ptsd Subj: Veterans Claims Assistance Act Of 2000

[allan]

DEPARTMENT OF VETERANS AFFAIRS

Veterans Benefits Administration

Washington DC 20420

December 13, 2000

In Reply Refer To: 211

Director (00/21) Fast Letter (00-92)

All VBA Regional Offices and Centers

SUBJ: Veterans Claims Assistance Act of 2000

On November 17, 2000, you were sent VBA Fast Letter 00-87 which contained general guidance on claims processing under the Veterans Claims Assistance Act of 2000 (the Act). Many Regional Offices submitted questions regarding the policy and procedures stated in the Fast Letter. We addressed many of these questions in the conference call of November 28, 2000. The purpose of this Fast Letter is to reiterate the responses we gave in the conference call and address some of the additional questions we received. We continue to discuss many of these issues with our stakeholders, with personnel in Regional Offices, and with VA General Counsel and expect to issue additional guidance as needed. We are developing a regulation which would supersede the informal guidance contained in these Fast Letters, to the extent of any inconsistency.

In addition, we have received a number of comments and questions concerning issues related to the scope of the claims which must be reviewed under the Act. We are continuing to discuss this issue and will provide further guidance on this topic very shortly.

Review of claims previously denied as not well grounded.

1. Do we initiate development on all claims we find that were previously denied as not well grounded after July 14, 1999? Is it necessary to initiate development on the claims, giving the claimants another opportunity to respond, or can we merely re-rate the claim and deny on the merits of the case?

We cannot merely re-rate the claim and deny on the merits of the case. For all claims we readjudicate, we must provide the claimants with the statutory notice mandated by the Act, identifying the information or evidence necessary to substantiate the claim. The notice must also tell the claimant which portion of that information and evidence, if any, is to be provided by the claimant and which portion VA will attempt to obtain on the claimant’s behalf. We must give the claimant an opportunity to respond by submitting the requested information or evidence, and we must develop for all relevant Federal and non-Federal records the claimant identifies, if not already of record

2. Can a representative of a claimant file the request for readjudication under the new law?

Yes, a representative can act on the claimant’s behalf in this request as he/she can act in any other matter.

3. Your letter implies that the original decision is essentially vacated. Can there be an appeal then? Is what was accepted as an NOD on this category of cases essentially the request for readjudication?

The claims denied as not well grounded should not be “vacated” in the sense of being removed from the file. The old decisions, although no longer effective, should remain a part of the file. Since claims pending appellate action are not final decisions, they should be reviewed for compliance with the duty to assist requirements of the Act. Ensure that the new notice and development provisions of the Act have been met. If after appropriate notice and full development based on our duty to assist, benefits sought are denied, continue processing the appeal.

In the November 28 conference call, we stated that the claimant should be advised that he or she would need to file another NOD or Form 9 substantive appeal to appeal the new decision because the Act required us to treat the prior denial as if it had not been made. We have revised this guidance. Because BVA remand cases retain their docket numbers, claims in appeal status at the regional office level should be similarly treated. Claimants who have filed substantive appeals should similarly retain their docket numbers, and those who have filed NODs should likewise retain their places in the appeal time line. Therefore, do not advise the claimant that he or she needs to file another NOD or Form 9. Readjudicate the claim, and if it remains denied, issue a Statement of the Case or Supplemental Statement of the Case as appropriate.

4. There is a two-year time limit given for requests for readjudication. Is there a time limit on readjudicating any case we discover on our own? If so, how would readjudication without a request affect the effective date under §3.114? Does this mean that any case which contains a claim that was denied as not well grounded which is reviewed for any purpose in the future must be readjudicated?

The statute applies a two-year time limit for readjudicating claims on VA’s own motion. The Act does not require VA to locate and readjudicate all claims previously denied as not well grounded. However, we believe it is fair to readjudicate claims that have been denied as not well grounded if we come across them in other administrative or case reviews within the two-year time limit set forth in the Act. For those cases, the resulting decision must be made as if the prior decision had never existed. If benefits are granted, the effective date must reflect when the claim readjudicated was received in accordance with §3.400. Claims for readjudication received after the statutory two-year time limit, must be considered reopened claims subject to new and material evidence requirements. We have concluded that the Act is not a “liberalizing law or regulation” subject to provisions of §3.114 for reopened claims received outside the two-year window for readjudication.

