38cfr Sec. 3.105 Revision Of Decisions.

[allan 10]

[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

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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]

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