Overview
In This Section |
This section contains the following topics:
|
1. Locations of Information Pertaining to General Authorization and Claimant Notification Issues
Introduction |
This topic provides the location of information pertaining to general authorization and claimant notification issues, including
|
Change Date |
July 17, 2015
|
IV.ii.3.A.1.a. Award and Denial Process |
For information on the award and denial process, see M21-1, Part III, Subpart v, 2.
|
IV.ii.3.A.1.b. Due Process |
For information on due process, see M21-1, Part I, 2.A.
|
IV.ii.3.A.1.c. Effective Dates for New Awards and Increased Awards |
For information on effective dates for new awards and increased awards, see
|
IV.ii.3.A.1.d. Compensation for a Child Incapable of Self-Support |
For information on compensation for a child incapable of self-support, see M21-1, Part III, Subpart iii, 7.
|
IV.ii.3.A.1.e. SMC |
For information on special monthly compensation (SMC), see M21-1, Part IV, Subpart ii, 2.H and I.
|
IV.ii.3.A.1.f. Potential Entitlement to Vocational Rehabilitation Under 38 U.S.C. Chapter 31 |
For information on notifying Veterans of potential entitlement to vocational rehabilitation under 38 U.S.C. Chapter 31, see M21-1, Part IX, Subpart i, 1.A.3.
|
2. Adverse Action Resulting From a CUE or Severance of SC
Introduction |
This topic contains information on adverse action resulting from a CUE or severance of SC, including
|
Change Date |
March 20, 2019
|
IV.ii.3.A.2.b. Authority to Sign Rating Decisions the Rating Activity Makes Under 38 CFR 3.105(a)) |
A rating decision proposing a reduction or discontinuance of benefits under 38 CFR 3.105(a) must be signed by the Veterans Service Center Manager (VSCM) or a supervisory designee no lower than a coach.
The final rating decision does not require the signature or approval of the VSCM or VSCM-designee unless the Department of Veterans Affairs (VA) received new evidence after the VSCM or VSCM-designee approved the proposed decision.
|
IV.ii.3.A.2.c. Location of Relevant Information to Consider When Correcting a CUE |
Use the information in M21-1, Part IV, Subpart ii, 3.A.3 when
|
IV.ii.3.A.2.e. Jurisdiction of the Rating Activity Over the Severance of SC |
As indicated in M21-1, Part III, Subpart iv, 8.E.2, the rating activity typically initiates action to sever service connection (SC). However, the authorization activity may do so under certain circumstances, per M21-1, Part IV, Subpart ii, 3.A.2.f.
The rating activity may reverse a previous award of SC under 38 CFR 3.105(d) if it finds that SC was awarded based on a CUE. This means that the original award had no plausible basis in the law or particular facts of the case. The error must be undebatable and not a mere difference in judgment between decision makers.
|
IV.ii.3.A.2.f. Jurisdiction of the Authorization Activity Over the Severance of SC |
The authorization activity
Note: Take action as shown in M21-1, Part III, Subpart iv, 8.E.2 even if severance of SC would not result in a reduction or discontinuance of benefits.
References: For more information on decisions concerning
|
IV.ii.3.A.2.g. Requirement for VSCM Approval of Proposals to Sever SC |
As indicated in M21-1, Part III, Subpart iv, 8.E.2.d, the VSCM must approve any proposal to sever SC.
Important: Do not inform the Veteran or Veteran’s power of attorney of a proposed severance before it is approved by the VSCM.
|
IV.ii.3.A.2.h. Time Periods to Remember When Proposing a Reduction or Discontinuance of Benefits |
When proposing a reduction or discontinuance of benefits, VA must
|
IV.ii.3.A.2.i. Process for Severing SC After VSCM Approval |
The table below describes the 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 |
After the VSCM approves a proposal to sever SC, notify the Veteran by locally-generated letter of the proposed adverse action. The letter must
References: For more information about
|
IV.ii.3.A.2.k. Effective Date of a Decision to Sever SC |
The effective date of a rating decision to sever SC is the first day of the month following a 60-day period that begins on the date on the notice of the final rating action.
Example: Given a final decision notice date of April 22,
|
IV.ii.3.A.2.l. Actions to Take on a Rating Decision to Sever SC Under 38 CFR 3.105(a) |
Use the table below to determine what actions to take after the rating activity makes a final decision to sever SC.
