tdiu The Complexity Of Trying To Establish What The Va Wants

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Goodmorning VET'S

My purpose of this Thread is to better hope those Vets in accords to the M21-1MR reports mandated by this date. I hope this is helpful To WE all.

20. Handling Claims to Reopen

Introduction This topic contains information on handling claims to reopen a finally denied claim. It includes information on

• the general policy for screening newly received material

• previously filed claims

• handling correspondence

• identifying duplicate claims, and

• handling duplicate claims.

Change Date November 15, 2004

a. General Policy on Screening Newly Received Material Carefully screen all newly received material to determine whether authorization or the rating activity is responsible for making a new decision.

b. Previously Filed Claims If a claimant has already filed VA Form 21-526, Veteran’s Application for Compensation or Pension, he/she does not need to file another formal claim.

However, VA Form 21-526 may be used as the best means of obtaining all the necessary information in some claims for increase or reconsideration.

c. Handling Correspondence Correspondence from a claimant asking for reconsideration for service connection is a claim to reopen.

Upon receipt of correspondence from a claimant asking for reconsideration

• establish a control under M21-1MR, Part III, Subpart ii, 1, and

• refer the claim for necessary development.

Note: Effective dates are governed by 38 CFR 3.400(q).

d. Identifying Duplicate Claims Consider a claim a duplicate claim if the application

• is based on the same conditions for which a prior claim for service connection was denied, and

• does not furnish new and material evidence.

e. Handling Duplicate Claims Upon receipt of a duplicate claim

• establish a pending issue control, and

• inform the claimant that he/she must submit new and material evidence in order to have the claim reconsidered.

b. Definition: Reopened Claim A reopened claim is any claim for service connection, received after a finally denied claim, which VA must reconsider because the evidence it presents is new and material. A finally denied claim means that at least one year has elapsed since the letter was sent notifying the claimant of the decision to deny the benefit sought.

Note: The term “reopened” does not apply to pension, increased ratings, or individual unemployability. Those claims involve the review of new evidence based on new applications, rather than reconsideration of prior decisions. For this reason, they are “new” claims.

Reference: For more information on reopened claims, see 38 CFR 3.160(e).

c. Definition: Evidence Evidence is any means by which an alleged matter of fact is established or disproved.

Examples: Examples of evidence include the following:

• testimony, to include

? statements

? contentions, and

? arguments

• documentary proof

• medical examinations or reports, and

• other material not previously considered.

b. Actions to Take If the Claimant Submits Duplicate Medical Evidence If the claimant submits duplicate medical records or reports, or any other duplicate evidence

• date-stamp each page of the material to show the date of receipt by VA, and

• return all the materials to the claimant with a cover letter that

? advises him/her that the submitted material is a duplicate of material already in the folder, and

? summarizes what material is being returned.

Sample Language: “Enclosed are eight pages of medical evidence submitted by you that were received by VA on 3/29/93. The evidence, covering your hospitalization at General Hospital for the period 6/17/72 to 6/23/72, is a duplicate of evidence already in file, and has, therefore, already been considered.”

g. Descriptions of Symptoms A claimant’s own statement, covering in sufficient detail a condition that is within his/her ability to describe, such as his/her own symptoms, may to that extent constitute evidence.

Rationale:

• While such statements have self-serving aspects, the claimant is often the most qualified source to describe the circumstances of the disabling effects of the disease or injury.

• If such statements are new and material and of sufficient probative value, they may serve as a basis for ordering a VA examination.

Reference: For more information about VA examinations, see M21-1MR, Part III, Subpart iv, 3.A.11 (TBD) or M21-1, Part VI, 1.01c.

b. Denying a Claim When No New and Material Evidence Is Provided If the claimant submits evidence that is not both new and material, send a denial letter indicating

• that VA does not consider the claim reopened, and

• the reasons why the evidence is not new and material.

Note: Letters to claimants should not refer to a claim as “reopened” unless a claimant submits new and material evidence. Otherwise, it is a “claim to reopen.”

22. Determining an Effective Date and Handling a Denial

Introduction This topic contains information on determining effective dates and handling denials of claims to reopen. It includes information on

• the date of receipt of a claimant’s statement as an effective date, and

• denying a claim when no new and material evidence is provided.

Change Date November 15, 2004

a. Date of Receipt of a Claimant’s Statement as an Effective Date The date of receipt of statements from the claimant that are held to be new and material evidence may constitute an effective date for increased benefits under 38 CFR 3.400(q).

b. Denying a Claim When No New and Material Evidence Is Provided If the claimant submits evidence that is not both new and material, send a denial letter indicating

• that VA does not consider the claim reopened, and

• the reasons why the evidence is not new and material.

Note: Letters to claimants should not refer to a claim as “reopened” unless a claimant submits new and material evidence. Otherwise, it is a “claim to reopen.”

