Veteranclaims’s Blog

March 15, 2009

Appeals Process M21-1, Part IV Chapter 8

Filed under: Certification worksheet, Chapter 8, M21-1, Part IV — veteranclaims @ 2:52 am

The Appeals Process is covered mostly in Chapter 8 of M21-1, Part IV. So if you are trying to figure out anything regarding the appeal process this is a good place to start.

One item that caught our eye is the ‘Certification Worksheet’, this seems as though it could give a veteran a lot of information concerning their claim and what the RO did or did not do right, see EXHIBIT B APPEAL CERTIFICATION WORKSHEET

Appeal Certification Worksheet
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Veterans Benefits Administration M21-1, Part IV
Department of Veterans Affairs Change 192
Washington, DC 20420 February 26, 2004

Veterans Benefits Administration Manual, M21-1, Part IV, “Authorization Procedures,” is changed as follows:

Pages 8-i and 8-ii: Remove these pages and substitute pages 8-i and 8-ii attached.

Pages 8-X-1 and 8-X-3: Remove these pages and substitute pages 8-X-1 and 8-X-3 attached.

Paragraph 8.36 c(2)(b) is updated to show that the Fiduciary Program Staff is 216 not 211.

Paragraph 8.37 a (1) is revised to show that the worksheet in Exhibit B must be completed prior to certification of any appeal to BVA.

Pages 8-E-3 through 8-E-9: Remove these pages and substitute pages 8-E-3 through 8-E-7 attached.

Exhibit B is amended to include specific reference to Duty to Assist (VCAA) and make miscellaneous editorial changes.

Page 12-i: Remove this page and substitute page 12-i attached.

Pages 12-I-13 through Pages 12-I-17: Remove these pages and substitute pages 12-I-13 through 12-I-18 attached.

Paragraph 12.12(a) is revised to show retention of certain veterans’ survivor benefits for surviving spouses remarrying on or after age 57 (Public Law 108-183).

Pages 36-II-3 through 36-II-4: Remove these pages and substitute pages 36-II-3 through 36-II-4.

Paragraph 36.11b is revised to show additional offenses which are considered subversive activities for claims filed after December 16, 2003 (Public Law 108-183).

Paragraphs 36.11a and 36.12 are updated to replace the term District Counsel with Regional Counsel.

Paragraphs 36.11a and 36.14 are updated to replace references to Central Office (213B) and (211C) with Central Office (211B).

By Direction of the Under Secretary for Benefits

Ronald J. Henke, Director
Compensation and Pension Service

Distribution: RPC 2150
FD

February 26, 2004 M21-1, Part IV
Change 192
CHAPTER 8. APPEALS

CONTENTS

PARAGRAPH PAGE

SUBCHAPTER I. OVERVIEW OF APPELLATE PROCESSING

8.01 Jurisdiction 8-I-1
8.02 Review 8-I-1
8.03 Notice of Right to Appeal 8-I-1
8.04 Procedures 8-I-1

SUBCHAPTER II. NOTICE OF DISAGREEMENT (NOD)

8.05 General 8-II-1
8.06 Time Limits on Submission of NOD 8-II-2
8.07 Development or Review Action 8-II-2
8.08 Veterans Appeals Control and Locator System (VACOLS) 8-II-4

SUBCHAPTER III. STATEMENT OF THE CASE (SOC)

8.09 SOC Preparation 8-III-1
8.10 Furnishing SOC to Claimant and Representative 8-III-2
8.11 Matters Not to be Disclosed in the SOC 8-III-3

SUBCHAPTER IV. SUPPLEMENTAL STATEMENT OF THE CASE (SSOC)

8.12 When an SSOC is Prepared 8-IV-1
8.13 Transmitting the SSOC 8-IV-1
8.14 Response to SSOC 8-IV-1

SUBCHAPTER V. SUBSTANTIVE APPEAL

8.15 Furnishing VA Form 9 8-V-1
8.16 Requirement of Substantive Appeal 8-V-2
8.17 Substantive Appeal Procedure 8-V-2
8.18 New Issues Raised on Substantive Appeal 8-V-2
8.19 Hearings 8-V-3

SUBCHAPTER VI. DOCKETING OF APPEALS

8.20 General 8-VI-1
8.21 Receipt of Substantive Appeal 8-VI-1
8.22 The Substantive Appeal 8-VI-1
8.23 Control of Pending Appeals 8-VI-1
8.24 Notification by the BVA 8-VI-1
8.25 Review of the Substantive Appeal 8-VI-2
8.26 Advanced Motion in Emergent Situations 8-VI-2
8.27 Evidence Received Prior to Transfer to BVA 8-VI-2

8-i

M21-1, Part IV February 26, 2004
Change 192

SUBCHAPTER VII. ADMINISTRATIVE APPEALS AND MERGED APPEALS

8.28 Authority 8-VII-1

SUBCHAPTER VIII. VA FORM 646, STATEMENT OF ACCREDITED
REPRESENTATIVE IN APPEALED CASE

8.29 General 8-VIII-1
8.30 Completion of VA Form 646 8-VIII-1
8.31 Action on Failure of Representative to Submit VA Form 646 8-VIII-1
8.32 Review of VA Form 646 8-VIII-1

SUBCHAPTER IX. WITHDRAWAL OF APPEALS

8.33 Appeals Considered Resolved on Basis of Grant of Benefits Sought 8-IX-1
8.34 Withdrawal of Appeal 8-IX-1
8.35 Reactivation of Appeals Subsequent to Withdrawal 8-IX-1

SUBCHAPTER X. CERTIFICATION OF APPEALS

8.36 Responsibility for Certification 8-X-1
8.37 Certification of Appellate Cases to BVA 8-X-2
8.38 Deferred Certification and Transfer of Case to BVA 8-X-3
8.39 Forwarding of Claims Folder to the BVA 8-X-3
8.40 Evidence, Request for Hearing, or Change of Representative Received after
Certification and Transfer 8-X-3

