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38cfr Sec. 3.105 Revision Of Decisions.
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allan
[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2008]
From the U.S. Government Printing Office via GPO Access
[CITE: 38CFR3.105]
[Page 180-182]
TITLE 38--PENSIONS, BONUSES, AND VETERANS' RELIEF
CHAPTER I--DEPARTMENT OF VETERANS AFFAIRS
PART 3_ADJUDICATION--Table of Contents
Subpart A_Pension, Compensation, and Dependency and Indemnity
Compensation
Sec. 3.105 Revision of decisions.
The provisions of this section apply except where an award was based
on an act of commission or omission by the payee, or with his or her
knowledge (Sec. 3.500(b)); there is a change in law or a Department of
Veterans Affairs issue, or a change in interpretation of law or a
Department of Veterans Affairs issue (Sec. 3.114); or the evidence
establishes that service connection was clearly illegal. The provisions
with respect to the date of discontinuance of benefits are applicable to
running awards. Where the award has been suspended, and it is determined
that no additional payments are in order, the award will be discontinued
effective date of last payment.
(a) Error. Previous determinations which are final and binding,
including decisions of service connection, degree of disability, age,
marriage, relationship, service, dependency, line of duty, and other
issues, will be accepted as correct in the absence of clear and
unmistakable error. Where evidence establishes such error, the prior
decision will be reversed or amended. For the purpose of authorizing
benefits, the rating or other adjudicative decision which constitutes a
reversal of a prior decision on the grounds of clear and unmistakable
error has the same effect as if the corrected decision had been made on
the date of the reversed decision. Except as provided in paragraphs (d)
and (e) of this section, where an award is reduced or discontinued
because of administrative error or error in judgment, the provisions of
Sec. 3.500(b)(2) will apply.
(b) Difference of opinion. Whenever an adjudicative agency is of the
opinion that a revision or an amendment of a previous decision is
warranted, a difference of opinion being involved rather than a clear
and unmistakable error, the proposed revision will be recommended to
Central Office. However, a decision may be revised under Sec. 3.2600
without being recommended to Central Office.
© Character of discharge. A determination as to character of
discharge or line of duty which would result in discontinued entitlement
is subject to the provisions of paragraph (d) of this section.
(d) Severance of service connection. Subject to the limitations
contained in Sec. Sec. 3.114 and 3.957, service connection will be
severed only where evidence establishes that it is clearly and
unmistakably erroneous (the burden of proof being upon the Government).
(Where service connection is severed because of a change in or
interpretation of a law or Department of Veterans Affairs issue, the
provisions of Sec. 3.114 are for application.) A change in diagnosis
may be accepted as a basis for severance action if the examining
physician or physicians or other proper medical authority certifies
that, in the light of all accumulated evidence, the diagnosis on which
service connection was predicated is clearly erroneous. This
certification must be accompanied by a summary of the facts, findings,
and reasons supporting the conclusion. When severance of service
connection is considered warranted, a rating proposing severance will be
prepared setting forth all material facts and reasons. The claimant will
be notified at his or her latest address of record of the contemplated
action and furnished detailed reasons therefor and will be given 60 days
for the presentation of additional evidence to show that service
connection should be maintained. Unless otherwise provided in paragraph
(i) of this section, if additional evidence is not received within that
period, final rating action will be taken and the award will be reduced
or discontinued, if in order, effective the last day of the month in
which a 60-day period from the date of notice to the beneficiary of the
final rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))
(e) Reduction in evaluation--compensation. Where the reduction in
evaluation
[[Page 181]]
of a service-connected disability or employability status is considered
warranted and the lower evaluation would result in a reduction or
discontinuance of compensation payments currently being made, a rating
proposing the reduction or discontinuance will be prepared setting forth
all material facts and reasons. The beneficiary will be notified at his
or her latest address of record of the contemplated action and furnished
detailed reasons therefor, and will be given 60 days for the
presentation of additional evidence to show that compensation payments
should be continued at their present level. Unless otherwise provided in
paragraph (i) of this section, if additional evidence is not received
within that period, final rating action will be taken and the award will
be reduced or discontinued effective the last day of the month in which
a 60-day period from the date of notice to the beneficiary of the final
rating action expires.
(Authority: 38 U.S.C. 5112(b)(6))
(f) Reduction in evaluation--pension. Where a change in disability
or employability warrants a reduction or discontinuance of pension
payments currently being made, a rating proposing the reduction or
discontinuance will be prepared setting forth all material facts and
reasons. The beneficiary will be notified at his or her latest address
of record of the contemplated action and furnished detailed reasons
therefor, and will be given 60 days for the presentation of additional
evidence to show that pension benefits should be continued at their
present level. Unless otherwise provided in paragraph (i) of this
section, if additional evidence is not received within that period,
final rating action will be taken and the award will be reduced or
discontinued effective the last day of the month in which the final
rating action is approved.