5. If a claim has been previously denied as not well grounded because a condition was not a disability under the law, such as high cholesterol, how should we proceed under the new law? Because the final rating would be a denial, should we develop? Can we deny on the merits without further development?

The law states that we do not have to assist in developing claims where there is no reasonable possibility that our assistance would help substantiate the claim. A claim for compensation for high cholesterol is a claim for compensation for an isolated risk factor and not a claim for a disability for which compensation can be granted. Therefore, no reasonable assistance on the part of VA can help establish entitlement to compensation for high cholesterol in and of itself, as a matter of law. We will define, by regulation, those claims for which we are not required to provide assistance. In the meantime, err on the side of developing a claim rather than not developing it.

General Development Issues

6. What should our initial development look like? It appears that simply asking for all treatment records since discharge in an original claim is not sufficient. We must notify the claimant of any information or evidence "necessary to substantiate the claim; and what information or evidence he or she is to submit to us."

In an initial claim in which the claimant has not identified any relevant supporting evidence, send the claimant a letter notifying him or her of the general requirements necessary to establish entitlement to the claimed benefit, and request that the claimant identify any records he or she believes are relevant. Request medical releases where appropriate. Upon receipt of this information from the claimant, you should be able to identify what information or evidence the claimant is to provide to VA and what information or evidence the Act requires VA to try to obtain. The Act requires that you notify the claimant which information or evidence that the claimant must provide and which VA will attempt to obtain on behalf of the claimant.

We are working on PCGL letters that address this issue.

7. How does the new duty to assist legislation impact our development of claims for service connection on a secondary basis? We have a veteran who is claiming CAD and HTN secondary to his service-connected PTSD. He submitted current medical evidence of a disability. We previously sent him a Morton letter requesting evidence of a link between the two. He did not respond.

We are required to request an examination and/or medical opinion when, after development of available evidence there is (1) evidence of current disability, (2) indication that there may be a relationship to military service and (3) available medical evidence is not sufficient to resolve the claim. In the example given there is (1) evidence of current disability, (2) possible relationship to military service based on secondary service connection (38 CFR 3.310), and (3) evidence is not sufficient to either establish or deny a relationship and therefore a medical opinion should be requested.

The need for a medical opinion must be determined on an individual case basis. Evidence of a link need not be provided by the claimant. Requests for medical examinations and medical opinions are often judgment issues. You are cautioned, however, that when you exercise your judgment, that if you err, you err on the side of the veteran. When in doubt you should request an examination or opinion.

8. Your letter stated what information we should request from the claimant to "adequately identify" medical records we are to try to obtain; it does not include information regarding addresses of the custodians of these records. Would it then be our "duty to assist" to find these addresses, or would "adequate identification" also include supplying a valid address?

Adequate identification would ordinarily include the addresses of the custodians of the records. However, if you can help the claimant in finding the complete address of a custodian of records you should do so.

Records Requests

9. Is it possible to determine, sight unseen, that a record may actually be "relevant?"

While not possible to determine definitively that records may be relevant to a claim, we should err on the side of requesting the records of the treatment the claimant cites in his/her claim. In addition, the information provided by the claimant in identifying the records should help you determine if the records appear, on their face, to have no relevance whatsoever to the claim. It would be advisable to request records identified by a claimant unless there is no reasonable possibility that they would tend to support a claim.

10. Regarding obtaining Federal records, your letter states that a "conclusion that further attempts [to obtain Federal records] would be futile should be determined case by case." Currently, we must make an administrative decision when it is determined that SMR's are not available. Would we be required to make a similar administrative decision for all unavailable Federal records? Should we notify the claimant if we are unable to obtain Federal records?

If you receive an affirmative statement from a Federal records custodian that requested records do not exist or are not in its possession, you do not have to make an administrative decision that the SMR’s or other Federal records are not available. You may advise the claimant of the evidence you received and the evidence you were unable to obtain in the rating decision and in the rating decision notification letter. We will revise the manual to conform with this answer.