SUBCHAPTER XI. BVA DECISIONS

8.41 Appellate Decisions 8-XI-1
8.42 Effective Dates of BVA Grants of Benefits 8-XI-1

SUBCHAPTER XII. BVA REMANDS

8.43 Remands 8-XII-1
8.44 Special Procedures for BVA Remands 8-XII-1
8.45 Remanded Appeals Resolved at the Regional Office 8-XII-3

SUBCHAPTER XIII. APPEALS AFTER DEATH

8.46 Appeals Pending at Death or Initiated After Death 8-XIII-1

APPENDIX A

A.1 Acronyms and Forms Used in Chapter 8 8-A-1

EXHIBITS

A. Board of Veterans’ Appeals Points of Contact 8-E-1
B. Appeal Certification Worksheet 8-E-3
C. BVA Docket Notification Letter 8-E-6
D. Appeal Case Returned to BVA After Remand Notification Letter 8-E-7
8-ii

February 26, 2004 M21-1, Part IV
Change 192

SUBCHAPTER X. CERTIFICATION OF APPEALS

8.36 RESPONSIBILITY FOR CERTIFICATION

a. Appeals From Authorization or Rating Decisions

(1) Authorization Decisions. Certification of substantive appeals from authorization decisions will be made to the BVA by the DRO or VSCM’s designee. These include decisions made at the request of other activities or non-VA agencies. Appeals from authorization determinations made under 38 U.S.C. Chapter 35, Survivors and Dependents’ Educational Assistance, such as relationship, will be certified by the DRO or VSCM’s designee in the office having possession (permanent or temporary) of the claims folder.

(2) Rating Decisions. Certification of substantive appeals from rating decisions will be made to the BVA by the DRO or VSCM’s designee. These include appeals made from adverse rating decisions under 38 U.S.C. Chapter 35, Survivors and Dependents’ Educational Assistance.

Note: Appeals from determinations by a VA regional office or insurance center will be certified by that activity.

b. Appeals Based on Opinions of Regional Counsel or General Counsel

(1) New and Material Evidence Not Submitted. Except as provided in subparagraph c(2) below, when an appeal is initiated as a result of a determination based on an opinion of the Regional Counsel or General Counsel and no new and material evidence is submitted, the Veterans Service Center will prepare the SOC. The DRO or VSCM’s designee will certify the appeal to the BVA.

(2) New and Material Evidence Submitted. If new and material evidence is received in connection with an NOD based on the Regional Counsel’s opinion, refer the folder to the Regional Counsel for reconsideration and preparation of the SOC, where applicable. The Veterans Service Center will release the SOC and will also certify the substantive appeal. In any case in which a General Counsel opinion was the basis for the determination, transfer the case to Central Office (211C), citing this paragraph as the reason for transfer. The Compensation and Pension Service will refer the case to the General Counsel for reconsideration and preparation of an SOC, if necessary, and will then return the case to the regional office of jurisdiction. If an appeal is subsequently received, forward the claims folder to the Compensation and Pension Service (211C) for certification of the appeal to the BVA.

c. Incompetent Institutionalized Veterans-Estate Over $1,500

(1) Appeals Certified by the Veterans Service Center. The Veterans Service Center will be responsible for notifying claimants and representatives of determinations and certification of appeals involving the following issues:

(a) The amount of an award to a dependent parent based on recommendation of the Veterans Service Center Manager (VSCM) or designee.

(b) The amount specified by the VSCM or designee to a chief officer of a non-VA institution for the care and maintenance of the veteran.

(c) A disallowance to a parent because dependency is not shown or relationship to the veteran is not established.

Note: In appeals in cases under subparagraphs (a) and (b) above, an NOD with the determination of need of the parent or adequacy of the amount for care and maintenance will be forwarded to the VSCM. The VSCM or his/her designee will furnish the claimant an SOC. If a substantive appeal is filed, the VSCM or his/her designee will complete a memorandum for the file showing the appeal was reviewed and no change in the decision was warranted.
8-X-1

M21-1, Part IV February 26, 2004
Change 192

(2) Appeals Certified by VSCM. The VSCM or his/her designee will be responsible for processing (including preparing the SOC) and certifying appeals by:

(a) A parent determined not to be in need or whose needs are to be met from the veteran’s estate or PFOP and no payments or partial payments will be made for support from appropriated funds.

(b) The veteran’s fiduciary when it is determined that no amount for the care and maintenance of the veteran in a non-VA hospital is payable from appropriated funds. Note: If a parent is dissatisfied with the VSCM’s or his/her designee’s determination as to the amount to be paid from PFOP, forward the case with a statement of all the facts to the Fiduciary Program Staff (216) for an administrative review. Cite this paragraph.

d. Administrative Appeals. No certification is necessary in an administrative appeal unless merged with an appeal by the claimant. See paragraph 8.28.

e. Forfeiture Decisions. See chapter 36.

f. Clothing Allowance. See chapter 25.

g. Automobiles and Adaptive Equipment. See chapter 23.

h. Specially Adapted Housing. See chapter 23.

i. CHAMPVA. See chapter 23

j. Special Allowance-Sec. 1312a. See chapter 33.

k. VAMC Appeals. The DRO or VSCM designee will certify the appeals.

8.37 CERTIFICATION OF APPELLATE CASES TO BVA

a. Completion of VA Form 8

(1) Certify appeals to the BVA on VA Form 8. The responsible official of the office having authority over the issue claimed (par. 8.37) will complete VA Form 8 in its entirety. In the Veterans Service Center this will be the DRO or the VSCM’s designee of a senior official. Note: See Exhibit B for a sample certification worksheet to be completed at the time of certification. This worksheet must be completed prior to certification of any appeal to BVA.