(Authority: 38 U.S.C. 5112(b)(5))
(g) Reduction in evaluation--monetary allowance under 38 U.S.C.
chapter 18 for certain individuals who are children of Vietnam veterans.
Where a reduction or discontinuance of a monetary allowance currently
being paid under 38 U.S.C. chapter 18 is considered warranted, VA will
notify the beneficiary at his or her latest address of record of the
proposed reduction, furnish detailed reasons therefor, and allow the
beneficiary 60 days to present additional evidence to show that the
monetary allowance should be continued at the present level. Unless
otherwise provided in paragraph (i) of this section, if VA does not
receive additional evidence within that period, it will take final
rating action and reduce the award effective the last day of the month
following 60 days from the date of notice to the beneficiary of the
proposed reduction.
(Authority: 38 U.S.C. 1822, 5112(b)(6))
(h) Other reductions/discontinuances. Except as otherwise specified
at Sec. 3.103(b)(3) of this part, where a reduction or discontinuance
of benefits is warranted by reason of information received concerning
income, net worth, dependency, or marital or other status, a proposal
for the reduction or discontinuance will be prepared setting forth all
material facts and reasons. The beneficiary will be notified at his or
her latest address of record of the contemplated action and furnished
detailed reasons therefor, and will be given 60 days for the
presentation of additional evidence to show that the benefits should be
continued at their present level. Unless otherwise provided in paragraph
(i) of this section, if additional evidence is not received within that
period, final adverse action will be taken and the award will be reduced
or discontinued effective as specified under the provisions of
Sec. Sec. 3.500 through 3.503 of this part.
(Authority: 38 U.S.C. 5112)
(i) Predetermination hearings. (1) In the advance written notice
concerning proposed actions under paragraphs (d) through (h) of this
section, the beneficiary will be informed that he or she will have an
opportunity for a predetermination hearing, provided that a request for
such a hearing is received by VA within 30 days from the date of the
notice. If a timely request is received, VA will notify the beneficiary
in writing of the time and place of the hearing at least 10 days in
advance of the scheduled hearing date. The 10 day
[[Page 182]]
advance notice may be waived by agreement between VA and the beneficiary
or representative. The hearing will be conducted by VA personnel who did
not participate in the proposed adverse action and who will bear the
decision-making responsibility. If a predetermination hearing is timely
requested, benefit payments shall be continued at the previously
established level pending a final determination concerning the proposed
action.
(2) Following the predetermination procedures specified in this
paragraph and paragraph (d), (e), (f), (g) or (h) of this section,
whichever is applicable, final action will be taken. If a
predetermination hearing was not requested or if the beneficiary failed
without good cause to report for a scheduled predetermination hearing,
the final action will be based solely upon the evidence of record.
Examples of good cause include, but are not limited to, the illness or
hospitalization of the claimant or beneficiary, death of an immediate
family member, etc. If a predetermination hearing was conducted, the
final action will be based on evidence and testimony adduced at the
hearing as well as the other evidence of record including any additional
evidence obtained following the hearing pursuant to necessary
development. Whether or not a predetermination hearing was conducted, a
written notice of the final action shall be issued to the beneficiary
and his or her representative, setting forth the reasons therefor and
the evidence upon which it is based. Where a reduction or discontinuance
of benefits is found warranted following consideration of any additional
evidence submitted, the effective date of such reduction or
discontinuance shall be as follows:
(i) Where reduction or discontinuance was proposed under the
provisions of paragraph (d) or (e) of this section, the effective date
of final action shall be the last day of the month in which a 60-day
period from the date of notice to the beneficiary of the final action
expires.
(ii) Where reduction or discontinuance was proposed under the
provisions of paragraphs (f) and (g) of this section, the effective date
of final action shall be the last day of the month in which such action
is approved.
(iii) Where reduction or discontinuance was proposed under the
provisions of paragraph (h) of this section, the effective date of final
action shall be as specified under the provisions of Sec. Sec. 3.500
through 3.503 of this part.
(Authority: 38 U.S.C. 5112)
Cross References: Effective dates. See Sec. 3.400. Reductions and
discontinuances. See Sec. 3.500. Protection; service connection. See
Sec. 3.957.
[26 FR 1569, Feb. 24, 1961, as amended at 27 FR 11886, Dec. 1, 1962; 39
FR 17222, May 14, 1974; 55 FR 13528, Apr. 11, 1990; 56 FR 65846, Dec.
19, 1991; 57 FR 56993, Dec. 2, 1992; 62 FR 51278, Sept. 30, 1997; 66 FR
21874, May 2, 2001; 67 FR 49586, July 31, 2002]
http://edocket.access.gpo.gov/cfr_2008/julqtr/38cfr3.105.htm
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