating decision
• handling evidence received after preparation of a final rating decision but prior to the effective date of reduction, and
• military retired pay (MRP) adjustment following a reduction in disability compensation.

Change Date

Introduction

• repeal of graduated ratings for inactive TB
• definition of graduated rating
• handling rating decisions involving a reduced disability evaluation for inactive TB
• action to take when the graduation reaches 0 percent, and
• notifiying to VA outpatient clinics of decisions involving SC TB.

Change Date

IV.ii.3.A.4.a.  Repeal of Graduated Ratings for Inactive TB

IV.ii.3.A.4.b.  Definition:  Graduated Rating

IV.ii.3.A.4.c.  Handling Rating Decisions Involving a Reduced Disability Evaluation for Inactive TB

• prepare an amended award to input the
  • two-year, 100-percent evaluation, and
  • graduated or residual disability evaluations assigned for the future
• use the first day of the current month for the first entry of current award data, and
• inform the Veteran of the award action and that the 100-percent disability evaluation may be reduced effective an earlier date if he/she fails to
  • report for an examination scheduled by VA, and/or
  • follow the prescribed treatment.

IV.ii.3.A.4.d.  Action to Take When the Graduation Reaches 0 Percent

IV.ii.3.A.4.e.  Notifying VA Outpatient Clinics of Decisions Involving SC TB

• two-year, 100-percent disability evaluation for inactive TB, notify the Chief, Medical Administration Services, or equivalent, of the outpatient clinic responsible for the Veteran’s follow-up care, or
• one-year, 100-percent disability evaluation for inactive TB,
  • send the outpatient clinic responsible for the Veteran’s follow-up care a copy of the rating decision in which VA initially granted SC for TB, and
  • do not send any other notice to the Chief, Medical Administration Services, of the outpatient clinic responsible for the Veteran’s follow-up care.

Introduction

• determining the proper survivor of a Nehmer class member for payment purposes
• identifying the appropriate survivor of a Nehmer class member
• actions to take when the appropriate survivor of Nehmer class member cannot be located
• requirement to document efforts taken to identify a potential payee
• identifying other survivors of a Nehmer class member before awarding benefits to an identified payee
• considering entitlement to additional allowances for a surviving spouse
• payment of Dependency and Indemnity Compensation (DIC) to the surviving spouse of a Veteran who died prior to January 1, 1993
• authorization activity responsibility to determine the effective date of an award of DIC
• awards of retroactive benefits of $25,000 or more to incompetent beneficiaries
• applying a retroactive payment under the Nehmer court order to a debt
• annotating an award of retroactive benefits under the Nehmer court order, and
• second signature requirement for award actions taken under theNehmer court order.

Change Date

IV.ii.3.A.5.a.  Determining the Proper Survivor of a Nehmer Class Member for Payment Purposes

• spouse at the time of death, regardless of current marital status
• child or children, divided into equal shares if more than one child exists,regardless of age or marital status
• parents, with half of the retroactive benefits owed paid to each parent, regardless of dependency status, or
• the class member’s estate.

IV.ii.3.A.5.b.  Identifying the Appropriate Survivor of a Nehmer Class Member

• benefit applications
• statements from the Veteran
• Compensation and Pension Record Interchange records
• Share inquiries
• Modern Awards Processing – Development notes, and
• Participant Profile.

IV.ii.3.A.5.c.  Actions to Take When the Appropriate Survivor of a Nehmer Class Member Cannot Be Located

IV.ii.3.A.5.d.  Requirement to Document Efforts Taken to Identify a Potential Payee

• On the VA Form 27-0820, summarize the actions taken to identify a potential payee.
• If retroactive benefits are not payable to the potential payee, describe on the form the reason(s) why.

• Prepare a separate VA Form 27-0820 for each potential payee with whom contact is attempted or made.
• Claims processors must take the actions described in this block, as theNehmer court order mandates that VA notify class counsel for National Veterans Legal Services Program if VA is unable to identify a payee.

IV.ii.3.A.5.e.  Identifying Other Survivors of a Nehmer Class Member Before Awarding Benefits to an Identified Payee

IV.ii.3.A.5.f.  Considering Entitlement to Additional Allowances for a Surviving Spouse

IV.ii.3.A.5.g.  Payment of DIC to the Surviving Spouse of a Veteran Who Died Prior to January 1, 1993

• 38 U.S.C. 1311(a)(3), which is based on the Veteran’s pay grade, or
• 38 U.S.C. 1311(a)(1) and 38 U.S.C. 1311(a)(2), which is based on
  • the basic rate of DIC, and
  • any additional allowance payable due to the Veteran being
    • rated as totally disabled for at least eight continuous years prior to his/her death, and
    • married to the surviving spouse for the same period of time.

• Grant entitlement to DIC when a disability for which VA granted SC on a presumptive basis was the primary, secondary, or a contributory cause of death.
• The pay grade of Veterans that died prior to December 31, 1992, must be verified with service documents.
• Verification of a Veteran’s pay grade is not required when awarding DIC
  • to children or parents, or
  • if the Veteran died after December 31, 1992.

IV.ii.3.A.5.h.  Authorization Activity Responsibility to Determine the Effective Date of an Award of DIC

IV.ii.3.A.5.i.  Awards of Retroactive Benefits of $25,000 or More to Incompetent Beneficiaries

IV.ii.3.A.5.j.  Applying a Retroactive Payment Under the Nehmer Court Order to a Debt

IV.ii.3.A.5.k.  Annotating an Award of Retroactive Benefits Under the Nehmer Court Order

IV.ii.3.A.5.l.  Second Signature Requirement for Award Actions Taken Under the Nehmer Court Order