Latest Revision M21-1mr, Pt Iv, Sp Ii, C3, Sec B.

[wallyg]

Section B. Failure to Report for Review Examination

Overview

In this Section This section contains the following topics:

5 General Information on Handling a Veteran’s Failure to Report for a Scheduled Review Examination 3-B-2

6 Rating Activity Action After a Veteran Fails to Report for a Scheduled Review Examination 3-B-5

7 Award Action Taken After a Veteran Fails to Report for a Review Examination 3-B-12

5. General Information on Handling a Veteran’s Failure to Report for a Scheduled Review Examination

Introduction This topic contains information on handling a veteran’s failure to report for a scheduled review examination. It includes information on the required discontinuation or reduction of payments purpose and elements of a VA disability examination

initial review of returned mail, and action to take after attempting to locate a better address.

Change Date December 13, 2005

a. Required Discontinuation or Reduction of Payments When a current examination is needed to confirm a veteran’s continued entitlement to disability benefits, and the veteran, without adequate reason, fails to report for the examination, the Department of Veterans Affairs (VA) is required under 38 CFR 3.655 to

discontinue payment for the disability(ies) for which the examination was scheduled, or reduce payment for the disability(ies) for which the examination was scheduled to a minimum evaluation established under 38 CFR Part 4, or lower protected evaluation under 38 CFR 3.951(B).

Note: Reduction or discontinuation of payments under 38 CFR 3.655© is not required if the evidence of record is sufficient to justify continuation of a current disability evaluation.

Reference: For information on handling a veteran’s failure to report for an examination scheduled in connection with an original or reopened claim or a claim for increase, see

M21-1MR, Part III, Subpart iv, 8.E.16, and 38 CFR 3.655(B).

b. Purpose and Elements of a VA Disability Examination A VA disability examination is necessary to determine whether or not a claimed disability actually exists and its functional effects on the veteran.

The examination report typically consists of a medical history, physical and/or mental assessment and laboratory tests to ascertain the state of health of the veteran.

Note: An examination may also include periods of hospital observation.

c. Review of Returned Mail Notifying the Veteran of a Scheduled Examination If a VA medical facility advises that mail notifying a veteran of a scheduled VA examination has been returned because the Postal Service reported the letter was undeliverable at the address provided, review the claims folder and Benefits Delivery Network (BDN) to determine whether

the mail was erroneously addressed

a more recent address is of record, or

a valid address is available from non-VA sources, such as the Internet or telephone directory assistance.

Notes:

VA is authorized to use the Internet address locator service ChoicePoint to obtain current address information for claimants.

If the veteran receives VA benefits via direct deposit/electronic funds transfer (DD/EFT), send a letter to the veteran’s financial institution (FI) asking for a current mailing address.

References: For

information on obtaining an address via ChoicePoint, see Fast Letter 05-07, and

sample language for the letter to the FI, see M21-1MR, Part X, 8.5.

d. Action Taken After Attempting to Locate a Better Address Use the table below to determine the action to take after attempting to locate a better address.

If a better address is … Then …

Identified provide the new address to the VA medical facility

request that the VA medical facility

reschedule the examination, and

notify the veteran at the new address of the pending examination, and

update

the pending issue file (PIF) (which also updates BDN and the master record), and

SHARE/Modern Awards Processing-Development (MAP-D).

not identified take the action shown in

M21-1MR, Part IV, Subpart ii, 3.B.6.e, and

M21-1MR, Part IV, Subpart ii, 3.B.6.f.

6. Rating Activity Action After a Veteran Fails to Report for a Scheduled Review Examination

Introduction This topic contains information on rating activity action after a veteran fails to report for a scheduled review examination. It includes information on

referring cases to the rating activity

the preparation of a “Failure to Report” rating

the definition of static disability

the general action taken when a veteran fails to report for an examination

notifying the veteran of a “Failure to Report” rating without static disabilities or protected evaluations

the notice of proposed adverse action when the veteran has non-static and static disabilities or protected evaluations

action to take when the veteran is ready to report for an examination

considering good cause for not reporting for an examination

the action to take if a veteran requests a hearing

the action to take if the veteran fails to respond to a “Failure to Report” rating proposing termination of compensation payments, and

the action to take when the veteran fails to respond to a “Failure to Report” rating proposing a reduction in compensation.

Change Date December 13, 2005

a. Referring Cases to the Rating Activity Promptly refer any notice that a veteran failed to report for a scheduled examination to the rating activity except when a better address is found, as described in M21-1MR, Part IV, Subpart ii, 3.B.5.d.

Based on the evidence of record, the rating activity will either

prepare a rating proposing to reduce the evaluation, or

make a formal final decision on this issue.

b. Preparation of a “Failure to Report” Rating The rating activity prepares a “Failure to Report” rating if a veteran fails to report for a scheduled VA examination without good cause.

VA’s precise course of action depends on the nature of the remaining disabilities.

No remaining static disabilities = proposal to terminate.

Remaining static disabilities = proposal to reduce.

