Too often, a complicated case sits on a rating officer's desk, aging and eventually drawing attention to the officer's backlog. Too often, this is addressed with a simple denial of the claim, tossing the hands into the air and saying "Let the BVA sort it out."
The problem is that our lives continue. And with a claim denied and in the queue for the BVA (Board of Veterans Appeals) five years or more can be wasted, on top of the two or three it took to get the clam through the regional office! So perhaps then eight years of denied medical care, denied family benefits, denied compensation. Consider a veteran with kids headed for college - a 100% rating would entitle the kids to VA monthly support for 48 months...waiting eight years for a claim and a BVA decision, even if favorable, takes the kids through high school and college. Then, no longer eligible, what good the benefits the veteran earned.
"Fortunately" my two year old claim was denied even through supported by over 100 pieces of confirming evidence, and at age 66 with cancer, heart disease and more ailment than I can mention here a five year wait is useless to this veteran. When I mentioned that at the face-to-face meeting with VA's Compensation Services, a smile from them assured me it was the proper process, nothing else to be done.
I protest. What could have been done is a legitimate hearing of my claim and those of other C-123 veterans like Paul Bailey, both of us denied Agent Orange exposure recognition because the VA's Health Benefits Administration has introduced new flavors to the word in the law - eligibility - and using those new flavors finds a clever way to deny benefits.
Science and the law say we C-123 veterans were exposed to military herbicides and are due care from the VA. The VA, in defiance of law, science, medicine, justice, common sense and simple logic, says otherwise in the face of other federal agencies far better qualified to in their confirmation of our exposure. Who the heck made the VA science different and better than that practiced by the NIH, US Public Health Service, EPA, and CDC?-------------------------------------------VA LETTER BELOW-------
VBA Letter 20-13-05
VA Regional Offices
DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 204239
SUBJ: Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years
Purpose
This initiative is the first in a series of efforts to address VA’s oldest claims. This letter focuses on those rating claims pending for over two years. Further guidance will be provided regarding claims pending less than two years. The intent of this initiative is to work all claims pending for more than two years within 60 days from the date of this letter. Regional Offices (RO) must immediately begin to process these claims based on the below guidance. For the claims at issue, this guidance supersedes all other guidance from other offices or personnel. It does not affect those claims that already require priority processing (Homeless, Terminally Ill, Medal of Honor recipients, Former POWs, and Fully Developed Claims).
Guidance for Processing Claims Pending More Than Two Years:
Identifying Claims
This guidance applies to claims received on or before July 1, 2011. The date of claim of the oldest pending claim in the file will be used to identify claims addressed under this special initiative. Use the Special Issue indicator “OCR – Old Claim Review” to identify these claims electronically in VETSNET Operations Reports (VOR). Follow the Brokering/Shipping Instructions provided in the enclosure.
Use of RO Personnel
ROs will devote all RVSRs and as many VSRs as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.
Purpose
This initiative is the first in a series of efforts to address VA’s oldest claims. This letter focuses on those rating claims pending for over two years. Further guidance will be provided regarding claims pending less than two years. The intent of this initiative is to work all claims pending for more than two years within 60 days from the date of this letter. Regional Offices (RO) must immediately begin to process these claims based on the below guidance. For the claims at issue, this guidance supersedes all other guidance from other offices or personnel. It does not affect those claims that already require priority processing (Homeless, Terminally Ill, Medal of Honor recipients, Former POWs, and Fully Developed Claims).
Guidance for Processing Claims Pending More Than Two Years:
Identifying Claims
This guidance applies to claims received on or before July 1, 2011. The date of claim of the oldest pending claim in the file will be used to identify claims addressed under this special initiative. Use the Special Issue indicator “OCR – Old Claim Review” to identify these claims electronically in VETSNET Operations Reports (VOR). Follow the Brokering/Shipping Instructions provided in the enclosure.
Use of RO Personnel
ROs will devote all RVSRs and as many VSRs as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.
Upon receipt of this guidance, immediately identify two-year old cases and develop an
aggressive plan to complete these cases as soon as possible but no later than 60 days from the
date of this letter.
