tdiu Reopening due to New Evidence, new rules after March 24

[broncovet]

New Rules:

Section D. Reopened Claims

Overview

 

In This Section

This section contains the following topics:

 

Topic	Topic Name
1	Reopened Claims: The Importance of New and Material Evidence and Definition of Terms
2	Handling Claims to Reopen
3	Handling Newly Received Evidence
4	Determining an Effective Date and Handling a Denial

 

1. Reopened Claims: The Importance of New and Material Evidence and Definition of Terms

 

Introduction

This topic contains information on definitions of terms relating to reopened claims for service connection, including   the importance of new and material evidence for reopening a claim for service connection definition of reopened claim difference between a claim to reopen and a claim for reconsideration definition and examples of evidence, and definitions of new evidence and material evidence.

 

Change Date

July 15, 2015

 

a. Importance of New and Material Evidence for Reopening a Claim for Service Connection

New and material evidence is required before the Department of Veterans Affairs (VA) will reopen a finally denied claim for service connection for a particular disability.   Important: The threshold for reopening claims is low, see Shade v. Shinseki, 24 Vet. App. 110 (2010).   Reference: For more information on finality, new and material evidence, and reopening claims, see M21-1, Part III, Subpart iv, 2.B.

 

b. Definition: Reopened Claim

Use the table below for the definition of a reopened claim based on date of receipt of the claim.

 

Prior to March 24, 2015

Effective March 24, 2015

any application for a benefit received after final denial of an earlier claim, or any application based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the Board of Veterans’ Appeals (BVA) which was not considered by BVA in its decision, and was referred to the agency of original jurisdiction for consideration as provided in 38 CFR 20.1304(b)(1). (Authority: 38 U.S.C. 501(a))   Note: Before March 24, 2015, there was no requirement to use a VA form to reopen a claim.

an application for a benefit received after final denial of an earlier claim that is subject to readjudication on the merits based on receipt of new and material evidence related to the finally-adjudicated claim, or any claim based on additional evidence or a request for a personal hearing submitted more than 90 days following notification to the appellant of the certification of an appeal and transfer of applicable records to the BVA which was not considered by BVA in its decision, and was referred to the agency of original jurisdiction for consideration as provided in 38 CFR 20.1304(b)(1). (Authority: 38 U.S.C. 501(a))   Note: On or after March 24, 2015, a claim to reopen must be submitted on a prescribed form.

 

Notes: The term “reopened” does not apply to claims for reconsideration of a denied claim for pension an increased disability evaluation, or individual unemployability. Such claims involve the review of new evidence based on new applications, rather than the reopening of a prior decision that has become final. For this reason, they are referred to as “new” claims.   References: For more information on form requirements for claims to reopen, see M21-1, Part III, Subpart ii, 2.D.2.b reopened claims, see 38 CFR 3.160(e), and finally-adjudicated claims, see 38 CFR 3.160(d).

 

 

c. Difference Between a Claim to Reopen and a Claim for Reconsideration

A claim for reconsideration differs from a claim to reopen in that the decision at issue in a claim to reopen has become final.   Reference: For more information on reconsideration claims, see M21-1, Part III, Subpart ii, 2.F.

 

d. Definition and Examples: Evidence

Evidence is any means by which an alleged matter of fact is established or disproved.   Examples: Examples of evidence include testimony, to include statements contentions, and arguments documentary proof medical examinations or reports, and other material not previously considered.

 

e. Definitions: New Evidence and Material Evidence

New evidence   is evidence not previously of record, and is neither cumulative nor redundant.   Material evidence   is relevant evidence that, when considered by itself or considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim has a legitimate influence or bearing on the decision in the case, and is neither cumulative nor redundant.   Notes: The provisions of 38 CFR 3.105(b) do not apply if a decision is changed because of the receipt of new and material evidence. The misapplication of, or failure to apply, a statutory or regulatory evidentiary presumption in a prior final decision cannot, in itself, constitute “new and material evidence” within the meaning of 38 U.S.C Section 5108 for purposes of reopening a claim. For more information, see VAOPGCPREC 38-97.   Reference: For more information on new and material evidence, see 38 CFR 3.156 Shade v. Shinseki, 24 Vet. App. 110 (2010), and M21-1 Part III, Subpart iv, 2.B.3.

 

2. Handling Claims to Reopen

 

Introduction

This topic contains information on handling claims to reopen a finally denied claim, including   general policy on screening newly received material form requirements for claims to reopen handling claims to reopen a finally denied claim identifying duplicate claims, and handling duplicate claims.

