# Veterans Benefits Administration M21-1, Part III

# Department of Veterans Affairs Change 132

**Washington, DC 20420 April 5, 2005**

Veterans Benefits Manual M21-1, Part III, "Authorization and Clerical
Procedures," is changed as follows:

**Pages 5-i through 5-ii:** Remove these pages and substitute pages 5-i
through 5-ii, attached.

**Pages 5-I-1 through 5-I-5:** Remove these pages and substitute pages
5-I-1 through 5-I-5, attached.

Paragraph 5.03a(1) is revised to show that VBA claims files are not
subject to the Health Insurance Portability and Accountability Act
(HIPAA) rules.

> By Direction of the Under Secretary for Benefits
>
> Renée L. Szybala, Director
>
> Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

# 

# April 5, 2005 M21-1, Part III

#  Change 132

**CHAPTER 5. REQUESTS FOR MEDICAL/EMPLOYABILITY EVIDENCE**

**CONTENTS**

PARAGRAPH PAGE

####### SUBCHAPTER I. GENERAL COMPENSATION CLAIMS

5.01 Service Medical Records 5-I-1

5.02 Claims Based on Positive Tuberculin Reaction 5-I-1

5.03 Requests for Medical/Employment Evidence from Nonservice Sources
5-I-1

5.04 Requests for Evidence Regarding Acute Disabilities 5-I-3

5.05 Development of Chronic or Tropical Disease Claims 5-I-3

5.06 Development of Accidental Injuries 5-I-4

5.07 Prompt Submission to Rating Activity 5-I-4

5.08 Control of Evaluations Based on Individual Unemployability 5-I-5

5.09 Distribution of Examinations 5-I-5

####### SUBCHAPTER II. COMPENSATION CLAIMS FOR SPECIAL DISABILITIES

5.10 Claims Based on Exposure to Herbicides Containing Dioxin (2, 3, 7,
8

Tetrachlorodibenzo-p-dioxin) During Service in the Republic of Vietnam
5-II-1

5.11 Presumptive Service Connection Under 38 U.S.C. 1112 for Radiogenic
Diseases 5-II-2

5.12 Development of Ionizing Radiation Exposure (under 38 CFR 3.311)
5-II-3

5.13 Asbestos-Related Diseases 5-II-10

5.14 Post Traumatic Stress Disorder (PTSD) 5-II-10

5.15 Acquired Immune Deficiency Syndrome (AIDS) 5-II-16

5.16 Ex-Prisoner of War Cases 5-II-16

5.17 Development of Claims Based on Undiagnosed Illnesses of Gulf War
Veterans 5-II-18

5.18 Development for Exposure to Mustard Gas and Lewisite 5-II-20

####### SUBCHAPTER III. ORIGINAL DISABILITY PENSION CLAIMS

5.19 General 5-III-1

5.20 Medical Evidence of Probable Entitlement 5-III-1

5.21 Development as to Unemployability 5-III-2

5.22 Income and Net Worth 5-III-2

5.23 Development as to Veteran\'s Age 5-III-2

5.24 Development Regarding Willful Misconduct 5-III-2

5.25 Referral to Rating Activity 5-III-3

5.26 Distribution of Examinations 5-III-3

**[APPENDIX A]{.smallcaps}**

A-1 Acronyms and Forms Used in Chapter 5 5-A-1

####### APPENDIX B---EXHIBITS

B-1 Sample of Folder Flash 5-B-2

B-2 GW Checklist 5-B-3

B-3 Gulf War Undiagnosed Illness Standard Development Letter 5-B-4

B-4 Sample Paragraph Concerning Extension of Presumptive Period 5-B-6

**5-i**

**M21-1, Part III April 5, 2005**

**Change 132**

B-5 Letter of Notification if No Change after Readjudication 5-B-7

B-6 Sample Letter Asking GW Veterans with Pending Claims if They Want
Their Medical

Information Included in the Health Registry 5-B-8

B-7 Request for Lay Evidence 5-B-9

B-8 Follow-Up Request for Lay Evidence 5-B-11

B-9 Suggested Letter to Use to Request Participation or Radiation Dose
Information

from the Defense Threat Reduction Agency 5-B-13

B-10 Exposure to Nuclear Radiation and Department of Defense Secrecy
Agreements 5-B-14

B-11 Formal Finding of a Lack of Evidence to Verify Stressor 5-B-15

**5-ii**

**April 5, 2005 M21-1, Part III**

**Change 132**

**CHAPTER 5. REQUESTS FOR MEDICAL/EMPLOYABILITY EVIDENCE**

**SUBCHAPTER I. GENERAL COMPENSATION CLAIMS**

Note: VA has a duty to assist the claimant in obtaining evidence to
substantiate a claim. Procedures described in paragraph 1.02 are to be
followed when requesting all types of evidence.