(2) Prepare an extra copy of the VA Form 8 to be retained in the Veterans Service Center. Refer to this copy in the event additional evidence or information is received which necessitates a determination of disposition. In addition, retain a copy of the latest rating decision, the latest award letter, and any other pertinent documents which may be needed to adjudicate any new or supplemental claims while the claims folder is temporarily transferred to BVA.

(3) The certification should cite only the issue(s) on appeal. In cases in which service connection has been denied for a number of conditions and the claimant has only appealed service connection for one, certify only that issue.

4) After having been furnished an SOC or SSOC, if the claimant enlarges the appeal to include additional issues, certify all related issues on the appeal to the BVA. See paragraph 8.18.
8-X-2
February 26, 2004 M21-1, Part IV
Change 192

b. Notice to Appellant of Certification. Use FL 1-26 to advise the claimant that the appeal has been certified and transferred to the BVA. Do not use the letter generated by the Benefits Delivery Network (BDN). Prepare copies of the form letter for the representative and other interested persons, if any. Ensure that a copy of that letter is in the claims folder when it is forwarded to the BVA. If a hearing before the BVA in Washington, DC has been requested, add the statement: “You will be advised by the Board concerning your request for a hearing.” Note: If the claimant’s address is not known, the appeal must still be forwarded to the BVA as receipt of the VA Form 9 places it under BVA jurisdiction. Send the FL 1-26 to the last known address.

c. Processing Certification. After VA Form 8 has been signed by the DRO or VSCM’s designee, all correspondence released and VACOLS updated, route the claims folder for transfer to BVA.

8.38 DEFERRED CERTIFICATION AND TRANSFER OF CASE TO BVA

In any case in which final action is delayed to permit the submission of additional evidence, do not certify an appeal until the expiration of the period for submission of the evidence. See paragraph 8.07.

8.39 FORWARDING OF CLAIMS FOLDER TO THE BVA

Consideration of appeals involves studying all evidence available relating to the issue presented. Forward to the BVA the claims folder and all other records relating to the issue on appeal in the custody of the originating office.

8.40 EVIDENCE, REQUEST FOR HEARING, OR CHANGE OF REPRESENTATIVE RECEIVED AFTER CERTIFICATION AND TRANSFER

a. Evidence Received After Transfer of Case to the BVA

(1) If additional evidence is received after the claims folder has been transferred, forward it to the BVA if it has a direct bearing on an issue before the BVA. Obtain a waiver of consideration by the regional office from the claimant. Review the copy of the VA Form 8 that has been retained in the Veterans Service Center to determine the relationship of the evidence to the issue under BVA review. While there is a time limit for submission of such evidence, the BVA will determine if it was timely received. See 38 CFR 20.1304.

(2) If the evidence does not relate to the issue before the BVA but action is required, information needed from the claims file may be obtained by calling or faxing the appropriate BVA team or by requesting temporary return of the claims folder as stated in paragraph 5. See exhibit A for BVA points of contact.

(3) If the return of the claims folder is essential for adjudication of a claim unrelated to the appeal issue, request return of the claims folder from BVA. Prepare a request which includes the appellant’s name, claim number and reason for requesting the claims folder. The request should be directed to the Office of the Director of BVA Administrative Service (014). The request(s) can be sent by FAX or electronic mail (BVA RO MAIL). The FAX number is (202) 565-6364. The Director’s office will determine whether the claims folder may be returned to the regional office. If the BVA cannot return the folder immediately, written notification will be sent with the anticipated date of return.

(4) Despite the fact the claimant’s folder is before the BVA, any newly received unrelated claim must be placed under control and must be acted on as soon as possible. The Court of Appeals for Veterans Claims has stated that undue delay on new claims will not be tolerated. (See Ebert v. Brown, 4 Vet. App. 434 (1993).)

b. Change of Address Received After Certification or Transfer of Case to the BVA. If a change of address is received after certification or transfer to BVA, refer the claim for VACOLS input. 8-X-3

February 26, 2004 M21-1, Part IV
Change 192
Exhibits
EXHIBIT B
APPEAL CERTIFICATION WORKSHEET

Name of Veteran:__________________________________ Claim #: _________________
Name of Appellant (if other than veteran):________________________________________
Representative: _____________________________________________________________
Date of Decision on Appeal: ___________________Date of Notification: ______________
Issue(s) on Appeal: __________________________________________________________
__________________________________________________________________________

Notice of DisagreementNOTICE OF DISAGREEMENT Yes No N/A
Was the NOD submitted timely?
Were the issues clearly defined?
Were new issues raised?
Was the DRO election letter sent?
Was the DRO process elected?

Evidence/Duty to Assist and Inform Yes No N/A
Did we send the Duty to Assist/Inform (VCAA) letter? Did we inform appellant of the specific information/evidence needed to substantiate the claim? Did we inform appellant of the information/evidence we have and/or will obtain and the information/evidence s/he must submit?
Is all service verified?
Do we have complete SMRs?
Have we obtained all identified VA treatment records?
Have we obtained or received a negative response for ALL identified/pertinent records in our constructive custody?
Have we obtained all identified records not in our constructive custody or informed the appellant of our inability to obtain them and given him/her the appropriate time to submit this evidence?
Did we complete proper development for the specific benefit(s) claimed?
Was a nexus opinion requested if necessary?