References: For information on making award adjustments in the
|
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 |
When a proposed adverse action, if taken, would affect a Veteran’s entitlement to benefits under another VA program, send a copy of the notice of proposed adverse action to the appropriate point of contact for that program.
Example: When proposing to sever SC, send a copy of the notice of proposed adverse action to the local vocational rehabilitation and employment (VR&E) activity, if the record shows the Veteran receives training under 38 U.S.C. Chapter 31.
Exception: Although correction of a CUE might affect a Veteran’s eligibility for VA health care, never send notice of a proposed adverse action to a VA medical center.
|
3. Reductions in Disability Evaluations Under 38 CFR 3.105(e)
Introduction
|
This topic contains information on reductions in disability evaluations, including
|
Change Date |
March 20, 2019
|
IV.ii.3.A.3.a. Role of the Rating Activity |
The rating activity
Reference: For more information on rating procedures for reducing a previously assigned disability evaluation, see M21-1, Part III, Subpart iv, 8.B, C, and D.
|
IV.ii.3.A.3.b. Application of 38 CFR 3.105(e) |
38 CFR 3.105(e) and the information in this topic apply only when a reduction or discontinuance of a running award of disability compensation is necessary as a result of
Example: If the rating activity increases the evaluation of one or more SC disabilities or grants SC for a new disability, but the combined disability evaluation decreases because of a reduction in the evaluation of another disability, then
Reference: For more information on notification requirements for reduced disability evaluations, see Stelzel v. Mansfield, No. 2007-7109 (2007).
|
IV.ii.3.A.3.c. Initial Rating Activity Action Proposing a Reduction in a Disability Evaluation |
The rating activity prepares a rating decision proposing changes in the evaluation(s) assigned to SC disabilities that will result in the reduction or discontinuance of benefits. This rating decision sets forth all material facts and reasons for the action.
The legend PROPOSAL TO REDUCE EVALUATION(S)–38 CFR 3.105(e) in the rating decision identifies the proposed disability evaluation and (if applicable) the proposed combined disability evaluation.
|
IV.ii.3.A.3.d. When 38 CFR 3.105(e) Does Not Apply |
Use the table below to determine when 38 CFR 3.105(e) does not apply.
Reference: For more information about circumstances under which 38 CFR 3.105(e) does not apply to a change in a disability evaluation, see VAOPGCPREC 71-1991.
|
IV.ii.3.A.3.e. Process for Handling a Rating Decision That Proposes a Reduction Under 38 CFR 3.105(e) |
The process for handling a rating decision that proposes a reduction in a disability evaluation under 38 CFR 3.105(e) is the same as the process described in M21-1, Part IV, Subpart ii, 3.A.2.i, except that pre-approval by the VSCM is not required.
Important: If the Veteran is eligible for pension, and the evidence of record suggests pension would be the greater or the only disability benefit to which the Veteran is entitled if VA takes the proposed action,
References: For more information on
|
IV.ii.3.A.3.f. Initial Notification of the Proposed Adverse Action |
Send a notice of proposed adverse action with a rating decision that proposes a reduction in a disability evaluation under 38 CFR 3.105(e) to a Veteran at his/her current address of record. The notice must inform the Veteran of the
Notes:
References: For information on
|
IV.ii.3.A.3.g. Action to Take if a Veteran Expresses Disagreement Before VA Makes a Final Decision |
Follow the instructions in M21-1, Part III, Subpart ii, 3.E.1.e, if a Veteran expresses disagreement before VA makes a final decision.
|
IV.ii.3.A.3.h. Action to Take After a Veteran Responds or Fails to Respond to a Notice of Proposed Adverse Action |
Use the table below to determine the action to take after a Veteran responds or fails to respond to a notice of proposed action.
|
IV.ii.3.A.3.i. Withdrawing a Proposal to Reduce a Disability Evaluation Under 38 CFR 3.105(e) |
Either the rating activity or a DRO may withdraw a proposal to reduce a disability evaluation under 38 CFR 3.105(e). This is accomplished by preparing a rating decision that confirms and continues the current disability evaluation.
|
IV.ii.3.A.3.j. Action to Take on Final Rating Decisions Prepared Under 38 CFR 3.105(e) |
Promulgate final rating decisions prepared under 38 CFR 3.105(e) by
References: For more information on promulgating rating decisions in
|
IV.ii.3.A.3.k. Providing Notification of a Final Rating Decision |
After promulgating a final rating decision,
|
IV.ii.3.A.3.l. Handling Evidence Received After Preparation of a Final Rating Decision but Prior to the Effective Date of Reduction |
Use the table below to determine what steps to take if VA receives evidence aftermaking a final rating decision under 38 CFR 3.105(e) but prior to the effective date of a corresponding reduction in benefits.
