**Veterans Benefits Administration M21-1, Part IV**

**Department of Veterans Affairs Change 197**

**Washington, DC 20420 April 5, 2004**

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

**Pages 9-II-1 through 9-II-4:** Remove these pages and substitute pages
9-II-1 through 9-II-4 attached.

Paragraph 9.17e is updated to replace the term "hearing officer" with
"Decision Review Officer."

Paragraph 9.18a and 9.18d are revised to state that all Decision Review
Officer rating decisions which will reduce a service-connected
evaluation based on clear and unmistakable error must be signed by the
Veterans Service Center Manager or Assistant Veterans Service Center
Manager. As indicated in 9.18d, this requirement applies even if the
reduction in evaluation does not result in decreased benefits.

Paragraph 9.18b is amended to show the correct references as "9.17a" and
"9.17e."

Paragraph 9.18c is revised to reflect that the signature of an Assistant
Veterans Service Center Manager may be appropriate for Decision Review
Officer rating decisions.

**Pages 35-A-5 through 35-A-17:** Remove these pages and substitute
pages 35-A-5 through 35-A-18 attached.

Chapter 35, Section A, is amended to require Decision Review Officers to
submit rating decisions for the approval of the Veterans Service Center
Manager or Assistant Veterans Service Center Manager when the decision
cites clear and unmistakable error and would reduce a service-connected
evaluation or would sever service connection.

This change is reflected on the attached pages

-   35-A-6

-   35-A-7, and

-   35-A-17.

By Direction of the Under Secretary for Benefits

Ronald J. Henke, Director

> Compensation and Pension Service

Distribution: RPC: 2068

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

LOCAL REPRODUCTION AUTHORIZED

##   {#section .unnumbered}

**April 5, 2004 M21-1, Part IV**

**Change 197**

**SUBCHAPTER II. REDUCTIONS**

**9.16 REDUCTIONS UNDER ADMINISTRATIVE ERROR (38 CFR 3.500(B)(2))**

a\. **Administrative Decision Required.** Prepare a proposed
administrative decision to reduce or terminate benefits as a result of
an erroneous award based solely on administrative error or error in
judgment (38 CFR 3.500(b)(2)). Give the beneficiary 60 days to submit
evidence to show why the reduction should not be made. Do not include
language about minimizing an overpayment since an overpayment will not
be created.

\(1\) A coach may approve the proposed decision if the amount of the
erroneous payment is less than \$2000. If greater than \$2000, the VSCM
must approve the decision. Use the amount of the erroneous payment as of
DLP at the time of approval of the proposed decision to determine who
must approve the proposal.

\(2\) If a coach approves the proposed decision, he/she can approve the
final decision even though the amount of the erroneous payment may then
be equal to or greater than \$2000.

b\. **No Evidence Provided and No Hearing Requested.** If new evidence
is not received within the 60-day due process period and VA does not
receive a request for a hearing from the beneficiary within 30 days of
the date of notice of the proposed reduction, reduce benefits the last
day of the month in which the 60-day period expires.

\(1\) Another administrative decision is not required. A memorandum for
file stating that no evidence was submitted and that the proposed
decision is final will suffice. It must be signed by either a coach or
the VSCM.

\(2\) File the proposed decision and a copy of the memo in the VSCM\'s
office per subparagraph 11.31(b)(1).

c\. **Evidence Provided or Hearing Requested.** If the beneficiary
provides new evidence or VA receives a request for a hearing from the
beneficiary within 30 days of the date of notice of the proposed
reduction, continue benefits at the same rate pending a final decision.
Reduce or terminate benefits effective the last day of the month of the
**FINAL** decision or the end of the 60-day period, whichever is later.
If new evidence is submitted, another administrative decision is
required. If a hearing is held, the Decision Review Officer will suffice
for another administrative decision and coach approval. If VSCM approval
is required, the Decision Review Officer will submit his/her decision to
the VSCM for approval.

d\. **Overpayment.** **NEVER** create an overpayment in cases involving
erroneous awards based solely on administrative error or error in
judgment.