8-E-3

M21-1, Part IV February 26, 2004
Change 192
Exhibits

Examination ReportsTICE OF DISAGREEMENT Yes No N/A
Were all issues addressed on examination report?
Did examiner(s) review claims folder?
Did the examination report provide information required by the Clinician’s Guide and Rating Schedule (ROM, x-rays, lab tests)?
Was a clear diagnosis for condition(s) provided?
If conflicting or multiple diagnoses exist, did examiner explain basis of current diagnosis?
Were all specific examination instructions/requests fulfilled?
Were all requested medical opinions (with rationale) provided?
Did the examiner address functional loss due to pain (if applicable)?
For psychiatric conditions, was a GAF score provided?
Did opinions regarding secondary service connection address causation and aggravation?
If the examination report was insufficient for rating purposes, was it returned for correction and satisfactory information provided?
If veteran failed to report for exam, is documentation of record?

SOC/SSOC/DecisionNOCE OF DISAGREEMENT Yes No N/A
Does the decision address all issues on appeal?
Does the decision clearly explain the basis for the denial of any benefit sought (i.e. are the reasons and bases adequate)?
Was all pertinent evidence discussed, to include the appellant’s contentions?
If applicable, was relevant testimony from a hearing discussed?
Did we apply the benefit of the doubt rule?
Was any alleged error addressed?
Did we apply all pertinent new legislation, regulations, and Court precedent decisions (e.g., VCAA, changes to Rating Schedule)?
Did we provide all pertinent laws/regulations?

NOTE: If an appeal is received on a new issue, the new appeal must be processed concurrently
with the pending appeal (an SOC must be sent prior to certification) to avoid a Manlincon remand.

Substantive Appeal (Form 9) Yes No N/A
Was VA Form 9 or equivalent filed timely and entered into VACOLS?
Was a BVA hearing requested and the case placed on the Travel Board or videoconference docket?
Was a DRO or other local hearing requested?
Was the DRO or other local hearing held (and transcript in file) or otherwise resolved through cancellation or failure to report?
Was additional evidence indicated or provided?
Was additional evidence properly developed and considered?
8-E-4

February 26, 2004 M21-1, Part IV
Change 192
Exhibits
VA Form 646 (for VSOs, not Private Attorneys) Yes No N/A
Did appellant’s representative submit VA Form 646?
Were new issues raised?
Were new issues adequately addressed?
Was a subsequent 646 completed when necessary?

Decision NotificationNOCE OF DISAGREEMENT Yes No N/A
Did we comply with all due process requirements?
Was appellant notified of all decisions?
Was appellant notified of the 90-day rule? (38 CFR 20.1304)
Was appellant’s representative kept fully informed?
Was decision notification sent to the last address of record?

Were any deficiencies noted in this review process? If so, identify. ______________________________

__________________________________________________________________________________________

__________________________________________________________________________________________

What actions are needed to perfect appeal? ____________________________________________________

__________________________________________________________________________________

__________________________________________________________________________________

Were any issues on appeal withdrawn? If so, identify. _____________________________________________

Have all new issues (non-appeal) raised during the appeal process been properly adjudicated or
addressed (temporary file created with needed information)? Yes __________ No ___________

Comments: __________________________________________________________________________________

____________________________________________________________________________________________

____________________________________________________________________________________________

Signature/Title of Reviewer: ________________________________ Date: ______________________

Approved by: ____________________________________________ Date: ______________________

8-E-5

M21-1, Part IV February 26, 2004
Change 192
Exhibits

EXHIBIT C

BVA DOCKET NOTIFICATION LETTER

Board of Veterans’ Appeals
Department of Veterans Affairs
Washington, DC 20420

In Reply Refer to: (0141E)

Dear Appellant:

The Board received notice of your appeal (VA Form 9). The law (38 U.S.C. 7107) requires that we consider appeals in the order in which we receive them. Right now, we are considering appeals received in [insert date].

The Board does not yet have claims folder or any other records having to do with your appeal. In view of the time it takes us to process an appeal, we believe it is better for you to have your claims folder kept at the local VA office where you filed your claim until we are ready to review it. That way, you have access to your records, and local VA officials will be able to act on any other claim you may have while your appeal is awaiting review by the Board.

When the Board is ready to review your appeal, we will request your records from the local VA office. At the time your records are forwarded to the Board, the local VA office will send you a letter notifying you of the transfer and informing you that you have 90 days to add evidence to your appeal, to request a hearing or to select or change a representative.

You have the right to appear in person for a hearing before a member of the Board, either at your local VA office or at the Board’s office in Washington, DC. In addition to this “Board hearing,” you also have the right to appear in person for a hearing before a local VA hearing officer. If you want a “local office hearing.” you should contact your local VA office.

Until we receive your claims folder at our office in Washington, DC, the Board can only provide very general information about your appeal. Our telephone number is (202) 565-5436. Until then, your best source for information about the status of your appeal is your local VA office or your representative.

We have enclosed two pamphlets. The thin pamphlet contains the customer service standards we have pledged to meet. Please make a note that the phone number printed on the back of the thin pamphlet has been changed to (202) 565-5436. The other pamphlet provides answers to the most commonly asked questions about how the appeal system works. We hope you find these pamphlets informative and helpful.

Sincerely yours,

Director, Administrative Service
By Direction of the Chairman
Enclosures (2)
8-E-6
February 26, 2004 M21-1, Part IV
Change 192
Exhibits

EXHIBIT D

APPEAL CASE RETURNED TO BVA
AFTER REMAND NOTIFICATION LETTER

Department of Veterans Affairs [DATE] [File Number]
[Designation of VA Office [Veteran’s Name]
and Location]

Dear Appellant:

Your appeal is being returned to the Board of Veterans’ Appeals for disposition. This means that your records are being transferred to Washington, DC, so that the Board can reach a decision on your appeal.

Appeals are considered by the Board as promptly as possible, in docket order. Your appeal retains the docket number that it received when it was certified to the Board. Once an appeal has reached the Board, it usually takes several months to review it. The time it takes to complete the appellate review process will vary depending upon the current backlog at the Board.