|
IV.ii.3.A.3.m. MRP Adjustment Following a Reduction in Disability Compensation |
When VA reduces a Veteran’s disability compensation to reflect a reduced disability evaluation, the Veteran’s retired pay center receives notification (via a computerized data exchange) of the reduction and makes corresponding changes to the Veteran’s military retired pay (MRP) if the Veteran waived all or a portion of his/her MRP to receive disability compensation.
|
Introduction |
This topic contains information on award adjustments under graduated TB ratings, including
|
Change Date |
May 17, 2018
|
IV.ii.3.A.4.a. Repeal of Graduated Ratings for Inactive TB |
Public Law 90-493 repealed sections 38 U.S.C. 314(q) and 38 U.S.C. 356 that provided graduated ratings for inactive tuberculosis (TB).
Important: The repealed sections still apply to any Veteran who was receiving, or was entitled to receive, disability compensation for TB on August 19, 1968, under38 CFR 3.959.
|
IV.ii.3.A.4.b. Definition: Graduated Rating |
A graduated rating is a gradual reduction in a disability evaluation for a disease that has moved from the active to the inactive stage.
|
IV.ii.3.A.4.c. Handling Rating Decisions Involving a Reduced Disability Evaluation for Inactive TB |
If a rating decision reduces a Veteran’s disability evaluation for SC TB because it is inactive,
|
IV.ii.3.A.4.d. Action to Take When the Graduation Reaches 0 Percent |
The monthly rate of disability compensation payable for TB drops to $67 (or to the peacetime-era rate of $54, if prior to July 1, 1973) on the effective date of graduation to the 0-percent disability evaluation. Use SMC code 36 in the rating decision.
If other noncompensable disabilities exist, notify the Veteran that when the disability evaluation drops to 0 percent, he/she may submit evidence from a private physician to show that the TB warrants a compensable disability evaluation.
Rationale: VA cannot award compensation in lieu of the protected amount unless the disabilities combine to provide an evaluation of at least 10 percent.
|
IV.ii.3.A.4.e. Notifying VA Outpatient Clinics of Decisions Involving SC TB |
If a Veteran is awarded the
Reference: For more information on TB, see M21-1, Part III, Subpart iv, 4.F.2.
|
5. Awards Under the Nehmer Court Order
Introduction |
This topic contains information on awards under the Nehmer court order, including
|
Change Date |
May 17, 2018
|
IV.ii.3.A.5.a. Determining the Proper Survivor of a Nehmer Class Member for Payment Purposes |
If a Nehmer class member entitled to retroactive benefits under 38 CFR 3.816(c) and (d) dies before receiving the payment of retroactive benefits, VA will award the unpaid benefits to the first individual or entity in existence at the time of payment in the following order:
Note: The survivor or estate of a Nehmer class member is not required to file an application in order to receive unpaid benefits.
Important: Under the Nehmer claims process, if a Veteran dies while his/her claim is pending, the surviving spouse is automatically substituted as the claimant or payee by virtue of being a “class member” entitled to retroactive compensation.
Reference: For more information on payment under the Nehmer stipulation, seeM21-1, Part IV, Subpart ii, 2.C.4.
|
IV.ii.3.A.5.b. Identifying the Appropriate Survivor of a Nehmer Class Member |
Review the entire claims folder to determine eligible survivor payees. Some sources of this information include, but are not limited to,
|
IV.ii.3.A.5.c. Actions to Take When the Appropriate Survivor of a Nehmer Class Member Cannot Be Located |
Use the table below to determine the actions to take when the appropriate survivor of a deceased Nehmer class member cannot be located.
Example: If an authorized representative or relative is identified in the claims folder, contact this person for information on the existence of a surviving spouse, child(ren), parent(s), or the executor/administrator of the class member’s estate. If this effort fails to identify an appropriate payee, annotate the rating decision, stating that it was not possible to locate any payee eligible for payment under Nehmer.
Reference: For more information on documenting efforts taken to identify a potential Nehmer class member, see M21-1, Part IV, Subpart ii, 3.A.5.d.
|
IV.ii.3.A.5.d. Requirement to Document Efforts Taken to Identify a Potential Payee |
Document all efforts taken to identify a potential payee on VA Form 27-0820, Report of General Information, for inclusion in the claims folder.