Abbreviations, acronyms, etc., are used throughout the chapter. A
complete list is included as Appendix A.

**5.01 SERVICE MEDICAL RECORDS**

We must get all available service medical records. Ascertain the alleged
disabilities and any dental conditions from the claim, including the
dates and places of examination or treatment. Carefully review any
available service medical/dental records in the claims folder to find
records supporting the claimed disabilities. Submit requests for service
dental and medical records on the same Request for Information. If
possible, make the request for records using the Personnel Information
and Exchange System (PIES). Refer the service medical records to the
rating activity for review.

**5.02 CLAIMS BASED ON POSITIVE TUBERCULIN REACTION**

a\. **Positive Tuberculin Reaction is Sole Condition Claimed.** If VA
Form 21-526 is received claiming only a positive tuberculin reaction,
refer the claim to the rating activity for a determination as to whether
or not a disability is present (pt. IV, par. 23.05).

b\. **Other Disabilities Claimed.** If a VA Form 21-526 indicates that a
positive tuberculin reaction is claimed together with other
disabilities, complete any appropriate development required for the
other disabilities. Refer the file to the rating activity for rating of
all claimed disabilities.

c\. **Follow-Up Report.** As provided in part IV, paragraph 23.05, a VA
outpatient clinic or medical center will furnish a report of the
follow-up examination made on expiration of the 12-month period of
chemotherapy to discharged personnel who have had a tuberculin test
conversion from negative to positive during service. If this report or
any other evidence indicates the presence of tuberculous disease, take
appropriate rating action. Give due regard to establishment of service
connection by way of presumption under 38 CFR 3.307 (par. 5.05d).

**5.03 REQUESTS FOR MEDICAL/EMPLOYMENT EVIDENCE FROM NONSERVICE
SOURCES**

Request any treatment records that the claimant has identified and that
are relevant to the disposition of the claim. Advise the non-VA
institution, physician, etc., that VA cannot pay for the information
requested. Establish a 60-day control for receipt of the records. If no
response is received, follow the duty to assist procedures in par. 1.02.
If the custodian of the records does not respond to the request, send a
follow up request and establish a 30-day control for receipt of the
records.

a\. **Requesting Medical Information from Non-VA Sources.** Treatment
reports from non-VA sources will not ordinarily be furnished without a
current authorization by the claimant or, if the patient is incompetent,
fiduciary or next of kin. Send the VA Form 21-4142 to the claimant (or
fiduciary or next of kin) if not already of record. When evidence is
requested, simultaneously notify the claimant that the request is made,
but that he or she is ultimately responsible for seeing that the records
are provided. The records may be requested from the claimant via the 203
screen (HOSPITAL/DOCTOR REPORT).

\(1\) **Authorization for Release of Information/Health Insurance
Portability and Accountability Act** **(HIPAA).** A reproduction of the
\"Certification and Authorization for Release of Information\" section
of VA Form 21-526 dated within 1 year of its being completed will
generally be accepted as sufficient authority to release confidential
medical information. If this authorization for release is not acceptable
to the medical provider, send VA Form 21-4142, "Authorization for
Release of Information," or the release provided by the record holder,
to the claimant via a BDN development or a locally generated letter.
**5-I-1**

**M21-1, Part III April 5, 2005**

**Change 132**

On April 14, 2003, the Health Insurance Portability and Accountability
Act (HIPAA) went into effect. The HIPAA privacy rule establishes the
conditions under which protected health information may be used or
disclosed by covered entities. The Office of General Counsel issued a
precedent opinion (3-2003) stating that records in compensation and
pension claims files are not subject to the HIPAA privacy rules. This
conclusion was based on the fact that VBA did not meet the definition of
a covered entity as described in 45 C.F.R. § 160.103. The following
statements are a brief description of what a covered entity means:

-   A **health plan** provides or pays the cost of medical care.

-   A **health care clearinghouse** means a public or private entity
    which translates health information from one format to another and
    forwards it.

1.  A **health care provider** means a provider of services as defined
    in 42 U.S.C. § 1395x(u), i.e., hospitals, critical access hospitals,
    skilled nursing facilities, comprehensive outpatient rehabilitation
    facilities, home health agencies, and hospice programs; a provider
    of medical or health services as defined in 42 U.S.C. § 1395x(s),
    e.g., physicians' services, office-type services and supplies
    furnished incident to a physician's professional service, diagnostic
    tests, therapy, dressings and casts, durable medical equipment,
    ambulance service, prosthetic devices, vaccine, nurse anesthetist
    services, and mammography and other types of screening or anyone
    else who furnishes, bills or is paid for health care in the normal
    course of business.