Notes:

If the veteran has no static disabilities or protected evaluations, then the rating will propose reduction of the evaluation assigned to the disability(ies) for which the review examination was scheduled to the minimum or noncompensable level. In the Reasons for Decision section of the rating decision, state that “The veteran failed to report for a review examination and there are no static disabilities.”

If the veteran has other static disabilities or protected evaluations, then reduce the evaluation of the disability(ies) for which the review examination was scheduled and pay compensation based on the combined evaluation of all disabilities.

c. Definition: Static Disability A 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 the disability has improved.

d. General Action Taken When a Veteran Fails to Report for an Examination If the rating activity determines that the evidence of record is insufficient to justify continuation of a current disability evaluation because a veteran failed to report for an examination

the rating activity prepares a rating proposing a reduced evaluation, possibly to a noncompensable level, and

the authorization activity

clears (PCLR) an end product (EP) 310, using the date that the examination request was issued as the date of claim

establishes EP 600 with a suspense date 65 days from the date notice of the proposed reduction is sent to the veteran

sends the veteran a notice of proposed adverse action under 38 CFR 3.103(B), and

continues current payments.

e. Notification of a “Failure to Report” Rating Without Static Disabilities or Protected Evaluations If the rating activity prepares a “Failure to Report” rating and there are no static disabilities or protected evaluations, send the veteran a notice of proposed adverse action

advising that VA must stop compensation payments because he/she did not report for the scheduled examination and the evidence of record is not sufficient to justify continued entitlement

including the proposed stop date, which is no earlier than the first day of the month 60 days after the veteran is notified of the proposed adverse action

furnishing due process rights, and

asking the veteran to respond promptly if he/she is now ready to report for the examination.

f. Notice of Proposed Adverse Action When the Veteran Has Non-Static and Static Disabilities or Protected Evaluations If a rating proposes a reduced evaluation for one or more non-static disabilities, but the veteran also has one or more static disabilities or protected evaluations, send a notice of proposed adverse action to the veteran

advising that VA intends to reduce compensation payments to the rate payable for the static or protected disabilities because he/she failed to report for the scheduled examination of non-static disabilities

listing the non-static disabilities and each static disability or disability with a protected evaluation with the corresponding evaluation and the proposed new combined evaluation

providing the proposed effective date of reduction, which is no earlier than the first day of the month, 60 days after the veteran is notified of the proposed adverse action

including information about due process rights, and

asking the veteran respond promptly if he/she is now ready to report for the examination.

g. Action to Take When the Veteran Is Ready to Report for an Examination If notice is received that the veteran is willing to report for an examination before the award is reduced or suspended

continue the EP 600

defer adjustment of the award

refer the case for preparation of a new examination request, and

notify the veteran that

the examination will be rescheduled, and

if he/she again fails to report for the examination, benefit payments will be reduced or suspended immediately.

If the veteran fails to report for the rescheduled examination

suspend the veteran’s award if there are no static disabilities and/or protected evaluations, or

reduce to the rate payable for the static evaluations, and

furnish contemporaneous notice of the action taken to the veteran.

Reference: For information on contemporaneous notices, see M21-1MR, Part I, 2.D.

h. Considering Good Cause for Not Reporting for an Examination If a claimant furnishes a good cause for having reporting for a required examination

the rating activity

defers rating action, and

refers the case for preparation of a new examination request, and

the authorization activity notifies the veteran that failure to report for the rescheduled examination is cause for immediate termination or reduction of payment

Notes:

Examples of reasons considered good cause include

illness or hospitalization of the claimant, and

death of a family member.

Do not consider as good cause a veteran’s failure to report for an examination because VA did not permit the veteran to record the examination or be accompanied by legal. The law does not provide the veteran with such rights.

i. Action to Take If a Veteran Requests a Hearing The notice of proposed adverse action advises the veteran of the right to request a hearing before the adverse action is taken.

If the veteran’s request for a hearing is received within 30 days of the date of the notice of proposed adverse action

continue the end product, and

do not adjust the veteran’s award until either

the hearing is held, any evidence requested as a result of the hearing is received or deemed unobtainable, and a final decision is made, or

the veteran fails to appear for the hearing without good cause.

j. Action to Take If the Veteran Fails to Respond to a “Failure to Report” Rating Proposing Termination of Compensation Payments Use the information below to determine the action to take if the veteran fails to respond to notification of a “Failure to Report” rating, proposing termination of compensation payments because no static disabilities or disabilities with protected evaluations exist.

If … Then …

the veteran has not responded within 60 days of the date he/she was notified of the proposed adverse action suspend the award using reason code 17, and

send a final notice to the veteran that includes procedural and appellate rights.

Note: Unless there is justification for resuming benefits, process a stop action once the suspension has been in effect six months, per M21-1MR, Part IV, Subpart ii, 3.B.6.e.

the notice of proposed adverse action is returned because

the Postal Service reports the mail cannot be delivered, and

a better address cannot be obtained take action as described above, and

send the final notice to the last known address.

the notice of proposed adverse action is returned, but the correct address is subsequently identified send another notice of proposed adverse action to the new address

cancel the pending EP 600, and

establish an EP 601 using the date of the notice as the new date of claim.