INFORMAL CLAIMS (CONSIDERATE NEW IF YOU DIDN'T RECEIVE ADJUDICATION PAST OR PRESENT);

Change Date October 5, 2005

a. Characteristics of an Informal Claim Identify an informal claim by any of the following characteristics:

• any communication or action that shows an intent to apply for benefits under laws administered by the Department of Veterans Affairs (VA)

• an original claim not filed on the prescribed form

• an unsigned application (except for those claims received via the Veterans On-Line Application (VONAPP))

• evidence of examination or hospitalization in a VA or uniformed services health care facility, or

• any communication regarding the death of the appellant in an appeal

 submitted to the United States Court of Appeals for Veterans Claims (CAVC), and

 furnished to the VA by CAVC.

Reference: For more information on communication regarding the death of an appellant, see De Landicho v. Brown, 7 Vet. App. 42 (1994).

b. Handling an Unsigned Application Follow the steps in the table below to handle an unsigned application.

Step Action

1 Upon receipt of an unsigned application, make a copy for the file.

2 • Return the application to the claimant, and

• advise the claimant to

 sign the application, and

 return the application within one year of VA’s request, in order to retain entitlement from the original date VA received the unsigned form.

Note: See M21-1MR, Part III, Subpart ii, Chapter 1, Section A.3.c for information about processing unsigned VONAPP applications.

d. Identification of Benefits Sought If the claimant did not initiate an original claim under 38 CFR 3.160, the communication or action must identify the benefit he/she seeks, per 38 CFR 3.155.

Note: Once a formal claim for pension or service connection has been granted, receipt of evidence from any of the following sources is considered an informal claim:

• medical facilities operated by VA or the uniformed services

• private physicians or laymen, and

• State and other institutions. 38 CFR 3.157(;).

16. Claims Not Filed on the Prescribed Form and Claims Made by Telephone

b. Claims Made by Telephone Consider a claim made by telephone an informal claim.

Example: A telephone call from a claimant or a claimant’s fiduciary indicating an intent to apply for benefits, documented on VA Form 119, Report of Contact, is acceptable as an informal claim for the purpose of establishing a date of claim.

Follow the steps in the table below to handle a claim made by telephone.

Step Action

1 Verify the identity of the person providing the information by telephone by asking for the person’s

• Social Security number (SSN)

• date of birth, or

• any other information that might help to establish identity.

Note: If the person is unable to furnish this information, or if the person’s identity remains uncertain, complete development by letter.

Reference: For more information about handling a claim by telephone, see M21-1MR, Part II, 3.B.5 (TBD) and M21-1MR, Part II, 5.A (TBD)or M21-1, Part III, Chapter 11.18.

2 If the information source is a claimant’s fiduciary, confirm that a fiduciary agreement

• is of record, and

• establishes that person’s authority to speak on behalf of the claimant.

3 • Send the prescribed application form to the claimant or fiduciary, and

• advise him/her that VA must receive the application within one year of the phone call for the claimant to receive benefits.

17. Incomplete Applications and Lost Claims

Change Date October 5, 2005

a. Identifying an Incomplete Application Consider an application incomplete if it is signed but the claimant has not provided all the information described in 38 CFR 3.159(a)(3).

b. Handling an Incomplete Application Follow the steps in the table below to handle an incomplete application.

Step Action

1 • Make a copy of the application, and

• retain it as the file copy.

2 Check in red the incomplete items on the original application.

3 • Return the original application to the claimant, and

• ask the claimant to

 complete the checked items, and

 return the application with any other required evidence.

Note: If additional evidence could be relevant to the claim, ask the claimant to submit this additional evidence with the application. For example, if the claimant indicated medical treatment for a disability, ask him/her to submit the treatment records and provide the claimant with VA Form 21-4142, Authorization for Release of Information, for completion.

Note: If possible, request any required information by telephone before returning the application to the claimant. Return the application only if the information cannot be obtained by telephone. If there is any doubt as to validity, request documents rather than verbal information.

c. Identifying a Lost Claim Identify lost claims through review of diaries in the

• pending issue file (PIF) on the Work in Process (WIPP) report, and

• Modern Award Processing-Development (MAP-D) system.

Consider a claim lost if there is a record of the claim in PIF or the MAP-D system, but no paperwork associated with it.

d. Handling a Lost Claim Follow the steps in the table below to handle a lost claim.

Step Action

1 Ask the employee having knowledge of the facts, including the date the last claim was received, to prepare a signed statement for the file.

2 Ask the employee’s supervisor to sign the statement.

3 Forward another application or form to the claimant with a letter of explanation.

4 When the new claim is received, establish the effective date of the duplicate claim based on the date of receipt of the lost claim.

18. Claims Based on Reports of Examination or Hospitalization

NOW THIS CHAPTER IS VERY VERY IMPORTANT YOU ALL, BECAUSE IF YOU DO AN C&P EXAMINATION AND YOU GET A "NEW" DIANOSIS(EVEN THO THE EXAM WAS FOR ONLY WHAT WAS APPOINTED BY THE RO) FROM THE ONE THE MILITARY GAVE YOU IN SERVICE LIKE CHRONIC MECHINCAL LOW BACK PAIN THAN THE C&P EXAMINTOR SAY CHRONIC LOW BACK PAIN OF THE MUSCLEICOUIL REGION. THAT IS CONSIDER "NEW AND MATERIAL".

