Section E. Other Due Process Concerns

allan · April 16, 2007

Overview

In this Section This section contains the following topics:

Topic Topic Name See Page

16 Failure to Report for Examination Under 38 CFR 3.655 8-E-2

17 Severance of Service Connection 8-E-5

18 Reversal of Prior Determinations Related to Character of Discharge, Line of Duty, or Willful Misconduct. 8-E-9

16. Failure to Report for Examination Under 38 CFR 3.655

Introduction This topic contains information about handling a failure to

• report for examination

 with good cause

 without good cause

 by a veteran receiving pension, and

• respond to a notice of proposed adverse action.

Change Date August 1, 2006

a. Handling Failure to Report to Examination With Good Cause A veteran may fail to report for a VA examination, or a scheduled hospitalization for observation and examination, in connection with a running compensation or pension award. If he/she furnishes a good reason for missing the examination, defer adverse action and reschedule the examination.

Examples: Good cause for not reporting to an examination includes, but is not limited to

• illness or hospitalization of the claimant, or

• death of an immediate family member

Authorization notifies the veteran that failure to report for the rescheduled examination is cause for immediate termination or reduction of payment.

Reference: For information on a veteran’s refusal to report for examination because he/she claims to have submitted medical evidence adequate for rating purposes, see

• M21-1MR, Part III, Subpart iv, 3.B.15.e, and

• Kowalski v. Nicholson, No. 02-1284, June 8, 2005.

Continued on next page

16. Failure to Report for Examination Under 38 CFR 3.655, Continued

b. Handling Failure to Report for Examination Without Good Cause If a veteran fails to report for an examination without good cause, refer the claims folder to the rating activity for a review of static disabilities.

On the rating decision

• if there are

 no static disabilities, indicate in the Reasons for Decision “the veteran failed to report for a review examination and there are no static disabilities,” or

 static disabilities, provide in the Reasons for Decision the proposed new or continuing evaluations for all disabilities considered and the proposed combined evaluation, and

• do not enter the effective date of the proposed reduction or termination.

Note: Static disabilities include disabilities

• protected under 38 CFR 3.951(b) and 38 CFR 3.952, and

• for which no examination was scheduled or will be scheduled.

Reference: For more information on a veteran’s failure to report for an examination, see M21-1MR, Part III, Subpart iv, 3.B.15.e.

Continued on next page

16. Failure to Report for Examination Under 38 CFR 3.655, Continued

c. Handling Failure to Report for Examination by a Veteran Receiving Pension Use the table below if a veteran is rated permanently and totally disabled for pension purposes and fails to report for a scheduled review examination.

If … Then prepare a …

the veteran does not continue to be permanently and totally disabled “failure to report” rating and notice of proposed adverse action as required by M21-1MR, Part III, Subpart iv, 8.E.16.b.

the veteran remains permanently and totally disabled rating showing the disabilities at the static level.

Note: If there is no response within 60 days, the case is sent to authorization for appropriate action.

d. Handling Failure to Respond to the Notice of Proposed Adverse Action If the veteran fails to respond to the notice of proposed adverse action provided under M21-1MR, Part IV, Subpart ii, 3.B, authorization discontinues or reduces the veteran’s benefits in accordance with 38 CFR 3.655©(2).

After the award has been processed and the veteran has been informed of the action taken in the decision, prepare a rating decision for those cases in which there are static disabilities.

On the decision

• code all disabilities with their new, continuing and/or combined evaluations

• include noncompensable service-connected (SC) disabilities

• consider a compensable rating under 38 CFR 3.324, if applicable, and

• use the effective date the award was reduced as the effective date of the new combined evaluation based on static and/or protected disabilities.

17. Severance of Service Connection

Introduction This topic contains information about severance of service connection, such as

• applying 38 CFR 3.105(a) and 38 CFR 3.105(d)

• severing service connection due to diagnosis change

• severing service connection for a psychosis

• handling severance of service connection

• handling multiple issues

• handling increases in compensation

• preparing the final rating decision, and

• severance after veteran’s death.

Change Date August 1, 2006

a. Applying 38 CFR 3.105(a) and 38 CFR 3.105(d) Do not take action to sever service connection pursuant to 38 CFR 3.105(a) and 38 CFR 3.105(d) unless all available relevant evidence, including complete service medical data and autopsy findings (if pertinent in death cases)

• is of record, and

• shows that establishment was clearly and unmistakably erroneous.

Reference: For more information on the ten-year protection even when service connection is erroneous, see M21-1MR, Part III, Subpart iv, 8.C.9.

b. Severing Service Connection Due to Diagnosis Change A change in diagnosis may be accepted as a basis for severance if there is certification that the diagnosis on which service connection was based was clearly erroneous under 38 CFR 3.105(d).