**9.17 REDUCTION IN EVALUATION\--COMPENSATION (38 CFR 3.105(e))**

a\. **Reduction\--No Increase in An Evaluation or No New Compensable
Grant.** If the reduction in evaluation of a service-connected
disability or discontinuance of unemployability will result in a
reduction or discontinuance of compensation, follow these procedures:

\(1\) **Rating.** The rating activity will prepare a rating proposing
the reduction or discontinuance of benefits setting forth all material
facts and reasons for this action. The activity will use the legend
\"PROPOSAL TO REDUCE EVALUATION(S)\--38 CFR 3.105(e)\" and will include
the proposed evaluation and, if applicable, the proposed combined
evaluation.

\(2\) **Initial Notice to the Veteran.** Notify the veteran at the
latest address of record of the proposed action, giving detailed reasons
for the action. The proposed date of reduction will be the last day of
the month in which a 60-day period from the date of notice to the
veteran of the **FINAL** rating action expires.

**9-II-1**

**M21-1, Part IV April 5, 2004**

**Change 197**

\(3\) **Response Time.** Give the veteran 60 days to present additional
evidence to show that compensation payments should be continued at their
present level. Do not include language about minimizing the overpayment,
as none will be created. If evidence received during this period
establishes a reasonable basis for reexamination, request the
examination. Do not take final action until the examination report has
been received and considered (pt. VI, par. 9.03a).

\(4\) **No Reply.** If no additional evidence is received within 60 days
and the veteran does not timely request a hearing, take final rating
action.

\(5\) **Evidence Provided or Hearing Requested.** If the veteran
presents new evidence or timely requests a hearing, within 30 days after
the date of the predetermination notice, the rating activity will not
prepare a final rating until the evidence is considered, the hearing is
held or the 60-day period elapses, whichever is later. If a reduction is
still warranted, the rating activity will take final rating action,
reducing the award effective the last day of the month in which the
60-day period expires after the veteran is notified of the **FINAL**
rating action.

\(6\) **Notice of Final Action.** Notify the veteran of the final rating
action, and explain that benefits will be reduced or discontinued
effective the last day of the month in which the 60-day period from the
date of notice to the veteran of the final rating decision expires.

b\. **Combined Reduction\--Increased Evaluation of Another Disability or
New Service-Connected Disability.** If one or more evaluations is
increased or service connection is granted for a new condition, but,
because of a reduction in the evaluation of another disability, the new
combined evaluation is reduced, award the increase from the applicable
effective date and follow the procedures above to propose the reduction
of the new combined evaluation.

c\. **Combined Evaluation Unchanged or Increased.** The provisions of 38
CFR 3.105(e) apply only to reduction of compensation. If an evaluation
of one or more service-connected disabilities is decreased but the
amount payable remains the same or is increased, do not follow 38 CFR
3.105(e) procedures.

d\. **No Running Award.** 38 CFR 3.105(e) applies **ONLY** if a lower
evaluation of a service-connected disability would result in a reduction
or discontinuance of compensation payments in a **RUNNING** award. If a
case is in suspense, reduction or discontinuance is effective DLP.

e\. **Withdrawal of Proposal to Reduce.** To withdraw a proposal to
reduce, prepare a rating confirming and continuing the prior rating. If
the Decision Review Officer withdraws the proposal, the Decision Review
Officer decision takes the place of the C&C rating.