Any new request for a hearing or to appoint or change representatives or any additional evidence should not be submitted to this office, but should be mailed directly to the Board of Veterans’ Appeals (014), 810 Vermont Avenue, NW, Washington, DC 20420. The request or the additional evidence should be accompanied by a statement of the request or the evidence after the expiration of the 90-day period following the notice of the initial certification of your appeal to the Board. Please see 38 CFR 20.1304 for further details concerning this requirement.

As soon as the decision is made, the Board will notify you.

Sincerely yours,

8-E-7

M21-1, Part IV February 26, 2004
Change 192

CHAPTER 12. MARITAL AND CHILD RELATIONSHIPS

CONTENTS

PARAGRAPH PAGE

SUBCHAPTER I. MARITAL RELATIONSHIP

12.01 General 12-I-1
12.02 Jurisdiction Over Determinations 12-I-2
12.03 Marital Relationship 12-I-2
12.04 Common Law Marriages 12-I-5
12.05 Tribal Marriages 12-I-8
12.06 Proxy Marriages 12-I-9
12.07 Transsexual Marriages 12-I-9
12.08 Establishing a Valid Marriage in Death Cases 12-I-9
12.09 Continuous Cohabitation (38 CFR 3.53) 12-I-10
12.10 Deemed Valid Marriage (38 CFR 3.52) 12-I-10
12.11 Marriage Dates (38 CFR 3.54) 12-I-13
12.12 Effect of Surviving Spouse’s Remarriage 12-I-14
12.13 Conduct Warranting Inference of Remarriage of Surviving Spouse (38 CFR 3.50) 12-I-15
12.14 Termination of Surviving Spouse’s Remarriage 12-I-16

SUBCHAPTER II. CHILDREN

12.15 Child Relationship (38 CFR 3.57) 12-II-1
12.16 Adopted Child 12-II-2
12.17 Stepchild (38 CFR 3.57) 12-II-5
12.18 Effect of Child’s Marriage 12-II-7
12.19 Termination of Child’s Marriage 12-II-8

SUBCHAPTER III. VERIFICATION OF DEPENDENTS OF COMPENSATION
RECIPIENTS AND OF UNREMARRIED STATUS OF DIC RECIPIENTS

12.20 General 12-III-1
12.21 Initial Screening 12-III-1
12.22 Reported Decrease in Dependents or Remarriage 12-III-2
12.23 New or Additional Dependents Shown 12-III-2
12.24 Verification Request Not Returned 12-III-2
12.25 Returned Mail Erroneous Address 12-III-3
12.26 BDN Update 12-III-3
12.27 Cases Located in Another Jurisdiction or at RMC 12-III-4
12.28 End Product Credit 12-III-4
12.29 Reporting 12-III-4

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M21-1, Part IV February 26, 2004
Change 192

1993, to submit evidence showing that income was within the limit for the income year extending from July 1, 1990, to July 1, 1991.

h. Administrative Decisions. When the “deemed valid” question is resolved (favorably or unfavorably), prepare a two-signature administrative decision using the format in paragraph 11.30. The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than coaches.

12.11 MARRIAGE DATES (38 CFR 3.54)

a. General. The marriage dates requirement of 38 CFR 3.54 states that surviving spouse benefits cannot be paid unless the claimant was married to the veteran for at least 1 year immediately preceding the veteran’s death, or a child was born of the marriage or the marriage occurred before a certain “delimiting date.” The marriage dates requirement is like the continuous cohabitation requirement of 38 CFR 3.53 in that it might cause VA to disallow a claim from a veteran’s legal widow under state law. The marriage dates requirement varies with the benefit involved and is a consideration only when the marriage occurred after the veteran’s separation from service. Marriage dates are not an issue if the marriage occurred before or during the veteran’s service.

b. Pension Claimants. Death pension may be paid to a surviving spouse who was married to the veteran:

(1) One year or more before the veteran’s death or

(2) For any period of time if a child was born of the marriage or was born to them before the marriage or

(3) Before the following delimiting dates:

(a) January 1, 1957, if pension eligibility is based on WW II service of the veteran.

(b) February 1, 1965, if pension eligibility is based on the veteran’s Korean conflict service.

(c) May 8, 1985, if pension eligibility is based on the veteran’s Vietnam era service.

(d) January 1, 2001, if pension eligibility is based on the veteran’s Persian Gulf War service.

(e) See 38 CFR 3.54 if pension eligibility is based on periods prior to WW II.

NOTE: If the surviving spouse claimant can qualify in any one of three ways (marriage for 1 year, child born or marriage before applicable delimiting date), the marriage dates requirement of 38 CFR 3.54 is satisfied.

EXAMPLE: A surviving spouse files a claim for pension on October 28, 1990. The veteran had honorable service during the period June 3, 1969, to June 2, 1973 (Vietnam era). The claimant married the veteran on August 7, 1973. The veteran died on June 13, 1974. There were no children born of the marriage. Since the claimant and the veteran were not married for a year and they had no children, the claim would be disallowed were it not for the fact that the marriage occurred before May 8, 1985. Since the veteran had Vietnam era service and the marriage occurred before the applicable delimiting date for Vietnam era service (May 8, 1985), the claimant meets the marriage dates requirement of 38 CFR 3.54.

c. DIC Claimants. The marriage dates requirement for a DIC claimant differs depending on whether the claimant is entitled to DIC under 38 U.S.C. 1310(a) (service-connected death) or 38 U.S.C. 1318 (veteran rated totally disabled for 10 years prior to death).

12-I-13

February 26, 2004 M21-1, Part IV
Change 192

(1) DIC entitlement under 38 U.S.C. 1310(a) may be paid to the surviving spouse who was married to the veteran:

(a) For 1 year or more or

b) For any period of time if a child was born of the marriage or was born to them before the marriage or

(c) Before the expiration of 15 years after the termination of the period of service during which the injury or disease causing the death of the veteran was incurred or aggravated.