Although not clear in Fast Letter 00-87, the statutory requirement that VA notify a claimant when it is unable to obtain records applies to our efforts to request both Federal and non-Federal records. If your efforts to obtain Federal records have been exhausted, permitting you to conclude that it is reasonably certain that they do not exist or that further efforts to obtain them would be futile, you must provide the claimant with the notice required by the statute. This notice must identify the records we were unable to obtain; briefly explain the efforts made to obtain them; and describe any further action we will take with respect to the claim. Note that we have a higher burden to obtain Federal records. Pending publication of a final regulation on this issue, our guidance is that you can be reasonably certain that you have exhausted your reasonable efforts to obtain Federal records when you receive notice from the records custodian that it does not have those records or they do not exist.

11. Are Army National Guard Records from the State considered Non-Federal or Federal sources?

Because they are records related to military service, use the reasonable efforts provisions applicable to requesting Federal records.

12. Does this mean that any development we completed relative to non-Federal records not received must have follow-ups done before a decision can be made?

The Act requires that we make reasonable efforts to obtain relevant records identified by the claimant, and if our efforts fail, we must send a notice to the claimant that identifies the records we were unable to obtain; briefly explains the efforts made to obtain them; and describes any further action we will take with respect to the claim. If your development efforts and communications with the claimant do not meet these new requirements, then you must comply with the new law before a decision can be made. This may mean that you send a follow-up request before a decision can be made.

Notice to claimants re: failure to obtain requested records

13. You state that the Act requires that we inform the claimant of our inability to obtain relevant records. When do we send this notice? Do we allow the claimant time to respond to it?

Since the date of the issuance of Fast Letter 00-87, we have further explored this notice issue. Pending publication of a final regulation implementing the Act, use the following interim policy, which is a change from that stated in Fast Letter 00-87:

• No supporting evidence identified: If an application for benefits does not identify any relevant supporting evidence, send the claimant a letter notifying him or her of the general requirements necessary to establish entitlement to the claimed benefit, and request that the claimant identify any records he or she believes are relevant. Request medical releases where appropriate. Allow 60 days for a response.

• Supporting evidence sources identified: Upon receipt of information from the claimant identifying supporting evidence sources, you should be able to identify what information or evidence the claimant is to provide to VA, and what information or evidence the Act requires VA to try to obtain. Notify the claimant which information or evidence that the claimant must provide and which VA will attempt to obtain on behalf of the claimant. Request the relevant supporting evidence from the Federal or non-Federal sources. Allow 60 days for a response.

• Development for non-Federal records: If you do not receive a response from an initial request for non-Federal records, send a follow up letter to the non-Federal records custodian. At the same time, send the notice to the claimant required by the Act identifying the records we were unable to obtain; briefly explaining the efforts made to obtain them; and describing any further action we will take with respect to the claim. This further action may include processing the claim on the evidence of record. Allow 30 days for a response. After 30 days, continue processing the claim, ordering an exam or medical opinion, or taking any further action including rating it on the evidence of record. Ordinarily, you will have to wait until you receive requested documents to know if a VA examination is necessary to decide the claim.

• Development for Federal records: If you do not receive a response from Federal records custodians, continue efforts to obtain those records until a definitive response is received, either the records sought or statement that the records are not available. Inform the claimant of the status of his/her claim including our efforts to obtain identified records.

• Development for both Federal and non-Federal records: If both Federal records and non-Federal records have not been received after 60 days, notice about status of both requests may be included in a single letter, but the letter must clearly differentiate between the actions we will take concerning these two different categories of records. When definitive notice is received concerning Federal records, further action may be taken on the claim (e.g., rating decision, request for examination) if all other duty to assist requirements have been met. If Federal records cannot be provided, the rating decision and letter of notification must clearly indicate that the custodian of the identified Federal records stated that the records can not be provided.

14. Should we send the notice to the claimant identifying the records we could not obtain if the claimed benefit can be granted?

The statute makes no exception for claims that can be granted. You should provide the notice advising the claimant of your inability to obtain the requested records, but do not delay in granting the claim. The records you were unable to obtain may be relevant to evaluation or effective date, and the claimant should be made aware that you were unable to obtain them. You should include this notice in the rating decision and notification letter.