**9.18 REDUCTION IN EVALUATIONCOMPENSATION (38 CFR 3.105(a))**

a\. **Error in Determination.** To reduce a service-connected evaluation
under 38 CFR 3.105(a), prepare a rating proposing the change. Cite all
material facts and the reasons for the proposed action. Use the legend
\"PROPOSAL TO REDUCE UNDER 38 CFR 3.105(a)and 3.105(e).\" Include the
proposed evaluation and, if applicable, the proposed combined
evaluation. The ratings of Rating Veterans Service Representatives
(RSVRs) must be signed by the VSCM or a supervisory designee not lower
than coach. The ratings of Decision Review Officers must be signed by
the VSCM or Assistant VSCM.

b\. **Procedures.** Follow the procedures in paragraph 9.17a as to
effective date, submission of evidence and a hearing. Follow paragraph
9.17e to withdraw the proposal, except that the VSCM or designee must
approve the C&C rating or the Decision Review Officer's withdrawal
decision.

c\. **Approval.** The final rating decision must be signed by the VSCM,
Assistant VSCM or supervisory designee not lower than coach, as
appropriate.

**9-II-2**

**April 5, 2004 M21-1, Part IV**

**Change 197**

d\. **Application.** The rating decision must be signed by the VSCM,
Assistant VSCM or supervisory designee not lower than coach, even if
benefits are not reduced. However, if the amount payable to the
beneficiary is unchanged or increased, predetermination procedures do
not apply.

**9.19 SEVERANCE OF SERVICE CONNECTION (38 CFR 3.105(d))**

a\. **Effective Date.** The effective date of severance of service
connection is the last day of the month in which a 60-day period from
the date of notice to the beneficiary of the **FINAL** rating action
expires.

b\. **Procedures.** Follow the procedures in part VI, chapter 9 even if
severance of service connection would not result in a reduction or
termination of benefits. See paragraph 25.02.

**9.20 \"NOT PT\" AND \"NO LONGER ENTITLED TO SPECIAL MONTHLY PENSION\"
CASES**

a\. **Predetermination Procedures**

\(1\) On receipt of a rating proposing to discontinue entitlement to
pension or special monthly pension, send the beneficiary a
predetermination notice.

\(a\) For \"Not PT\" cases, this notice **MUST** include the citation of
38 CFR 4.17, the regulation which sets forth the requirements for a
permanent and total disability evaluation.

\(b\) When furnishing locally generated notice, advise the veteran of
the proposed effective date as follows: \"Your present payment will
continue for 60 days to allow you to submit additional evidence. At the
expiration of that 60-day period (or after a personal hearing is held,
if VA receives such a hearing request from you within 30 days), all
available evidence in the file will be reviewed once more and a final
decision made. If this proposed decision to discontinue your (pension)
and (aid and attendance) (housebound benefit) entitlement is affirmed,
your payments will be (terminated) (reduced) at the end of the month in
which a final decision is made.\"

\(2\) As outlined in paragraph 9.08, control the case so that rating
action may be taken immediately at the end of the 60-day period.

b\. **Due Process Period Expires.** After the 60-day predetermination
period expires or all development associated with a personal hearing is
completed (if VA receives a hearing request from the beneficiary within
30 days of the predetermination notice), whichever is later, refer the
case to the rating activity for reconsideration.

c\. **Award Action and Notification of Final Decision.** Continue,
reduce or terminate pension benefits, as appropriate, on receipt of a
final rating decision.

\(1\) Send the veteran a letter which fully and clearly informs him/her
of the decision reached. If the proposed \"Not PT\" decision is
affirmed, the letter to the veteran must again contain the information
that appeared in the predetermination notice (par. 9.03b) plus the
paragraphs contained in exhibits B and C, *i.e*., procedural and
appellate rights.

\(2\) The provisions of 38 CFR 3.105(f), prohibit termination of a
pension award retroactively unless fraud is involved. If an award cannot
be completed in time to implement the effective date shown on the rating
decision prospectively, return the case to the rating activity for
preparation of a new decision with a later effective date.

**9.21 REVIEW OF A&A ENTITLEMENT FOLLOWING DISCHARGE FROM NURSING HOME
PATIENT STATUS**

a\. **On Receipt of Notice of Discharge from Nursing Home**

**9-II-3**

**M21-1, Part IV April 5, 2004**

**Change 197**

\(1\) **Review Evidence of Record.** On receipt (from the beneficiary or
any other source) of a notice of discharge from nursing home patient
status, promptly review the claims folder to determine if A&A status has
already been established by rating action or if there is medical
evidence of record which should be submitted to the rating activity.