(2) DIC entitlement under 38 U.S.C. 1318 may be paid to the surviving spouse who was married to the veteran:

(a) For 1 year or more or

(b) For any period of time if a child was born of the marriage or was born to them before the marriage.

NOTE: The only difference in terms of the marriage dates requirement between DIC claims based on service-connected death and those based on the veteran having been totally disabled for 10 years prior to death is that only the former can qualify based on the veteran’s death having occurred before the expiration of 15 years after the termination of the period of service during which the injury or disease causing the death of the veteran was incurred or aggravated.

d. Child Born of the Marriage. The term “child born of the marriage” for purposes of the 38 CFR 3.54 marriage dates requirement includes a fetus advanced to the point of gestation required to constitute a birth under the law of the jurisdiction in which the fetus was delivered. If this issue arises, it may be necessary to request a legal opinion. See paragraph 12.02.

e. More than One Marriage to Veteran. The effect of multiple marriages is different for the 1-year duration of marriage requirement and the date of marriage requirement.

(1) Multiple periods of marriage cannot be added together to meet the 1-year marriage requirement. In order to satisfy the 1-year marriage requirement, the veteran and spouse must have been married for a year immediately prior to the veteran’s death.

(2) If a surviving spouse has been married to a veteran more than once, use the date of the original marriage in determining if the date of marriage requirement (delimiting date in pension cases and 15 years after qualifying service in DIC cases) was met. See 38 U.S.C. 103(b).

EXAMPLE: The veteran had Vietnam-era service. The claimant married the veteran on March 14, 1985, and was divorced from the veteran on February 13, 1986. They remarried on September 29, 1989, and the veteran died on August 5, 1990. The surviving spouse files for pension. The 1-year marriage requirement is not met because the two periods of less than a year cannot be added together. However, the claimant does satisfy the marriage dates requirement of 38 CFR 3.54 because the original marriage occurred before the delimiting date for Vietnam-era service (May 8, 1985).

12.12 EFFECT OF SURVIVING SPOUSE’S REMARRIAGE

a. General. In order to qualify as a surviving spouse for VA purposes, a person must be unmarried. See 38 CFR 3.50. Therefore, a surviving spouse who remarries is no longer eligible to receive VA benefits.

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Exceptions: Under Public Law 107-330, effective February 4, 2003, a surviving spouse who remarries after age 55 retains CHAMPVA eligibility. (See 23.14a.)

Under Public Law 108-183, effective January 1, 2004, a surviving spouse who remarries on or after his or her 57th birthday remains eligible for DIC, home loan, and educational benefits. Surviving spouses who remarried after turning age 57 prior to the enactment of the Act have until December 16, 2004 to apply for reinstatement of benefits. Survivors who remarried after reaching the age of 57 and whose claims for restored benefits are received on or after December 16, 2004, are not entitled to restoration of benefits. Section 101(d) prohibits retroactive benefits; no benefit may be paid to any person by reason of the amendment for any period prior to the effective date, January 1, 2004.

For those survivors whose benefits were previously terminated due to remarriage on or after the age of 57, a claim for restored benefits must be submitted in writing. When such a claim is received, provide the survivor with VA Form 21-686c for completion. Also ask the survivor if his or her spouse is a veteran. If the spouse is a veteran, request that the survivor indicate the spouse’s social security number or claim number and identify whether the spouse is receiving VA benefits. Cross reference folders as appropriate.

When a current DIC recipient notifies VA of his or her remarriage, again provide the beneficiary with VA Form 21-686c for completion. Also ask the survivor if his or her spouse is a veteran. If the spouse is a veteran, request that the survivor indicate the spouse’s social security number or claim number and identify whether the spouse is receiving VA benefits. Cross reference folders as appropriate.

b. Effective date to stop award — 38 CFR 3.500(n). If a surviving spouse remarries, discontinue payments effective the first of the month during which the marriage occurred.

c. Award Procedures when Surviving Spouse Remarries. See paragraph 26.07.

12.13 CONDUCT WARRANTING INFERENCE OF REMARRIAGE OF SURVIVING SPOUSE (38 CFR 3.50)

a. General. In order to receive death benefits as the surviving spouse of a deceased veteran, the claimant generally must be unmarried (38 CFR 3.50(b)(2)) (See exceptions under paragraph 12.12a). However, 38 CFR 3.50 imposes the additional requirement that the claimant not be living with a person of the opposite sex and holding himself or herself out publicly as the spouse of that person. If the claimant is living with a person of the opposite sex and is holding himself or herself out as the spouse of that person, there is held to be an inference of remarriage. Payment of death benefits is then barred under 38 CFR 3.50(b). (But see paragraph f below.)

b. Reputation in General Community Not Required. It is not necessary to establish that the claimant and the claimant’s roommate were known generally throughout the community as husband and wife in order to invoke an inference of remarriage under 38 CFR 3.50(b). It is sufficient to establish that there was a single instance of holding out as husband and wife.

c. Common Law Marriage Distinguished. In a state which recognizes common law marriages (paragraph 12.04), conduct which would warrant an inference of remarriage under 38 CFR 3.50(b) will probably also suffice to establish a common law marriage under state law. The inference of remarriage concept in 38 CFR 3.50(b) enables VA to deny payment of surviving spouse benefits in states where the claimant is living as the spouse of another person but is not legally married because the state does not recognize common law marriages. Also, it is possible to infer remarriage

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for VA purposes even though a legal marriage (common law or otherwise) might be impossible because of the existence of an impediment to marriage. For example, a claimant might be living with a married person and holding himself or herself out as the spouse of that person. A common law marriage cannot be established because the other party is already married. Benefits could still be barred under 38 CFR 3.50(b).

