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38 Cfr 3.103 Procedural Process And Appealants Rights See Part D In Blue



Hello All,

I have been noticing some old post and some new ones that seem to also show a problem that has come up with VA and the Adjudication Process. I believe most of us here have had problems with their Cfile and or VA decisions because of evidence the Veteran , THOUGHT was in his or hers Cfile and was not. Now here is a couple of things to think about. Most of us are in the process of "waiting" on a decision from the VARO. It has been recommended not only by many Veteran VSOs and Lawyers and Hadit members to not send any evidence to the VARO while the claim is waiting for a decision because of the go to the bottom of the wait list philosophy. Now here is where I see many problems that have developed with not just my claim but many others here. The amount of time to get from an NOD , appeal , notice to reconsider AFTER an initial decision is running about 2-3 years or longer to get another decision.

We see by the law listed below that a Veteran is suppose to have due process and that ALL evidence is suppose to be part of the claim. Here is where most of us run into a problem. What we have as evidence may not be there because of the time frame and the fact that the Regional Offices have a very bad habit of not having all of our evidence in the file or getting it to the Veteran.

I really don't want to dwell on Shreddergate , which does come to mind , but the amount of faulty decisions that end up being appealed, has a HUGE affect on the Decision Process. Hence the BACKLOG cannot ever go down. This issue is compounded because of the "go to the bottom of the pile" rule that VAROs go by. And because VA does not keep records as well as the Veteran(in most cases). Sooooo, evidence really cannot be sent in during the appeal process while a decision is being waited for. For me , I am in the wait mode on an NOD on some claims and on to the BVA on others. I have hundreds if not thousands of pages of evidence left to turn in. I am not alone. Almost every Veteran will run into this problem because of the process that is oh so familiar with all of us. Yes some Veterans claims are more simple , some not , but this particular law is far and away one of the biggest problems that STALLS a claim and requires the BVA or CAVA to get it right. Now we are talking of 8-12 years or longer..........I know that most of our Hadit folks can look at their own claim and see what I am talking about is exactly right and can relate to this.

So when I am talking about faulty decisions from VAROS and having an enormous error rate, it is really because the Veteran DOES NOT HAVE DUE PROCESS because of this little effort to not go to the bottom of the pile. And because there is a problem with how to submit evidence to be considered , DUE PROCESS is already jeopardized and now becomes a long wait. Therefore he or she may not be able to get all of the evidence in during the process. Just think of some of our Veterans who have made the mistake of turning in evidence ever so often during the decision process. Yes , the old saying that if its short and sweet the better, but some of us just have no choice because of security of military places and test or complexity of claims or secondary diseases or illnesses and so forth. I know some of our members will chime in on this one. Oh yes , I have waited almost a year for copies of my QTC ,C and P exams from Regional Office. How in the world can I effectively have due process to add to my evidence without those exam reports. And I also know that the C and P Examiner did not have ALL of the Progress reports because I showed him the Pulmonary Hypertension Progress Report and he said he did not have it. Just one part of the NO DUE PROCESS. See what I mean. Why didn't he have it??? It was suppose to be in the Record from the VAMC Medical Progress Reports. This might be a good class action suit for one of our great law groups concerning violation of due process for all Veterans. A Veteran must have a thick skin and patience and above all.....NEVER GIVE UP. God Bless, C.C.

§3.103 Procedural due process and appellate rights.

(a) Statement of policy. Every claimant has the right to written notice of the decision made on his or her claim, the right to a hearing, and the right of representation. Proceedings before VA are ex parte in nature, and it is the obligation of VA to assist a claimant in developing the facts pertinent to the claim and to render a decision which grants every benefit that can be supported in law while protecting the interests of the Government. The provisions of this section apply to all claims for benefits and relief, and decisions thereon, within the purview of this part 3.

(b) The right to notice:

(1) General. Claimants and their representatives are entitled to notice of any decision made by VA affecting the payment of benefits or the granting of relief. Such notice shall clearly set forth the decision made, any applicable effective date, the reason(s) for the decision, the right to a hearing on any issue involved in the claim, the right of representation and the right, as well as the necessary procedures and time limits, to initiate an appeal of the decision.