 

Change Date

March 24, 2015

 

a. General Policy on Screening Newly Received Material

Carefully screen all newly received material to determine whether authorization or the rating activity is responsible for making a new decision.   Reference: For more information on handling newly received evidence, see M21-1, Part III, Subpart ii, 2.D.3.

 

b. Form Requirements for Claims to Reopen

Use the table below to determine which forms are required for claims to reopen.

 

If the claim was received …	Then ...
prior to March 24, 2015	there is no requirement to use a VA form.
on or after March 24, 2015	the claim must be submitted on a prescribed form. VA encourages the use of VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, which provides the claimant with the requirements to successfully reopen a claim.

 

Note: If a claimant does not use a prescribed form on or after March 24, 2015, consider the correspondence a request for application.   Reference: For additional information about handling a request for application, see M21-1, Part III, Subpart ii, 2.C.

 

c. Handling Claims to Reopen a Finally Denied Claim

A claim to reopen is defined by a claimant using the prescribed form to request a readjudication of a finally denied claim for any benefits. Upon receipt of a claim to reopen,   place the claim under end product (EP) control, and undertake any necessary development.   Important: “Necessary development” may include assisting the claimant in obtaining records in the custody of a Federal department or agency, as well as privately-held records. However, VA is under no obligation to provide a VA examination unless or until the previously finally denied claim is successfully reopened, and a VA examination is deemed necessary. There is no need to provide case-specific Section 5103 notice to a claimant when he/she is attempting to reopen a previously denied claim.  The generic paragraphs on VA Form 21-526EZ describing what the evidence must show in order to establish direct service connection and reopen a previously denied claim, are sufficient, as is the generic Section 5103 that the following applications generate: Modern Awards Processing – Development (MAP-D) the Veterans Benefits Management System (VBMS), and Veterans Online Application (VONAPP) Direct Connect (VDC).   References: For more information about VA’s duty to assist claimants in obtaining evidence, see 38 CFR 3.159(c), or the holding by the Court of Appeals for the Federal Circuit that the requirement in 38 U.S.C. 5103(a)(1) is satisfied by generic notice, see Wilson v. Mansfield, 506 F.3d 1055 (2007), and Vazquez-Flores v. Shinseki, 508 F.3d 1270 (2009).

 

d. Identifying Duplicate Claims

Consider a claim a duplicate claim if the application   is for a benefit previously denied, and does not furnish new and material evidence.

 

e. Handling Duplicate Claims

Upon receipt of a duplicate claim   establish a pending issue control, and inform the claimant that he/she must submit new and material evidence in order to have the claim reopened.   References: For more information on actions to take if a claimant submits duplicate medical evidence, see M21-1, Part III, Subpart ii, 2.D.3.b handling a denial when new and material evidence has not been submitted, see M21-1, Part III, Subpart ii, 2.D.4.b situations in which a Veteran Service Representative (VSR) may deny a claim, see M21-1, Part III, Subpart ii, 7.1.b handling of denials of duplicate claims, see M21-1, Part III, Subpart v, 2.A.4.b handling of denials for failure to submit requested evidence, see M21-1, Part III, Subpart v, 2.A.4.a., and selection of an appropriate EP, see M21-4, Appendix B.

 

3. Handling Newly Received Evidence

 

Introduction

This topic contains information on handling newly received evidence, including   referring additional medical evidence to the rating activity actions to take if the claimant submits duplicate medical evidence handling supplemental service treatment records (STRs) VA hospital reports claimants’ statements, and affidavits and statements, and descriptions of symptoms as evidence.

 

Change Date

July 15, 2015

 

a. Referring Additional Medical Evidence to the Rating Activity

Refer additional medical evidence to the rating activity if   it does not duplicate the evidence already in the claims folder, or there is a question as to whether rating activity review is warranted.   Reference: For more information on handling additional records, see M21-1, Part III, Subpart iii, 2.B.

 

b. Actions to Take if the Claimant Submits Duplicate Medical Evidence

If the claimant submits duplicate medical records or reports, or any other duplicate evidence   date-stamp each page of the material to show the date of receipt by VA, and return all the materials to the claimant with a cover letter that advises him/her that the submitted material is a duplicate of material already in the claims folder, and summarizes what material is being returned.