Rating Actions
Raters will immediately begin to process two-year old rating claims and develop an aggressive plan based on the “available evidence” in the claims file. The rating decision produced will be considered a provisional rating unless ALL evidence in support of the claim has been received (and the claim is considered ready-to-rate) or the rating assigned provides the highest level evaluation authorized for the particular diagnostic code for each claimed issue. The End Product (EP) will be cleared for any rating completed as a result of this special initiative and no issues will be deferred on a rating decision.
Category 1 Cases: ROs will issue rating decisions, as normal, for ready-to-rate cases that meet the two-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in VA’s Schedule for Rating Disabilities for each claimed issue. These will be FINAL decisions and appeal rights will be provided.
Category 2 Cases: ROs will issue “provisional” rating decisions for other two-year old cases even if VA is still waiting for certain evidence. RVSRs will complete these claims based on the available evidence of record as long as the appropriate Section (§) 5103 notice (formerly VCAA notice) was provided to the claimant UNLESS the following requests for evidence are outstanding:
Rating Actions
Raters will immediately begin to process two-year old rating claims and develop an aggressive plan based on the “available evidence” in the claims file. The rating decision produced will be considered a provisional rating unless ALL evidence in support of the claim has been received (and the claim is considered ready-to-rate) or the rating assigned provides the highest level evaluation authorized for the particular diagnostic code for each claimed issue. The End Product (EP) will be cleared for any rating completed as a result of this special initiative and no issues will be deferred on a rating decision.
Category 1 Cases: ROs will issue rating decisions, as normal, for ready-to-rate cases that meet the two-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in VA’s Schedule for Rating Disabilities for each claimed issue. These will be FINAL decisions and appeal rights will be provided.
Category 2 Cases: ROs will issue “provisional” rating decisions for other two-year old cases even if VA is still waiting for certain evidence. RVSRs will complete these claims based on the available evidence of record as long as the appropriate Section (§) 5103 notice (formerly VCAA notice) was provided to the claimant UNLESS the following requests for evidence are outstanding:
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Service Treatment Records (STRs) for original claims;
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VA medical records;
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Any evidence needed to establish Veteran status and/or pertinent service dates, if
available evidence is not otherwise sufficient;
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VA examinations, if such exams are pending at the time the case is reviewed or if one
is required in order to issue a decision.
The above minimal level of evidence must be available before a Category 2 rating is completed. Therefore, in order to meet the required completion date for these cases, ROs must expedite procedures to secure this evidence and decide the claim.
In any Category 2 case where the RO is awaiting VA exam results, ROs will contact the appropriate VHA facility or contract examination provider to expedite completion of the required exam(s) so that a decision may be issued promptly. Only order a new exam when one is required to decide the claim.
RVSRs will rate on the available Service Treatment Records (STR) of record, to include copies supplied by the claimant. If no STRs are of record or no STRs have been developed, immediately
develop for such records, and ensure they are available at the time of the rating (unless it is
reasonably certain that such records do not exist or that further efforts to obtain those records
would be futile).
RVSRs should make a provisional decision based on the evidence of record. If required Federal records outside of STRs have not been received, issue the provisional decision and then request the Federal records. If private records have been requested only once, issue the provisional decision and then request the private records again unless it is clear a second request would be futile. Establish an EP 400 using the special indicator "OCR – Old Claim Review" to make the request for Federal and/or private records.
RVSRs will accept Acceptable Clinical Evidence (ACE) evaluations where possible, and rate on the medical evidence of record in accordance with 38 C.F.R. § 3.326.
Because the decision notification for Category 2 cases will inform claimants that a provisional decision has been made, it is not necessary to include such language in the rating document.
In the “evidence” section of the Rating Decision, RVSRs will list all evidence considered, as normal. The RVSR will also list evidence identified but not available at the time of the provisional rating.
No issue(s) will be deferred on a rating document.
Other rating considerations for Category 2 claims:
For claims falling within the provisions of this guidance, the prohibitions against certain partial rating decisions found in M21-1MR III.iv.6.A.1.b do not apply.
RVSRs will grant entitlement to service connection for the claimed disability at the highest justifiable evaluation level of disability based upon the evidence of record, as warranted.
One year from the date of notification of the provisional decision, ROs will assess all Category 2 claims and provide notice of a final decision to include appeal rights. Compensation Service will provide additional guidance in the future regarding procedures for the review of Category 2 cases after the one-year period has ended.