Continued on next page

17. Severance of Service Connection, Continued

c. Severing Service Connection for a Psychosis If service connection is severed for a psychosis, make a determination of entitlement under 38 U.S.C. 1702.

d. Handling Severance of Service Connection The table below describes how to handle severing service connection.

Stage Who is Responsible Description

1 RVSR Refers all ratings proposing severance of service connection to the Veterans Service Center Manager (VSCM) for approval or disapproval under 38 CFR 3.105(a).

2 VSCM Is the rating approved?

• If yes

 signs the rating, and

 forwards the rating to authorization.

• If no

 clearly marks the rating disapproved

 signs the rating, and

 returns the rating to the rating activity.

3 RVSR • Revises the rating, if required, to reflect the current evaluation of all SC disabilities and disposing of all other matters at issue, and

• files the rating in the claims folder.

Note: Each regional office (RO) maintains a list of the names and claim numbers of all cases in which a monetary benefit or service connection is affected pursuant to 38 CFR 3.105(a).

Continued on next page

17. Severance of Service Connection, Continued

e. Handling Multiple Issues Prepare a single rating decision identifying both issues if a decision involves severance of service connection for one disability and a reduction of evaluation for another disability.

Notify the veteran concerning both the reduction and the proposed severance.

Reference: For more information on notifying the veteran of severance of service connection, see M21-1MR, Part IV, Subpart ii, 3.A.2.

f. Handling Increases in Compensation Award increased compensation if severance of service connection is proposed for one or more disabilities but one or more other disabilities have increased in severity.

Notify the veteran concerning

• the proposed severance action

• the increased evaluation, and

• any reduction that will result from the severance action.

g. Preparing the Final Rating Decision After the 60-day period of notice during which the claimant could have submitted additional evidence, the case is referred to the rating activity for preparation of the final rating severing service connection.

Include in the new combined SC evaluation only those evaluations for disabilities that remain SC.

Note: This will ensure that no retroactive increase or benefit attributable to the severed disability will be awarded after basic entitlement is terminated.

Refer the final rating severing service connection to the VSCM or VSCM-designee for approval only if new evidence has been received since the proposed decision was approved.

Reference: For more information on the effective date of the reduced evaluation after severance of service connection, see 38 CFR 3.500®.

Continued on next page

17. Severance of Service Connection, Continued

h. Severance After the Veteran’s Death Upon the veteran’s death

• discontinue all action on severance proposals not finalized, unless the severance would affect death benefits, or

• make a proposal to sever service connection only if such a proposal, if finalized, will result in entitlement to a lesser benefit or the complete disallowance of a claim for death benefits.

Notes:

• Proposals initiated but not finalized prior to notice of the veteran’s death, upon notice of the veteran’s death, will be reconsidered de novo taking into consideration all available new evidence, such as medical reports of last illness, death certificate, and autopsy report, if indicated.

• The claimant is notified of the severance proposal and given 60 days to submit further evidence, even though the veteran was given a prior 60-day notice.

18. Reversal of Prior Determinations Related to Character of Discharge, Line of Duty, or Willful Misconduct

Introduction This topic contains information about reversal of prior decisions, such as

• jurisdiction in clear and unmistakable error (CUE) cases that sever service connection

• preparing the rating decision, and

• handling cases of disagreement between authorization and rating.

Change Date August 1, 2006

a. Jurisdiction in CUE Cases That Sever Service Connection Prepare an administrative decision if the authorization activity, rather than the rating activity, has initial jurisdiction of a

• statutory bar to benefits and character-of-discharge determination under M21-1MR, Part III, Subpart v, 1.B

• line-of-duty determination under M21-1MR, Part III, Subpart v, 1.D.19, or

• willful misconduct determination under M21-1MR, Part III, Subpart v, 1.D

and finds that there is clear and unmistakable error (CUE) in a prior determination which will result in the severance of service connection.

Note: The decision must contain a summary of findings and a statement as to the specific CUE that was identified.

References: For more information on

• the preparation and approval of authorization determinations, see M21-1MR, Part III, Subpart v, 1.A.2, and

• CUE, see M21-1MR, Part IV, Subpart ii, 3.A.2.

b. Preparing the Rating Decision Refer the claims folder, if in order, to the rating activity for appropriate action including the preparation of a rating decision proposing the severance of service connection under 38 CFR 3.105© and 38 CFR 3.105(d) on the basis of the determination by the authorization activity.

Continued on next page

18. Reversal of Prior Determinations Related to Character of Discharge, Line of Duty, or Willful Misconduct, Continued

c. Handling Cases of Disagreement Refer the case by memorandum to the VSCM for resolution of an issue if the rating activity disagrees with the determination by the authorization activity as to character of discharge, line of duty, or willful misconduct.

################################################################

http://www.warms.vba.va.gov/admin21/m21_1/...8/ch08_sece.doc