d. Holding Out Requirement. Before benefits can be denied based on an inference of remarriage, it must be established that the claimant lived with another person AND held himself or herself out openly to the public as the spouse of the other person. This means that the claimant and a person of the opposite sex can live together openly without jeopardizing the claimant’s entitlement to VA benefits as long as they make no representations to the effect that they are married.

e. Conduct Terminated before Entitlement Date. Conduct warranting an inference of remarriage does not constitute a bar to benefits if the conduct terminated before the date of entitlement to VA benefits. However, if the conduct caused a common law marriage to come into existence, VA benefits cannot be paid until the marriage is dissolved. See paragraph 12.04a(2).

f. DIC Cases On or After October 1, 1998. The Veterans Benefits Act of 1998 provides that effective October 1, 1998, the bar to granting DIC benefits does not apply if the surviving spouse ceases living with another person and holding himself or herself out openly to the public as that person’s spouse. Resumption of benefits can only be made from October 1, 1998, even if the cessation of the relationship occurred prior to this date. The provisions of 38 CFR 3.31 apply to the commencement of the period of payment and 38 CFR 3.114(a) applies as the Veterans Benefits Act of 1998 is considered liberalizing legislation.

g. Inference of Remarriage Development See part III, paragraph 6.14f.

h. Administrative Decisions. If it is determined that a surviving spouse has engaged in conduct warranting an inference of remarriage, prepare a three-signature administrative decision using the format in paragraph 11.30. The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than section chiefs.

i. Award Adjustment. If the surviving spouse is in receipt of death pension or DIC, terminate the award under reason code 15 effective the first day of the month in which the relationship began. See 38 CFR 3.500(n)(3).

12.14 TERMINATION OF SURVIVING SPOUSE’S REMARRIAGE

a. Termination before November 1, 1990. Before November 1, 1990, and the passage of Public Law 101-508, a surviving spouse who remarried or engaged in conduct warranting an inference of remarriage (paragraph 12.13) could establish surviving spouse status if the subsequent marriage was terminated, declared void or, in the case of an inferred marriage, the parties stopped living together.

b. Termination after October 31, 1990

(1) Public Law 101-508 provided that a surviving spouse claimant whose remarriage has been terminated by divorce, death or termination of conduct warranting an inference of remarriage can be recognized as the veteran’s surviving spouse ONLY IF the termination of the remarriage took place before November 1, 1990. (But see paragraph f below.)

(2) Public Law 102-86 amended the provision to prohibit reinstatement based upon date of remarriage

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or inference of remarriage instead of date of claim. Generally, reinstatement is barred if the remarriage or inference of remarriage occurs after October 31, 1990. Public Law 102-568 amended this provision to exclude its application to any formerly remarried surviving spouse for whom a legal proceeding to terminate an existing marital relationship was started before November 1, 1990, if that proceeding directly resulted in the termination of the marriage. Supporting evidence must be submitted showing that the surviving spouse actually filed for divorce with a court prior to November 1, 1990.

(3) A remarried surviving spouse whose subsequent marriage is annulled or declared void can reestablish entitlement as a surviving spouse.

c. Development for Termination of Marital Relationship. See part III, paragraph 6.15.

d. Remarriage Alleged to Be Void

(1) If the claimant alleges that a marriage barring entitlement to VA benefits is void, fully develop the facts surrounding the alleged void marriage. After complete development (including, if possible, the certified statements of the parties to the “marriage”), submit the case to District Counsel for a legal opinion as to whether or not the marriage is void. See paragraph 12.02c. The District Counsel opinion determines the issue. No administrative decision is required.

(2) If the District Counsel determines that the remarriage is void, entitlement can be established effective the date cohabitation ceased or the date of claim, whichever is later. See 38 CFR 3.400(v)(1).

e. Annulment Decree Issued

(1) If the surviving spouse alleges that the remarriage has been annulled, request a copy of the court decree of annulment. An annulment decree which appears regular on its face will be accepted as evidence of termination of the remarriage in the absence of any indication of fraud in obtaining the annulment. An administrative decision is not required.

(2) If there is evidence of fraud, initiate full development. As part of this development, request copies of the petition to the court for annulment and the answer. Also, request a transcript of the testimony.

(3) Questions as to whether or not the decree was obtained through fraud are mixed questions of fact and law and, after development, must be submitted to District Counsel for an opinion as to the legal effect.

(4) If the District Counsel opinion indicates that fraud was involved in obtaining an annulment, prepare a three-signature administrative decision using the format in paragraph 11.30. The issue is “marital status of claimant.” The Veterans Service Center Manager may delegate authority to approve the decision to supervisors not lower than section chiefs. A finding that an annulment was fraudulently obtained renders it invalid for VA purposes.

(5) When a judicial decree of annulment is accepted as proof of termination of remarriage, the effective date of an award of benefits is the date the decree became final if the claim is filed within 1 year of that date. In all other cases, entitlement is based on date of claim. See 38 CFR 3.400(v)(2).

f. Reinstatement of DIC Eligibility after September 30, 1998

(1) The Veterans Benefits Act of 1998 (section 8207 of Pub. L. 105-178) made it possible for a surviving spouse to re-establish DIC entitlement after termination of remarriage. Therefore, eligibility for DIC (but not pension) is established in any case in which the remarriage of the surviving spouse is terminated by death, divorce, or annulment.

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(2) The effective date of section 8207 is the date of enactment, June 9, 1998. However, taking into consideration 38 CFR 3.31 and 38 CFR 3.114(a), awards for restored DIC entitlement may be resumed with an effective payment date as early as October 1, 1998. However, in no case can restored DIC be paid with an effective payment date earlier than October 1, 1998. The term “effective payment date,” means the date shown on the BDN award screen as the date benefits resume.

(3) If a claim is filed within 1 year after the date of death, or within 1 year of the date the divorce became final, the effective payment date is the first day of the month following the occurrence of the event which ended the remarriage but not earlier than October 1, 1998.