15. Fast Letter 00-87 states that we should advise the claimant of their responsibility for obtaining the evidence at the time of our follow-up request. Should this not be done at the outset to promote more timely responses?

It would be advisable to include such a statement in all our development letters.

Exam criteria

16. While the veteran or other lay individual can provide lay testimony of current symptoms of disability, we also require supporting evidence from service records or other sources to substantiate the event or injury. Doesn’t the determination of whether a current disability/symptoms “may be associated with service” require medical evidence that the service event and the present disability may be related? Do we need medical evidence of nexus prior to ordering an exam? If not, are we are using our own lay judgment to determine a possible connection?

We believe that there should be some supporting evidence indicating that the claimant experienced an event, injury or disease in service before a VA examination is scheduled or a VA medical opinion is requested except in the case of a claim from a combat veteran related to a combat injury. However, we do not need nexus evidence prior to scheduling a VA examination or requesting a VA medical opinion. The threshold criteria for assisting a claimant in developing evidence by way of VA examination or medical opinion is low. The Act envisions that the possible "association" between a current condition or symptoms and service should be clarified by VA examination or opinion evidence when necessary. In many cases, evidence of continuity or post-service treatment may indicate the association. In those cases of adequate continuity evidence which would allow grant of service connection, you would not have to ask for a medical opinion.

We are currently reviewing our VA examination and medical opinion protocols to clarify those circumstances in which a VA medical opinion would be necessary. In the interim, use common sense; schedule an examination or request a medical opinion unless the evidence of record makes it absolutely clear that there is no relationship between an established in-service event, injury or disease and current symptoms or disability.

17. Your example indicates we are to examine if there is competent evidence of a current POW-related presumptive condition. You also state that we may accept competent evidence other than medical evidence that the claimant has persistent or recurring symptoms of disability, including the veteran's own statements regarding symptoms. Assume the veteran submits no medical records showing either condition.

We believe that pending publication of a final regulation, it would be good policy to examine a veteran claiming service connection for a presumptive condition if he or she is filing a claim within the applicable presumptive period and has the required service to qualify for the presumption. The examination would definitively establish whether the claimant has the presumptive condition, and we would be able to decide the case thereafter. Of course, consistent with case management principles, a best practice would be to contact the veteran to determine if there might be an available source of medical evidence which might allow a decision on his claim sooner and without requiring the veteran to report for an examination.

Note: 38 CFR §3.326(b) states that you cannot deny monetary benefits to a former POW unless you have offered a complete physical examination at a VA hospital or VA outpatient clinic.

18. Would lay evidence from a spouse stating "my husband doubles over in pain every day from stomach problems" be sufficient lay evidence to establish "symptoms"?

Yes. However, it is not possible to establish a bright line rule for every claim in which the claimant presents competent lay evidence of symptoms of disability. Clearly, the Act intends that competent lay evidence be sufficient to establish persistent and recurrent symptoms of disability. In such circumstances, you must use your best judgment. As stated previously, we are working on establishing new examination and medical opinion protocols. In the interim, err on the side of scheduling an examination or requesting a VA medical opinion. Consider the nature of the disability, the length of time since discharge, and the nature of the current complaints.

19. We are directed to schedule an examination if there is competent evidence of a current POW-related presumptive condition. If the evidence is adequate for rating purposes, i.e., adequate not only to establish service connection, but also to assign a level of disability, is an examination required?

No. The statute states that an examination/medical opinion is only required when the medical evidence of record is insufficient to make a decision on the claim. Note that 38 CFR §3.326(b) requires that we offer an examination to any former POW only before we deny monetary benefits.

One year time frame to submit evidence

20. You indicated that the notice we send a claimant must inform him/her that if the information or evidence requested from the claimant to substantiate the claim is not received within one year from the date of the notice, no benefit may be paid on that application. Is this the preferred language? Specifically, if we receive some of the requested information or evidence but not all of it, do we really mean to imply that no benefits will be paid? It is perfectly possible that only one piece of evidence would be adequate to grant a claim; this statement would appear to discourage a claimant who has that one piece from submitting it when something else cannot be obtained.