(2) Advance notice and opportunity for hearing. Except as otherwise provided in paragraph (b)(3) of this section, no award of compensation, pension or dependency and indemnity compensation shall be terminated, reduced or otherwise adversely affected unless the beneficiary has been notified of such adverse action and has been provided a period of 60 days in which to submit evidence for the purpose of showing that the adverse action should not be taken.

(3) Exceptions. In lieu of advance notice and opportunity for a hearing, VA will send a written notice to the beneficiary or his or her fiduciary at the same time it takes an adverse action under the following circumstances:

(i) An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in §3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

(ii) An adverse action based upon the beneficiary’s or fiduciary’s failure to return a required eligibility verification report.

(iii) Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

(iv) An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see §3.106 on renouncement).

(v) An adverse action based upon a written statement provided to VA by a veteran indicating that he or she has returned to active service, the nature of that service, and the date of reentry into service, with the knowledge or notice that receipt of active service pay precludes concurrent receipt of VA compensation or pension (see §3.654 regarding active service pay).

(vi) An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a). (Authority: 38 U.S.C. 501(a))

(4) Restoration of benefits. VA will restore retroactively benefits that were reduced, terminated, or otherwise adversely affected based on oral information or statements if within 30 days of the date on which VA issues the notification of adverse action the beneficiary or his or her fiduciary asserts that the adverse action was based upon information or statements that were inaccurate or upon information that was not provided by the beneficiary or his or her fiduciary. This will not preclude VA from taking subsequent action that adversely affects benefits.

© The right to a hearing.

(1) Upon request, a claimant is entitled to a hearing at any time on any issue involved in a claim within the purview of part 3 of this chapter, subject to the limitations described in §20.1304 of this chapter with respect to hearings in claims which have been certified to the Board of Veterans' Appeals for appellate review. VA will provide the place of hearing in the VA office having original jurisdiction over the claim or at the VA office nearest the claimant's home having adjudicative functions, or, subject to available resources and solely at the option of VA, at any other VA facility or federal building at which suitable hearing facilities are available. VA will provide one or more employees who have original determinative authority of such issues to conduct the hearing and be responsible for establishment and preservation of the hearing record. Hearings in connection with proposed adverse actions and appeals shall be held before one or more VA employees having original determinative authority who did not participate in the proposed action or the decision being appealed. All expenses incurred by the claimant in connection with the hearing are the responsibility of the claimant.

(2) The purpose of a hearing is to permit the claimant to introduce into the record, in person, any available evidence which he or she considers material and any arguments or contentions with respect to the facts and applicable law which he or she may consider pertinent. All testimony will be under oath or affirmation. The claimant is entitled to produce witnesses, but the claimant and witnesses are expected to be present. The Veterans Benefits Administration will not normally schedule a hearing for the sole purpose of receiving argument from a representative. It is the responsibility of the VA employee or employees conducting the hearings to explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant’s position. To assure clarity and completeness of the hearing record, questions which are directed to the claimant and to witnesses are to be framed to explore fully the basis for claimed entitlement rather than with an intent to refute evidence or to discredit testimony. In cases in which the nature, origin, or degree of disability is in issue, the claimant may request visual examination by a physician designated by VA and the physician’s observations will be read into the record. (Authority: 38 U.S.C. 501(a))

"""" (d) Submission of evidence. Any evidence whether documentary, testimonial, or in other form, offered by the claimant in support of a claim and any issue a claimant may raise and any contention or argument a claimant may offer with respect thereto are to be included in the records.""""

(e) The right to representation. Subject to the provisions of §§14.626 through 14.637 of this title, claimants are entitled to representation of their choice at every stage in the prosecution of a claim.

(f) Notification of decisions. The claimant or beneficiary and his or her representative will be notified in writing of decisions affecting the payment of benefits or granting relief. All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing subject to paragraph © of this section; the right to initiate an appeal by filing a Notice of Disagreement which will entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected (See part 20 of this chapter, on appeals). Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered. (Authority: 38 U.S.C. 501, 1115, 1506, 5104)

[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 2, 1992; 58 FR 16359, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 2001; 76 FR 52574, Aug. 23, 2011; 77FR 23129, Apr. 18, 2012]

Supplement Highlights references: 7(2), 9(3), 10(2), 10(3), 48(1), 97(1), 101(1).