Authorization Actions
All Category 1 cases will be processed as normal.
For Category 2 cases, the following procedures shall be followed:
• Before promulgation of the decision, local Veterans Service Organizations will be given a full 48-hours to review the rating decision. In addition, a POC (and alternate POC) shall be
RVSRs should make a provisional decision based on the evidence of record. If required Federal records outside of STRs have not been received, issue the provisional decision and then request the Federal records. If private records have been requested only once, issue the provisional decision and then request the private records again unless it is clear a second request would be futile. Establish an EP 400 using the special indicator "OCR – Old Claim Review" to make the request for Federal and/or private records.
RVSRs will accept Acceptable Clinical Evidence (ACE) evaluations where possible, and rate on the medical evidence of record in accordance with 38 C.F.R. § 3.326.
Because the decision notification for Category 2 cases will inform claimants that a provisional decision has been made, it is not necessary to include such language in the rating document.
In the “evidence” section of the Rating Decision, RVSRs will list all evidence considered, as normal. The RVSR will also list evidence identified but not available at the time of the provisional rating.
No issue(s) will be deferred on a rating document.
Other rating considerations for Category 2 claims:
For claims falling within the provisions of this guidance, the prohibitions against certain partial rating decisions found in M21-1MR III.iv.6.A.1.b do not apply.
RVSRs will grant entitlement to service connection for the claimed disability at the highest justifiable evaluation level of disability based upon the evidence of record, as warranted.
One year from the date of notification of the provisional decision, ROs will assess all Category 2 claims and provide notice of a final decision to include appeal rights. Compensation Service will provide additional guidance in the future regarding procedures for the review of Category 2 cases after the one-year period has ended.
Authorization Actions
All Category 1 cases will be processed as normal.
For Category 2 cases, the following procedures shall be followed:
• Before promulgation of the decision, local Veterans Service Organizations will be given a full 48-hours to review the rating decision. In addition, a POC (and alternate POC) shall be
designated within the Veterans Service Center so that Service Officers can contact these
individuals directly if they have questions or concerns.
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Upon promulgation of this provisional decision, clear the controlling EP.
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No appeal rights will be provided to the claimant since the decision rendered is considered a
provisional decision. After one year (or earlier if the claimant requests), the claimant will be
notified that the claim has become final and provided appeal rights. This only applies to cases worked under this special initiative.
Important: Be sure that any reference to "final" decision or appeal rights notification that is generated automatically in the notification letter is removed.
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Diary the case for one year from the date of the decision. Establish Diary Reason 39 -
Review for Reevaluation.
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After the decision is issued, the completed claims should be added to the files sent
immediately for scanning. Follow the shipping instructions set forth in the enclosure.
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If the claimant submits additional evidence or VA receives previously requested records
within the one-year time period which allows a final decision to be made, VA will establish a
new EP with a special issue “OCR – second review,” clear the diary, PCLR EP 400 if
pending, and take the appropriate adjudicative actions.
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If all evidence is received at any time during the one-year period after the provisional
decision is issued, take the appropriate adjudicative action and issue a final rating decision
with appeal rights.
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In most instances, the effective date will go back to the date of claim of the earlier EP.
Decision Notification Criteria
The responsible party for preparing the decision notification for claims processed under this special initiative must include the following special language in the letter:
“We have made a decision based on a special initiative to complete your pending claim. This is a provisional decision that is based on the evidence currently in VA’s possession. If you have additional relevant evidence pertaining to the issues decided here that you would like us to consider, please submit it to our office within one year of the date of this letter and we may reconsider our decision. If you want VA to obtain evidence that you previously told us about that was not available at the time of our decision, tell us and we may be able to obtain this evidence.
If you want to receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement as follows:
“All necessary evidence was considered by VA. I request that this provisional decision be made final.”
STAR and QRT
Quality will continue to be assessed on decisions made under this special initiative. However quality will be measured based on the accuracy of the decision based solely on the evidence of record at the time the decision was made.
Quality will continue to be assessed on decisions made under this special initiative. However quality will be measured based on the accuracy of the decision based solely on the evidence of record at the time the decision was made.
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