Reference: For more information on determining where to send the notice of proposed adverse action, see M21-1MR, Part I, 2.B.6.b.

k. Action to Take When the Veteran Fails to Respond to a “Failure to Report” Rating Proposing a Reduction in Compensation Payments Use the information below to determine the action to take if the veteran fails to respond to a “Failure to Report” rating, proposing a reduction of compensation payments because static disabilities and/or disabilities with protected evaluations exist.

If the … Then …

the veteran has not responded within 60 days of the date he/she was notified of the proposed adverse action reduce the award effective the date indicated in the notice of proposed adverse action, or the date of last payment, whichever is later under 38 CFR 3.655©(2).

notice of proposed adverse action is returned because

the Postal Service reports that the mail cannot be delivered, and

the correct address cannot be obtained take action as described above, and

send final notification to the last known address.

the notice of proposed adverse action is returned, but the correct address is subsequently identified send another notice of proposed adverse action to the new address

cancel the pending EP 600, and

establish an EP 601 using the date of the notice as the new date of claim.

Reference: For more information on determining where to send the notice of proposed adverse action, see M21-1MR, Part I, 2.B.6.b.

7. Award Action Taken After a Veteran Fails to Report for a Review Examination

Introduction This topic contains information on award action to take after a veteran fails to report for a review examination. It includes information on

when to adjust payments

when to refer the claims folder to the rating activity

handling

reductions in the combined evaluation

military retired pay cases

awards that have been suspended for six months

abandoned claims, and

other special situations.

Change Date December 13, 2005

a. When to Adjust Payments Make all adjustments, that are required because of a veteran’s failure to report for a scheduled examination, effective on a future date. This rule applies even if the regional office loses control of the issue and payments are continued beyond the normal due process period.

Important: Do not create an overpayment solely because a veteran failed to report for a scheduled examination.

b. When to Refer the Claims Folder to the Rating Activity After a reduction has been processed and the veteran has been informed of the action taken, promptly refer the folder to the rating activity for the preparation of a rating that lists all disabilities with their new, continuing, and combined evaluations.

c. Handling a Reduction in the Combined Evaluation Normally, the new combined evaluation is the same as that shown in the initial “Failure to Report” rating.

However, if the rating activity proposes to reduce the combined evaluation lower than the level originally proposed, send another notice of proposed adverse action before reducing the award based on the new combined evaluation. In this case,

reduce the award as indicated in the original notice of proposed adverse action, and

send another notice of proposed adverse action informing the veteran of the proposed additional reduction.

d. Handling Military Retired Pay Cases If the veteran receives military retired pay, action to suspend or stop compensation payments generates a notice to the appropriate service department retired pay center. The service department adjusts the veteran’s military retired pay accordingly.

If the veteran later reports for the examination and compensation payments are resumed or increased, follow the procedures in M21-1, Part III, Subpart v, 5 (TBD) or M21-1, Part IV, Chapter 21 concerning awards involving military retired pay.

e. Handling Awards in Suspense for Six Months VA Form 20-6560, Notice of Benefit Payment Transaction, with message code 615, “Account in Suspense Six Months or More,” generates after a veteran’s award has been suspended for six months due to failure to report for a scheduled examination.

If the veteran does not indicate a willingness to report for the examination, or object to the suspension of the payments,

stop the award the date the benefits were last paid, using reason code 17, without further notice to the veteran, and

take no EP credit for this action since the final EP taken when initially suspending the award includes credit for this action.

f. Handling Abandoned Claims Under 38 CFR 3.158(B), a veteran who, without adequate reason, fails to report for a scheduled examination within one year of the date he/she was notified of the request gives up the right to benefits based on the claim involved.

Use the table below to determine how to handle different situations involving potential abandoned claims.

If the veteran … Then …

indicated a willingness to report for a rescheduled examination but did not report consider the claim abandoned one year from the date of the rescheduled examination.

does not indicate a willingness to report for a rescheduled examination consider the claim abandoned one year from the date the original examination was to have been conducted.

abandons his/her claim, based on a failure to report for an examination, then subsequently submits a new claim and reports for an examination under 38 CFR 3.655(f), award benefits (if entitlement is found) from the date of receipt of the new claim, if the veteran reports for the newly scheduled examination within one year of the date of notice to report.

g. Handling Other Special Situations For information on handling the failure of

a claimant to prosecute a claim, see M21-1, Part V, 10.03

an incompetent veteran to report for an examination, see M21-1, Part III, Subpart v, 9.B.4 (TBD) or M21-1, Part IV, 17.19.

Edited January 9, 2006 by wallyg

[Guest Berta]

Walter=THANK YOU- I have a vet who is helping a vet with the problem of failing to report in the past-

He is getting SC now- yet lost it then- it was my understanding that the VA gives 60 days after the failure for the vet to re-schedule-

and that the VA would have to consider extenuating circumstances- like hospitalization of the vet or a death in family?

Walter -do you have a date on this Revision? OH Never Mind-I found it --- Dec 2005-

The vet I mentioned -that C & P was in 1980----

still- this is a big help -THANKS!!!!!