Important:
|
IV.ii.3.A.5.e. Identifying Other Survivors of a Nehmer Class Member Before Awarding Benefits to an Identified Payee |
Before awarding benefits to an identified payee, ask the payee to state whether or not there are any other survivors of the Nehmer class member who may have an equal or greater entitlement to unpaid benefits.
If it appears other survivors exist that may be eligible for unpaid benefits, send letters to all dependents of record, requesting their
If potential entitlement to burial benefits exists, send VA Form 21P-530, Application for Burial Benefits, to a survivor for completion.
Important:
|
IV.ii.3.A.5.f. Considering Entitlement to Additional Allowances for a Surviving Spouse |
When preparing an award of unpaid benefits to the surviving spouse of a deceasedNehmer class member, consider any additional allowances to which the surviving spouse may be entitled, including, but not limited to, an additional allowance
|
IV.ii.3.A.5.g. Payment of DIC to the Surviving Spouse of a Veteran Who Died Prior to January 1, 1993 |
If a Veteran died prior to January 1, 1993, VA pays Dependency and Indemnity Compensation (DIC) to his/her surviving spouse based on whichever of the following provisions provides the greatest benefit:
Important:
|
IV.ii.3.A.5.h. Authorization Activity Responsibility to Determine the Effective Date of an Award of DIC |
The authorization activity has sole jurisdiction in determining the effective date for DIC awards.
If VA receives a claim for DIC within one year of the Veteran’s death, the proper effective date for the corresponding award is the first day of the month of the Veteran’s death. Otherwise, the proper effective date is the first of the month following the date VA received the claim.
Exception: Per 38 CFR 3.816(d)(2), if a survivor’s claim for DIC was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation that established a presumption of SC for the covered herbicide disease that caused death, the effective date ofentitlement is the later of the following dates:
|
IV.ii.3.A.5.i. Awards of Retroactive Benefits of $25,000 or More to Incompetent Beneficiaries |
Follow the steps in the table below upon identification of an award of retroactive benefits under the Nehmer court order that
|
IV.ii.3.A.5.j. Applying a Retroactive Payment Under the Nehmer Court Order to a Debt |
Prior to releasing a retroactive payment under the Nehmer court order, use the table below to determine whether it is appropriate to apply the payment to a debt.
|
IV.ii.3.A.5.k. Annotating an Award of Retroactive Benefits Under the Nehmer Court Order |
After generating an award of retroactive benefits under the Nehmer court order, claims processors must enter the following text in the Remarks section of the award print:
Nehmer retroactive payment based on [insert the name of the new presumptive condition].
|
IV.ii.3.A.5.l. Second Signature Requirement for Award Actions Taken Under the Nehmer Court Order |
All award actions taken and notices of decision prepared under the Nehmer court order require review by and the second signature of an authorizing subject matter expert prior to finalization.
|
Historical_M21-1IV_ii_3_SecA_7-17-15.doc | May 21, 2019 | 186 KB |
Historical_M21-1IV_ii_3_SecA_6-21-16.doc | May 21, 2019 | 210 KB |
Historical_M21-1IV_ii_3_SecA_9-28-16.doc | May 21, 2019 | 200 KB |
Historical_M21-1IV_ii_3_SecA_5-17-18.docx | May 21, 2019 | 83 KB |
Historical_M21-1IV_ii_3_SecA_7-20-17.docx | May 21, 2019 | 90 KB |
9-28-16_Key-Changes_M21-1IV_ii_3_SecA.docx | May 21, 2019 | 82 KB |
3-20-19_Key-Changes_M21-1IV_ii_3_SecA.docx | May 21, 2019 | 68 KB |
Change-March-24-2015-Transmittal-Sheet-M21-1IV_ii_3_SecA_TS.docx | May 21, 2019 | 39 KB |
7-20-17_Key-Changes_M21-1IV_ii_3_SecA.docx | May 21, 2019 | 85 KB |
Historical_M21-1MRIV_ii_3_secA_3-24-2015.doc | May 21, 2019 | 146 KB |
Transmittal-Sheet-09_08_09.doc | May 21, 2019 | 89 KB |
Transmittal-Sheet-09_29_06.doc | May 21, 2019 | 73 KB |
in Chapter 3 Authorization Issues and Claimant Notification, Part IV Compensation, DIC, and Death Compensation Benefits, Subpart ii Compensation
Related Articles