The language contained in the letter is based on the statutory language. However, we do not construe the language to force us to arrive at an illogical result. If we can grant the claim based on the evidence we have, even though the claimant has not submitted some of the information or evidence requested, we should do so, after making reasonable efforts to obtain the identified evidence.

Remands/Appeals

21. What number of cases are anticipated to be remanded by BVA due to this change in law? Will these be included in a Station's Remand Rate Data?

We estimate that 6000 to 6500 cases will be returned to the regional offices by BVA and the Courts over a four to six month period. They will be included in a station’s Remand Rate Data.

EP’s

22. Does the exclusion of EP 690 for any other purpose affect the use of EP 692 (for dependency verification) and EP 694 (for COLA processing)?

No.

23. Should we control claims that we identify as needing readjudication (no request from claimant to readjudicate) under EP 020?

Yes, and EP 684. The date of claim for both is the date the claim is reopened by the claimant or us.

24. Is EP 690 only for those claims that are currently still pending but developed under the old guidelines or does it include finalized decisions (no pending EP) that the RO identifies as needing readjudication?

EP 690 is to be used with cases currently pending but developed under old guidelines. It should not be used with NWG decisions that must be readjudicated. EP 684 should be used in these cases. In both cases, the EP 690 and EP 684 should be used in addition to the controlling EP.

25. We have a number of cases which were disallowed as not well grounded without reviewing service medical records (SMRs). When the SMRs show up we were re-rating those cases under EP 930. We plan to fully develop those cases, including examination/opinion if needed, controlling under the EP 020 series. This appears in line with FL 00-87.

Use EP 020 and 684 for those cases.

26. We note that a concurrent EP 684 is to run with requests from claimants and concurrent 690 is to run with claims pending on 11/09/00. Which one of these concurrent EP's is to run with cases denied as not well grounded but readjudicated based on receipt of SMRs? based on referral by STAR reviewer? based on our own initiative for other reasons?

684, 684, and 684. Where cases are reopened EP 684 should be used. For cases already pending EP 690 should be used.

27. Should the EP's 684 and 690 specified in paragraphs 8 and 9 of Fast Letter 00-87 be canceled when the "underlying" EP is taken or should they be taken along with the "underlying" EP?

They should be cleared, not canceled, with the “underlying” EP.

28. Regarding dates of claim for end products for readjudicated cases: are these to be the date of the request (or "discovery"), or the date of the claim that was previously denied? If there is no request for readjudication, would the "controlling" EP also be an 020, or some other end product?

The date of claim for a reopened or “discovered” cases should be the date the claim is reopened or discovered, NOT the date the claim was previously denied. The controlling EP will also be an 020, or other appropriate EP.

29. One of the teams in our station asked whether or not it mattered if a 691 was used instead of a 690. Their reasoning for using a 691 was that when a claimant calls in and asks for a status on his/her claim, VSRs could readily determine, by doing a PINQ, if the claim in question was being "rehabilitated." EP 690 is used for a variety of other purposes, but we know of no current use for a 691. Will it mess up your tracking system if a 691 is used rather than a 690?

EP 690 should only be used in cases where we are rehabilitating a pending case based on our duty to assist. All other instances where EP 690 might have been previously established and/or taken should now use EP 692. EP 691 is not necessary as we should also be able to identify the issue by the date of claim, 11/9/00, for the EP 690.

We are continuing to work on building a regulatory and procedural framework to support this legislation and appreciate the ideas and insights you provide. We have attached a copy of the Act for your reference. We will continue to review the questions and comments submitted by Regional Offices to the Q&A mailbox at VAVBAWAS/CO/21Q&A and respond to them as appropriate. We plan to have another conference call within the next few weeks.

/s/

Robert J. Epley

Director, Compensation and Pension Service

Attachment

One Hundred Sixth Congress

of the

United States of America

AT THE SECOND SESSION

Begun and held at the City of Washington on Monday,

the twenty-fourth day of January, two thousand

An Act

To amend title 38, United States Code, to reaffirm and clarify the duty of the Secretary of Veterans Affairs to assist claimants for benefits under laws administered by the Secretary, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Veterans Claims Assistance Act of 2000'.