3.103 Procedural due process and appellate rights

Edited by Capt.Contaminate (see edit history)
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HELLO ALL,,,,,, I am bumping this in response to important new programs being incorporated into the new PAPERLESS process the VA is so high on. You can use it while also reading my post on the new Ebenefits link under Actions column for Preparation for decision........ the NEW UPLOAD EVIDENCE button to send VA any documents or evidence. ...... I also think it is time for us ALL to start writing the Congress and the OIG of this new problem and make them very aware of it so the next set of House and Senate hearings can pick up on it before it gets to far down the road. NEVER GIVE UP. God Bless, C.C.

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I too have seen that advise here and elsewhere , that seems to suggest not to send in more evidence during the claims process.

I disagree but everyone can do as they wish.

When we get a decision and the Evidence list from VA does NOT reflect probative evidence we have sent...I suggest to ask them to CUE themselves right away. I have posted how to do that recently here with a template of my current' Go Cue Yourself VA ' claim.

If a veteran acquires probative evidence during the appeal period,in my opinion, it is Mandatory to get that stuff to the VA.

Mail it, FAx it to them, Iris them that you have sent it, etc etc to make sure they have it as it could turn things around for you.

If the case is at the BVA, I made sure the BVA had my most probative evidence , and although it was a pain in the butt to copy it all, I am glad I did.

The VA many times, during my long claims processess, made sure that my most important evidence was missing.from my C file ...particularly with my FTCA case. Once I knew what the MF (mysterious force employed by my VARO ) had removed from my file, the General Counsel turned around in a heartbeat and talked settlement.

I am referring only to PROBATIVE Evidence.

Documented proof positive evidence.

Evidence so strong that, even if it was the sole evidence you have, it would turn the decision around.

Often vets send in way too much .....stuff that really has no bearing on their claims.

I dont like to argue with others on some stuff here so this is just my opinion.

If you have additional probative evidence SEND IT IN.Use a 21-4138 as a cover letter.

If you dont, and you need to file a NOA with the CAVC at some point, due to a BVA denial;then you can only hope for a joint remand to get that evidence before the VA.

In my Shreddergate testimony to the House Vet Affairs Committee ,available at the VA web site, I took note that VARO had lost or removed my husband's 6 page autopsy at least 12 TIMES .

The letter I wrote to the Sec ,(they used as testimony) which was hand delivered to him ,had three pages of colorful USPS receipts all stacked up ,with VA address and dates visible, so he could see how many times I had sent evidence to the VA that the MF tampered with.

It is a violation of 38 CFR for the VA to ignore our probative evidence. The key word however is Probative.

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  • HadIt.com Elder

Due process for us vets means that the VA has to consider each and every piece of evidence in the vet's file before they can make a decision. At least until the last ten years the VA often did not list or consider all the evidence in a vet's file. Even crucial evidence like IMO's and private medical records were ignored. Evidence was changed and altered. Phil Cushman's case in federal court established that the vet had a property right that required due process when filing a claim.

The VA is supposed to do a SSOC every time you send them evidence while your claim is in the appeals process. They have never done this for me. I send new evidence right up to the last day if I think it is important. What about submitting new evidence at a DRO Hearing? Does this mean your claim goes to the bottom of the pile again? I think from my experience that if you have evidence you should try and get that in your record by any and all means while your claim is waiting for a decision.


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Hello John and Berta,,,,,,

Due Process and the probative evidence is such a bad joke. VAROs just never get it right and sometimes the BVA is not either , which means CAVC may be the last leg to stand on. Though the report I posted is suppose to be followed by the VA, it obviously is not and requires due diligence.

Berta and John, I believe that this thought of not turning in evidence because of the bottom of the pile issue,,,,,,,well its now probably to the point it really doesn't matter . I mean the VAROs are so backlogged and as one of our members just posted today is now over 1200 days for an appeal so I don't think it matters anymore...... Just send in anything you can as fast as you can and hope they get it. Thanks for your work with our Veterans and NEVER GIVE UP. God Bless, C.C.

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