Expidited Claims--waiver Of Review By Aoj

[allan]

Expidited Claims--Waiver of Review by AOJ

Consideration of Evidence Submitted

After Statement of Case

Under current laws and regulations,

claimants have the right to have the AOJ

consider evidence submitted or received

after issuance of an SOC. 38 U.S.C.

7104(a). Claimants also have the right to

issuance of a Supplemental Statement of

the Case (SSOC) if there are material

changes in, or additions to, the

information in the SOC or any prior

SSOC. 38 U.S.C. 7104(a), 7105(d); 38

CFR 19.9(a), (b)(3), 19.31, 19.37, 20.800,

20.903(b) and 20.1304©. As prescribed

in proposed § 20.1508(b)(2), if ECA

participants or their representative

submit additional evidence after the

SOC is issued, and continue to pursue

their appeal by filing a timely

Substantive Appeal, they are deemed to

have waived their right to initial review

of this evidence by the AOJ, including

readjudication of their claim and

issuance of any required SSOC. Rather,

as an ECA participant, they will agree to

have any such evidence reviewed by the

Board in the first instance. In agreeing

to this waiver by virtue of electing to

participate in the Initiative, claimants

would acknowledge that their claim

may be granted or denied based on the

Board’s consideration of this new

evidence in the first instance. By

executing an ECA Agreement with their

representatives, ECA participants would

essentially be offering such waiver at

the outset of the claims process. Because

participants and their representatives

are already aware of the evidence they

are submitting, an additional waiver of

AOJ review of such evidence, outside of

that waiver already contained in the

ECA Agreement, would be unnecessary.

If, however, VA obtains new relevant

evidence in an appeal that was not

submitted by the participant or his or

her authorized representative, under

proposed § 20.1508(b)(1) VA would

provide a copy of the new evidence to

the participant and his or her

representative and solicit from the

appellant a waiver of AOJ review of the

new evidence pursuant to the

procedures outlined in § 20.1304©. In

other words, unlike evidence submitted

by the appellant or representative, AOJ

review of evidence obtained by VA

would not be automatically waived by

virtue of the execution of an ECA

Agreement. Rather, VA would actively

solicit a waiver of AOJ review of such

evidence, as such waiver would not be

inherent in ECA participation. If the

appellant declines to provide a waiver

at that time, his or her participation in

the Initiative would end. The claim

would then be processed using ordinary

and established procedures under the

rights afforded under current statutes

and regulations applicable from that

point forward.

http://www1.va.gov/orpm/docs/20080416_AM77...djudication.pdf