 

c. Handling Supplemental STRs

When supplemental service treatment records (STRs) are received, an Intake Processing Center (IPC) VSR conducts an initial review of the documents with the claims folder. Supplemental STRs that are not duplicates must be reviewed by a Rating Veteran Service Representative (RVSR).   Reference: For more information about initial review of supplemental STRs and action taken on supplemental STRs, see M21-1, Part III.iii.2.B, and M21-1, III.iii.2.A.1.c.

 

d. Handling VA Hospital Reports

Promptly forward VA hospital reports to the rating activity.   Reference: For more information about hospital reports, see M21-1, Part III, Subpart v, 6.A.2, and M21-1, Part III, Subpart v, 6.A.4.

 

e. Handling Claimants’ Statements

Refer statements from claimants received prior to March 24, 2015, to the rating activity.   The rating activity will decide whether or not the statements constitute new and material evidence.   Statements from claimants received on or after March 24, 2015, will be reviewed to determine if they constitute a request for reconsideration, a reopened claim, or a request for application.   References: For more information about new and material evidence, see 38 CFR 3.156, and handling a request for application, see M21-1, Part III, Subpart ii, 2.D.

 

f. Handling Affidavits and Statements

Use the table below to determine how to handle affidavits and statements submitted by or on behalf of a Veteran and received prior to March 24, 2015.

 

If the affidavits or statements …	Then …
relate to a rating issue and raise a potential basis for reopening	refer the material to the rating activity for review and necessary action.
do not furnish a basis for reopening	fully inform the Veteran and his/her representative as to   why the evidence is deficient the specific type of evidence that is required, and the right to appeal.   Reference: For more information about certification requirements, see M21-1, Part III, Subpart iii, 1.B.7.

 

Important: Affidavits and statements submitted by or on behalf of a Veteran on or after March 24, 2015, will be reviewed to determine if they constitute a request for reconsideration, a reopened claim, or a request for application.

 

g. Descriptions of Symptoms as Evidence

A claimant’s own statement, covering in sufficient detail a condition that is within his/her ability to describe, such as his/her own symptoms, may to that extent constitute evidence.   Rationale: While such statements have self-serving aspects, the claimant is often the most qualified source to describe the circumstances of the disabling effects of the disease or injury. If such statements are new and material, received prior to March 24, 2015, and of sufficient probative value, they may serve as a basis for ordering a VA examination. If such statements are received on or after March 24, 2015, they will be considered a request for application.   Reference: For more information about requesting VA examinations, see M21-1, Part I, 1.C.3.b.

 

 

4. Determining an Effective Date and Handling a Denial

 

Introduction

This topic contains information on determining effective dates and handling denials of claims to reopen, including   general information on effective dates in reopened claims, and denying a claim when no new and material evidence is provided.

 

Change Date

February 16, 2012

 

a. General Information on Effective Dates in Reopened Claims

The effective date for the award of a reopened claim will be governed by either 38 CFR 3.400(q) or 38 CFR 3.400(r).   Reference: For more information on effective dates in reopened claims, see M21-1, Part III, Subpart iv, 2.B.3.k.

 

b. Denying a Claim When No New and Material Evidence Is Provided

If the claimant submits evidence that is not both new and material, send a denial letter indicating   that VA does not consider the claim reopened, and the reasons why the evidence is not new and material.   Note: Letters to claimants should not refer to a claim as “reopened” unless a claimant submits new and material evidence. Otherwise, it is a “claim to reopen.”

[Vync]

After reading this, I think I just learned how to repair my stereo...

[Navy04]

Thanks for the Info

[broncovet]

Broncovet's "shortened" version:

1.  If you want to reopen After March 24, 2015, you must use VA's "required" form.  There is no "reopen form" however, you can use:  VA Form 21-526EZ.  

2.  Important: The threshold for reopening claims is low, see Shade v. Shinseki, 24 Vet. App. 110 (2010).

3.  Note: Before March 24, 2015, there was no requirement to use a VA form to reopen a claim.   This means you may have  a reopened claim pending, if you submitted New Evidence.  This is important for your effective date.   For example: The effective date for the award of a reopened claim will be governed by either 38 CFR 3.400(q) or 38 CFR 3.400(r).

4.   Dont count on VA providing a (new) C and P exam for reopened claims.  They may or may not.  

5.  If VA does NOT reopen your claim OR give you reasons why it was not reopend, including a statement as to what evidence is needed to reopen, consider disputing the non reopening in your NOD.