SEC. 2. CLARIFICATION OF DEFINITION OF `CLAIMANT' FOR PURPOSES OF VETERANS CLAIMS.

Chapter 51 of title 38, United States Code, is amended by inserting before section 5101 the following new section:

`Sec. 5100. Definition of `claimant'

`For purposes of this chapter, the term `claimant' means any individual applying for, or submitting a claim for, any benefit under the laws administered by the Secretary.'.

SEC. 3. ASSISTANCE TO CLAIMANTS.

(a) REAFFIRMATION AND CLARIFICATION OF DUTY TO ASSIST- Chapter 51 of title 38, United States Code, is further amended by striking sections 5102 and 5103 and inserting the following:

`Sec. 5102. Application forms furnished upon request; notice to claimants of incomplete applications

`(a) FURNISHING FORMS- Upon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit.

`(b) INCOMPLETE APPLICATIONS- If a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application.

`Sec. 5103. Notice to claimants of required information and evidence

`(a) REQUIRED INFORMATION AND EVIDENCE- Upon receipt of a complete or substantially complete application, the Secretary shall notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of that notice, the Secretary shall indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary, in accordance with section 5103A of this title and any other applicable provisions of law, will attempt to obtain on behalf of the claimant.

`(b) TIME LIMITATION- (1) In the case of information or evidence that the claimant is notified under subsection (a) is to be provided by the claimant, if such information or evidence is not received by the Secretary within 1 year from the date of such notification, no benefit may be paid or furnished by reason of the claimant's application.

`(2) This subsection shall not apply to any application or claim for Government life insurance benefits.

`Sec. 5103A. Duty to assist claimants

`(a) DUTY TO ASSIST- (1) The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claimant's claim for a benefit under a law administered by the Secretary.

`(2) The Secretary is not required to provide assistance to a claimant under this section if no reasonable possibility exists that such assistance would aid in substantiating the claim.

`(3) The Secretary may defer providing assistance under this section pending the submission by the claimant of essential information missing from the claimant's application.

`(b) ASSISTANCE IN OBTAINING RECORDS- (1) As part of the assistance provided under subsection (a), the Secretary shall make reasonable efforts to obtain relevant records (including private records) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain.

`(2) Whenever the Secretary, after making such reasonable efforts, is unable to obtain all of the relevant records sought, the Secretary shall notify the claimant that the Secretary is unable to obtain records with respect to the claim. Such a notification shall--

`(A) identify the records the Secretary is unable to obtain;

`(B) briefly explain the efforts that the Secretary made to obtain those records; and

`© describe any further action to be taken by the Secretary with respect to the claim.

`(3) Whenever the Secretary attempts to obtain records from a Federal department or agency under this subsection or subsection ©, the efforts to obtain those records shall continue until the records are obtained unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile.

`© OBTAINING RECORDS FOR COMPENSATION CLAIMS- In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (b) shall include obtaining the following records if relevant to the claim:

`(1) The claimant's service medical records and, if the claimant has furnished the Secretary information sufficient to locate such records, other relevant records pertaining to the claimant's active military, naval, or air service that are held or maintained by a governmental entity.

`(2) Records of relevant medical treatment or examination of the claimant at Department health-care facilities or at the expense of the Department, if the claimant furnishes information sufficient to locate those records.

`(3) Any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes the Secretary to obtain.

`(d) MEDICAL EXAMINATIONS FOR COMPENSATION CLAIMS- (1) In the case of a claim for disability compensation, the assistance provided by the Secretary under subsection (a) shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim.

`(2) The Secretary shall treat an examination or opinion as being necessary to make a decision on a claim for purposes of paragraph (1) if the evidence of record before the Secretary, taking into consideration all information and lay or medical evidence (including statements of the claimant)--

`(A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and

`(B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but

`© does not contain sufficient medical evidence for the Secretary to make a decision on the claim.

`(e) REGULATIONS- The Secretary shall prescribe regulations to carry out this section.