The HIPAA privacy rules do affect VA Form 21-4142, Authorization And
Consent To Release Information to the Department of Veterans Affairs
(VA). Therefore, when requesting information from a covered entity as
described above, you must use a VA Form 21-4142 dated May 2004 or later.

\(2\) **Request to Non-VA Institution for Hospital Report.** Send FL
21-121 (original and one copy) with an authorization to obtain a report
from a non-VA hospital.

\(3\) **Request to Civilian Physician.** Send FL 21-104 (original and
one copy) with an authorization to obtain a report from an attending
physician.

\(4\) **Request to Persons Who Know Facts about Veteran\'s Sickness,
Disease or Injury.** Send FL 21-53 to each person listed on the
veteran\'s VA Form 21-526.

\(5\) **Action on Expiration of Control Date.** Concurrently request
reports from both the medical facility or physician and the claimant. If
the report or statement is not received from the institution, physician
or person having knowledge of the claimed condition after two attempts,
forward the claims file to the rating board for rating or to direct
further development.

b\. **Requesting Medical Information from VA Institution**

\(1\) **AMIE/CARPI Request or Use of VA Form 10-7131.** If the veteran
is a patient at a VA medical center or at a non-VA hospital as a VA
beneficiary, and an AMIE/CAPRI request or VA Form 10-7131 admission
notice has been received, indicate on the request what reports and
hospital summaries are required. If requested via AMIE/CAPRI, progress
notes or hospital summaries can be requested by range. If a veteran's
records are not on AMIE/CAPRI, they can be requested electronically via
the VA Form 10-7131. See part IV, paragraph 18.01. Establish necessary
controls to ensure the timely return of the requested reports.

\(a\) If an admission notice has not been received, request that
information from the medical facility via AMIE/CAPRI.

\(b\) Similarly, if the veteran has been treated at a VA outpatient
clinic and a summary of that treatment is needed, request that report
via AMIE/CAPRI.

**5-I-2**

# April 5, 2005 M21-1, Part III

> **Change 132**

\(2\) **Follow-Up Requests.** VA must continue to send follow-up
requests until we are reasonably certain that the records requested do
not exist or until we determine that further efforts would be futile.
This applies to all SMRs, Federal records, including VA and SSA. Change
the suspense date accordingly.

c\. **Requesting Medical/Employment Information from Social Security
Administration.** If a veteran is claiming an increased evaluation for
service-connected conditions or nonservice-connected pension and there
is indication that he or she has claimed or is receiving disability
benefits from the Social Security Administration (SSA), request copies
of the medical records on which the SSA decision was based. In addition,
request copies of the SSA disability decision documents. The
availability of these documents will further assist with the processing
of the veteran's claim for benefits. See paragraph 9.01 for instructions
on making this request.

d\. **Requesting Vocational Rehabilitation Records.** If a veteran is
claiming \"individual

unemployability\" and Chapter 31 training was either not found to be
medically feasible or discontinued, include the vocational
rehabilitation records when forwarding the claims folder to the rating
activity.

**5.04 REQUESTS FOR EVIDENCE REGARDING ACUTE DISABILITIES**

a\. **Definition.** An acute disability is a disease or injury which has
definite symptoms, short period of duration and recovery without
apparent residuals. Examples: Nasopharyngitis or catarrhal fever (common
cold), pneumonia, bruise, etc.

b\. **Substantially Complete Claim.** If a claim is substantially
complete (as described in paragraph 1.02), the following steps should be
taken:

\(1\) Develop for evidence of continuity of symptoms and any other
relevant medical records, including evidence showing the present
existence of the disabilities claimed.

\(2\) Refer the claim to the rating activity for a decision when the
evidence is received or if the claimant or source fails to provide the
requested evidence within the prescribed 60-day and 30-day follow-up
periods.

\(3\) If denied, a formal coded rating decision is required.

**5.05 DEVELOPMENT OF CHRONIC OR TROPICAL DISEASE CLAIMS**

a\. **General.** A chronic disease is generally one of prolonged
duration producing incapacitating symptoms of varying degree. While
these conditions may undergo remission, they are seldom entirely cured
with all residuals of damage completely eradicated.

\(1\) The prefacing of a diagnosis with the word \"chronic\" does not
necessarily establish it as chronic. That is a matter of factual
determination dependent on the nature of the disease and its
manifestations. Some diseases are inherently chronic, e.g., multiple
sclerosis, while others, like bronchitis, may be either acute or
chronic.

