**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**       | # | # | # |
|                                                        | # | # | # |
|                                                        | # | # | # |
|                                                        |   | # | # |
|                                                        | Y | # | # |
|                                                        | e |   |   |
|                                                        | s | N | N |
|                                                        |   | o | / |
|                                                        |   |   | 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                     | # | * | # |
|                                                        |   | * |   |
|                                                        | Y | N | N |
|                                                        | e | o | / |
|                                                        | s | * | 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**            | * | * | *  |
|                                                        | * | * | *N |
|                                                        | Y | N | /A |
|                                                        | e | o | ** |
|                                                        | s | * |    |
|                                                        | * | * |    |
|                                                        | * |   |    |
+--------------------------------------------------------+---+---+----+
| ## 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**              | * | * | *  |
|                                                        | * | * | *N |
|                                                        | Y | N | /A |
|                                                        | e | o | ** |
|                                                        | s | * |    |
|                                                        | * | * |    |
|                                                        | * |   |    |
+--------------------------------------------------------+---+---+----+
| 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)**                        | * | # | ## |
|                                                        | * | # | ## |
|                                                        | Y | # | ## |
|                                                        | e | # |  N |
|                                                        | s | # | /A |
|                                                        | * | # |    |
|                                                        | * |   |    |
|                                                        |   | N |    |
|                                                        |   | o |    |
+--------------------------------------------------------+---+---+----+
| 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*)    | # | # | *  |
|                                                        | # | # | *N |
|                                                        | # | # | /A |
|                                                        |   | # | ** |
|                                                        | Y | # |    |
|                                                        | e | # |    |
|                                                        | s |   |    |
|                                                        |   | N |    |
|                                                        |   | o |    |
+--------------------------------------------------------+---+---+----+
| 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 \[[insert
date\]]{.underline}.

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

# 

# 

# 

# 

# 

# 

# 

#  12-i 

# 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.

**12-I-14**

######### M21-1, Part IV February 26, 2004

**Change 192**

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

Under Public Law 108-183, effective January 1, 2004, a surviving spouse
who remarries on or after his or her 57^th^ 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

**12-I-15**

######### February 26, 2004 M21-1, Part IV

**Change 192**

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

**12-I-16**

**February 26, 2004 M21-1, Part IV**

**Change 192**

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.

**12-I-17**

**February 26, 2004 M21-1, Part IV**

**Change 192**

\(2\) 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.

    **12-I-18**

    **February 26, 2004 M21-1, Part IV**

    **Change 192**

    **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.

**36-II-3**

**M21-1, Part IV February 26, 2004**

**Change 192**

**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.

**36-II-4**