(4) The provisions of 38 CFR 3.114(a) apply if the surviving spouse is otherwise eligible for DIC and the remarriage had already terminated as of the effective date of the liberalizing provision of law, June 9, 1998. This means a surviving spouse can have benefits restored with an effective payment date of October 1, 1998, or an effective date 1 year prior to the date of reopened claim (subject to 38 CFR 3.31), whichever is later.

EXAMPLE 1: DIC is terminated February 1, 1992, for a surviving spouse based on her remarriage. The second spouse dies May 7, 1997. Surviving spouse files a claim received by RO on November 15, 1998. Effective payment date of restored DIC award is October 1, 1998. (38 CFR 3.114(a) applies here because the surviving spouse met the requirements of the liberalizing legislation on the date of enactment-June 9, 1998.)

EXAMPLE 2: DIC is terminated July 1, 1993, based on the surviving spouse’s remarriage. The remarriage ends in a divorce which becomes final November 5, 1998. A claim for restored DIC entitlement is received January 15, 1999. Effective payment date of restored DIC award is December 1, 1998. (The effective date would be November 5, 1998, in accordance with 38 U.S.C. 5110(l) and subject to 38 CFR 3.31. Therefore, payment would be made from the first day of the month following the date the divorce became final, i.e., December 1, 1998.)

EXAMPLE 3: DIC ends August 1, 1994, due to the surviving spouse’s remarriage. Remarriage ends due to the second spouse’s death on July 17, 1998. Claim for restored DIC received November 27, 1998. Effective payment date of restored DIC benefits is October 1, 1998 (in accordance with 38 U.S.C. 5110(l) and the earliest date permitted under section 8207(b) of Pub. L. 105-178).

g. Reinstatement of Eligibility for CHAMPVA, Chapter 35 and Loan Guaranty Benefits after November 30, 1999. Public Law 106-117, effective November 30, 1999, now permits entitlement to the following benefits for a surviving spouse whose remarriage has been terminated by death, divorce, or annulment, or cessation of an inferred remarriage:

· medical care under the VA Civilian Health and Medical Program (CHAMPVA),
· Dependents’ Educational Assistance under 38 U.S.C. Chapter 35, and
· loan guaranty benefits under 38 U.S.C. Chapter 37.

Prior to this date, VAOPGCPREC 13-98 held that a surviving spouse who regained DIC eligibility under section 8207 of Public Law 105-178, effective October 1, 1998, did not regain eligibility for any of the above. See M21-1, Part III, 6.15 for evidentiary requirements. If a claim is filed within 1 year of the date of death or within 1 year of the date the termination of remarriage became final, the date of entitlement is the first day of the month following the occurrence of the event which ended the remarriage, but no earlier than December 1, 1999.

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36.11 FORFEITURE BASED ON SUBVERSIVE ACTIVITIES

a. The Attorney General, Secretary of Defense or Secretary of Treasury will notify VA when a person is indicted or convicted of subversive activity. After notification of an indictment, suspend payments pending disposition of the criminal proceedings. After notification of a conviction, the Regional Counsel will forward the case to the Compensation and Pension Service (211B) for automatic forfeiture.

b. No other person will be entitled to receive any benefits on account of the individual convicted of subversive activities. The following offenses are added to the offenses listed in 38 CFR 3.903:

· prohibited activities with respect to biological weapons;
· prohibited activities with respect to chemical weapons;
· prohibited transactions involving nuclear materials;
· genocide;
· use of certain weapons of mass destruction; and,
· acts of terrorism transcending national boundaries.

The above supplemental list of offenses applies to claims filed after December 16, 2003 (Public Law 108-183).

36.12 NONFORFEITURE DETERMINATIONS

If a case is returned from Central Office and information is received from the Regional Counsel that no forfeiture was declared or notice is received from the Regional Counsel that the claimant was acquitted of subversive activities, resume payments from the date of last payment, if otherwise in order, under the provisions of 38 CFR 3.669.

36.13 JURISDICTION OF CLAIMS FOLDER IN FORFEITURE CASES

When forfeiture is invoked, the Compensation and Pension Service will refer those cases which are not in a terminated status to WRO for termination under 38 CFR 3.669. The Manila regional office will terminate cases under its jurisdiction. Once terminated, return the claims folder to Central Office. Central Office will maintain all folders until expiration of the appeal period or until an appellate decision is rendered. At the end of the appeal period or after an appellate decision is rendered, Central Office will forward the claims folder to the regional office of jurisdiction. Maintain the folder in locked files.

36.14 APPEALS FROM FORFEITURE DECISIONS

When notice of disagreement is timely filed, forward the notice of disagreement and any material submitted with it to Central Office, Compensation and Pension Service (211B), for preparation of the statement of the case.

36.15 APPORTIONMENTS

a. Forfeiture Invoked Before September 2, 1959. Apportionments may continue in these cases as long as the dependents remain entitled. The amount payable to the dependents is the lesser of the applicable death benefit payable (DIC if the veteran was receiving compensation, or death pension if the veteran was receiving nonservice-connected disability pension) or the amount of compensation or pension being paid the veteran at the time of the forfeiture.

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NOTE: No benefits are payable to or for any person who participated in the treasonable act causing the forfeiture.

b. Forfeiture Invoked After September 1, 1959. If forfeiture was declared after September 1, 1959, do not make an apportionment to any dependents.

36.16 SUBSEQUENT SERVICE

Forfeiture of benefits based on one period of service does not affect entitlement to benefits based on a period of service beginning after the offense causing the forfeiture. Process a claim of this type based on the nonforfeiture period of service only (38 CFR 3.900(a)).

36.17 PRESIDENTIAL PARDON

The Department of Justice no longer accepts and processes petitions for pardon from applicants whose benefits have been forfeited administratively.

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