`(f) RULE WITH RESPECT TO DISALLOWED CLAIMS- Nothing in this section shall be construed to require the Secretary to reopen a claim that has been disallowed except when new and material evidence is presented or secured, as described in section 5108 of this title.

`(g) OTHER ASSISTANCE NOT PRECLUDED- Nothing in this section shall be construed as precluding the Secretary from providing such other assistance under subsection (a) to a claimant in substantiating a claim as the Secretary considers appropriate.'.

(b) REENACTMENT OF RULE FOR CLAIMANT'S LACKING A MAILING ADDRESS- Chapter 51 of such title is further amended by adding at the end the following new section:

`Sec. 5126. Benefits not to be denied based on lack of mailing address

`Benefits under laws administered by the Secretary may not be denied a claimant on the basis that the claimant does not have a mailing address.'.

SEC. 4. DECISION ON CLAIM.

Section 5107 of title 38, United States Code, is amended to read as follows:

`Sec. 5107. Claimant responsibility; benefit of the doubt

`(a) CLAIMANT RESPONSIBILITY- Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.

`(b) BENEFIT OF THE DOUBT- The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.'.

SEC. 5. PROHIBITION OF CHARGES FOR RECORDS FURNISHED BY OTHER FEDERAL DEPARTMENTS AND AGENCIES.

Section 5106 of title 38, United States Code, is amended by adding at the end the following new sentence: `The cost of providing information to the Secretary under this section shall be borne by the department or agency providing the information.'.

SEC. 6. CLERICAL AMENDMENTS.

The table of sections at the beginning of chapter 51 of title 38, United States Code, is amended--

(1) by inserting before the item relating to section 5101 the following new item:

`5100. Definition of `claimant'.';

(2) by striking the items relating to sections 5102 and 5103 and inserting the following:

`5102. Application forms furnished upon request; notice to claimants of incomplete applications.

`5103. Notice to claimants of required information and evidence.

`5103A. Duty to assist claimants.';

(3) by striking the item relating to section 5107 and inserting the following:

`5107. Claimant responsibility; benefit of the doubt.';

and

(4) by adding at the end the following new item:

`5126. Benefits not to be denied based on lack of mailing address.'.

SEC. 7. EFFECTIVE DATE.

(a) IN GENERAL- Except as specifically provided otherwise, the provisions of section 5107 of title 38, United States Code, as amended by section 4 of this Act, apply to any claim--

(1) filed on or after the date of the enactment of this Act; or

(2) filed before the date of the enactment of this Act and not final as of that date.

(b) RULE FOR CLAIMS THE DENIAL OF WHICH BECAME FINAL AFTER THE COURT OF APPEALS FOR VETERANS CLAIMS DECISION IN THE MORTON CASE- (1) In the case of a claim for benefits denied or dismissed as described in paragraph (2), the Secretary of Veterans Affairs shall, upon the request of the claimant or on the Secretary's own motion, order the claim readjudicated under chapter 51 of such title, as amended by this Act, as if the denial or dismissal had not been made.

(2) A denial or dismissal described in this paragraph is a denial or dismissal of a claim for a benefit under the laws administered by the Secretary of Veterans Affairs that--

(A) became final during the period beginning on July 14, 1999, and ending on the date of the enactment of this Act; and

(B) was issued by the Secretary of Veterans Affairs or a court because the claim was not well grounded (as that term was used in section 5107(a) of title 38, United States Code, as in effect during that period).

(3) A claim may not be readjudicated under this subsection unless a request for readjudication is filed by the claimant, or a motion is made by the Secretary, not later than 2 years after the date of the enactment of this Act.

(4) In the absence of a timely request of a claimant under paragraph (3), nothing in this Act shall be construed as establishing a duty on the part of the Secretary of Veterans Affairs to locate and readjudicate a claim described in this subsection.

Speaker of the House of Representatives.

Vice President of the United States and

President of the Senate.

[Berta]

Interesting read-

Vet Orgs as well as the BVA itself have continued to identity the problems with the lack of proper VCAA Notices and the impact of that initial DTA reg violation as it continues to contribute to the backlog situation.

NO ONE is taking steps in DC to correct it.