\(2\) The conditions listed in 38 U.S.C. 1101(3) and 38 CFR 3.309(a) are
chronic diseases. The conditions listed in 38 U.S.C. 1101(4) and 38 CFR
3.309(b) are tropical diseases.

b\. **Treatment Shown in Service.** If service records show treatment
for a chronic or tropical disease, refer the case to the rating
activity.

c\. **No Treatment during Service.** Even though certain chronic and
tropical diseases were not shown during service, they may still be
service connected under the presumptive provisions of 38 U.S.C. 1112,
1133 or 1137. Conditions which may be service connected in this manner
and the service requirements that must be met are contained in 38 CFR
3.307.

**5-I-3**

# M21-1, Part III April 5, 2005

**Change 132**

d\. **Development of Evidence for Presumptive Service Connection.** The
issue of service connection for a chronic or tropical condition must be
considered on both a direct basis and a presumptive basis. A
substantially complete claim *must* be of record before the following
applies:

\(1\) The possibility of entitlement to presumptive service connection
will always be held to exist when the veteran alleges inception within
the limiting periods contained in 38 U.S.C. 1112 or, when appropriate,
38 U.S.C. 1133.

\(2\) The veteran need not establish that the condition in question was
definitely diagnosed within the presumptive period.

\(3\) Evidence should show that manifestations of the condition,
disabling to the degree of at least 10 percent, became apparent prior to
the expiration of the presumptive period shown within 38 CFR 3.307.

**5.06 DEVELOPMENT OF ACCIDENTAL INJURIES**

a\. **Line-of-Duty Determinations.** See part IV, paragraph 11.03.

b\. **Disabilities Resulting from Accidental Injuries or Willful
Misconduct in Service.** Determine whether any claimed disability
resulted from an accidental injury requiring a VA determination as to
line of duty or willful misconduct. See part IV, paragraph 11.04.

c\. **Request for Field Investigations.** A field investigation can be
used to resolve conflicts in evidence or to remedy defects in the
evidence if all other efforts to secure sufficient data for a
line-of-duty or willful misconduct determination have been exhausted. If
it becomes apparent at any point that a field investigation is required,
initiate a field investigation by executing VA Form 27-3537a. See
chapter 8.

d\. **Use of VA Form 21-4176, "Report of Accidental Injury in Support of
Claim for Compensation or Pension."** After review of service department
information, if it is determined that further development concerning an
accidental injury is necessary, send a VA Form 21-4176 to the veteran.

\(1\) Send the form via BDN by checking the "ACCIDENT/INJ" field on the
203 screen. Extend the control an additional 60 days to allow the
veteran time to complete the form.

\(2\) If no reply is received, forward the claim to the rating board for
a formal rating or to direct further development.

e\. **Use of FL 21-806 to Obtain Statement of Witness to Accident.** If
the names and addresses of witnesses are known at the time VA Form
21-4176 is released, release FL 21-806 simultaneously. Otherwise, send
the letter when witnesses are identified and their statements are
important to a proper decision.

\(1\) In the space provided on the letter, enter the date, place and
type of accident.

\(2\) Maintain a 60-day control. At the same time the request is made,
inform the claimant of the request and ask for his or her assistance in
submitting the report of the witness. If a reply is not received within
60 days, send a follow up request and maintain a 30-day control.

f\. **Official Police Report of Accident.** If a police report covering
an accidental injury is of record and potential evidence in such a
report is considered relevant to a decision, send a locally generated
letter to obtain a copy.

**5.07 PROMPT SUBMISSION OF PARTIAL GRANT TO RATING TEAM**

After development has been initiated, including a VA examination or
medical opinion request, if necessary,

**5-I-4**

**April 5, 2005 M21-1, Part III**

**Change 132**

send the claims folder to the Rating Team if a partial grant of any
issue can be awarded based on the evidence already of record. See part
VI, paragraph 10.01 for pre-stabilization ratings.

**5.08 CONTROL OF EVALUATIONS BASED ON INDIVIDUAL UNEMPLOYABILITY**

If a total service-connected evaluation based on individual
unemployability is assigned, the BDN will automatically send the veteran
an annual letter reminding the veteran of his or her responsibility to
report to VA immediately if he or she goes back to work. Control will be
maintained by the Income Verification Match. See part IV, paragraph
31.58.

**5.09 DISTRIBUTION OF EXAMINATIONS**

a\. **Examination Requests.** Examinations should be requested from the
medical center in whose primary service area the veteran resides or
designated contracted provider. A listing of VA medical centers by
pertinent county and zip code must be maintained at each regional
office.

> b\. **Stateside Examinations for Manila Cases.** See part IV, chapter
> 34.

**5-I-5**