Change Date November 15, 2004

a. Background Veterans who are admitted to uniformed services hospitals are asked if they ever filed a claim for compensation or pension with VA.

If the veteran has ever filed a claim for compensation or pension, the hospital

• completes VA Form 21-8358, Notice to Department of Veterans Affairs of Admission to Uniformed Services Hospital, and

• sends one copy of the form to the regional office (RO) having custody of the veteran’s claims folder.

Notes:

• If the RO having custody of the veteran’s claims folder is unknown, the hospital will send a copy of VA Form 21-8358 to the nearest RO.

• Hospitals will not send notification of outpatient treatment and admissions that are solely for the purpose of examination.

b. Identification of a Claim Evidence of examination or hospitalization in a VA or uniformed services health care facility is an informal claim for

• an increased evaluation of a condition that was previously service-connected (SC), or

• a reopened claim for pension that was previously denied because the disability was not permanently and totally disabling.

Note: A notice of hospitalization may not suffice as an informal claim if a veteran that is SC for one disability is hospitalized for a different disability for which service connection has not been granted.

Reference: For more information on uniformed services medical facilities, see

• M21-1MR, Part III, Subpart ii, 2.D.18.c, and

• M21-1MR, Part III, Subpart iii, 1.C (TBD) or M21-1, Part IV, Chapter 6.10 through 6.13.

c. Action to Take on Receipt of VA Form 21-8358 If a completed VA Form 21-8358 is received from a uniformed services hospital

• review it with the claims folder, and

• request hospital reports or other information on VA Form 21-8359, Information Re Veteran in Uniformed Services Hospital or Dispensary, if any of the following apply:

 a formal claim for pension or compensation is pending or has been allowed

 a formal claim for pension was denied because the disability was not permanently and totally disabling

 a formal claim for compensation was denied because the service-connected disability was not compensable in degree, or

 in the case of a retired member of a uniformed service, a formal claim for pension or compensation has been denied because of receipt of retirement pay.

If any of the above do not apply, file the VA Form 21-8358 in the claims folder.

d. Establishing a Claim Per 38 CFR 3.400(o), the effective date of an increase in compensation can be the earliest date on which the evidence shows that an increase in disability has occurred, if a claim is received within one year of this date.

Follow the steps in the table below if the VA medical evidence shows treatment for

• an SC disability, or

• manifestations of the SC disability.

Step Action

1 Accept the date of admission for treatment for an SC disability as the date of claim for increased evaluation.

2 Establish and maintain control of the claim.

e. Accepting Evidence Follow the steps in the table below to accept evidence for a claim that

• specifies the benefit sought, and

• is received within one year of treatment.

Step Action

1 Accept evidence of examination or hospitalization at a VA or uniformed services health care facility as an informal claim.

2 Liberally interpret reasonable probability of a valid claim.

3 If there is the probability of a valid claim, refer the claim for development.

4 Establish and maintain control of the claim.

c. Cumulative Evidence Evidence is merely cumulative and is not to be considered new evidence if it

• reinforces a previously well-established point

• provides additional details to support previous statements, or

• rehashes previously submitted statements.

If it is determined that the evidence submitted by, or on behalf of, the claimant is … Then …

new and material • reopen the claim, and

• review all the evidence of record before making another decision.

not both new and material prepare a decision that

• confirms the previous decision, and

• indicates that the claim is not considered to have been successfully reopened.

Important: The decision must explain the reason for the continued denial and why the submitted evidence is not considered to be new and material.

d. Presuming the Evidence to be Credible When determining whether new and material evidence has been submitted to justify reopening a claim, presume the new evidence to be credible.

Note: Once a claim has been reopened, the presumption of the credibility of the evidence no longer applies, and the evidence must be weighed.

Reference: For more information on credible evidence, see

• Hayes v. Brown, 7 Vet. App. 420 (1995), and

• Justus v. Principi, 3 Vet. App. 510 (1992).

d. Identifying a CUE A CUE exists if

• there is an error that is undebatable so that it can be said that reasonable minds could only conclude that the previous decision was fatally flawed at the time it was made

• Department of Veterans Affairs (VA) failed to follow a procedural directive that involved a substantive rule

• VA overlooked material facts of record, or

• VA failed to apply or incorrectly applied the appropriate laws or regulations.

Note: If the claimant contends that VA’s failure to follow a procedural directive determined the outcome of the claim, contact the Compensation and Pension (C&P) Service for advice on any rule-making arguments that may have been advanced.

References: For more information on

• CUE, see 38 CFR 3.105(a)

• potential errors in following procedures, see Allin v. Brown, 6 Vet. App. 207 (1994), and

• CUEs based on VA’s constructive notice of medical records, see

 VAOPGCPREC 12-95, and

 M21-1MR, Part III, Subpart iv, 1.3.