\(2\) **Predetermination Notice.** If there is no pertinent medical
evidence of record or if the rating activity cannot grant A&A based on
the available evidence, write to the beneficiary.

\(a\) **Proposed Action.** Tell the beneficiary that entitlement to A&A
benefits must be reconsidered because he or she is no longer a nursing
home patient.

\(b\) **Evidence Needed.** Also tell the beneficiary that medical
evidence establishing a factual need for regular A&A and, if
appropriate, a current statement concerning the amount of continuing
unusual medical expenses must be furnished within 60 days from the date
of the letter. Advise that if such evidence is not received, payments
will be reduced or terminated.

\(c\) **Specific Notice.** In discussing the proposed effective date,
advise the beneficiary in the notice as follows: \"Your present payment
will continue for 60 days to allow you to submit additional evidence. At
the expiration of that 60-day period (or after a personal hearing is
held, if you request such a hearing within 30 days), all available
evidence in the file will be reviewed once more and a final decision
made. If our proposed action to discontinue your aid and attendance
entitlement is affirmed, your payments will be (terminated) (reduced) at
the end of the month in which the final decision is made.\"

**NOTE:** Predetermination notice is required even if the beneficiary
submitted the notice of discharge from the nursing home.

\(3\) **Simultaneous Development.** As outlined in paragraph 25.08g,
also attempt to obtain the necessary medical evidence directly from any
sources which may be of record.

\(4\) **Controls.** Establish a 65-day control in accordance with
paragraph 9.08.

b\. **No Medical Evidence Received Within Predetermination Period.** If
no medical evidence is submitted within 65 days, reduce or terminate
benefits, as appropriate. Fully and clearly inform the beneficiary of
the decision. This letter must again contain the elements that appeared
in the predetermination notice plus the paragraphs contained in exhibits
B and C, *i.e.*, procedural and appellate rights. Do not create an
overpayment in connection with the loss of A&A status (38 CFR 3.105(f)).

c\. **Effective Date.** If it is determined that there is no entitlement
to either A&A or housebound benefits, terminate the special monthly
pension effective the end of the month in which the authorization
activity completes the award action after the end of the
predetermination period (38 CFR 3.105(f)). If housebound status is
granted, the effective date will also be the end of the month in which
the authorization activity completes the award action after the
predetermination period ends. If benefits cannot be timely reduced or
terminated on the date cited to the beneficiary in the predetermination
notice, make the reduction or termination effective the end of the month
in which the award is completed.

d\. **Authorization Action Following a Rating Decision**

\(1\) **Action Pending When Control Period Expires.** If rating activity
action on the A&A issue is still pending when the predetermination
period elapses, extend the suspense date for the pending 600 end product
and continue payments until the rating action is completed.

**9-II-4**

**April 5, 2004 M21-1, Part IV**

**Change 197**

####  {#section-1 .unnumbered}

Jurisdiction for *De Novo* Review, Continued

+------------+---------------------------------------------------------+
| ##### VH   | > Use the table below to determine jurisdiction over    |
| A {#vha .u | > particular Veterans Health Administration (VHA)       |
| nnumbered} | > benefits.                                             |
|            |                                                         |
| ##### Be   |                                                         |
| nefits {#b |                                                         |
| enefits .u |                                                         |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+----------------------------------+-----------------------------------+
| When the appeal concerns ...     | Then jurisdiction falls under ... |
+----------------------------------+-----------------------------------+
| an adjudicative decision         | DRO or VSCM designee.             |
| affecting VHA benefits           |                                   |
+----------------------------------+-----------------------------------+
| a VHA Medical Activity medical   | VHA.                              |
| determination denying benefits   |                                   |
| for                              |                                   |
|                                  |                                   |
| -   clothing allowance           |                                   |
|                                  |                                   |
| -   automobile, and              |                                   |
|                                  |                                   |
| -   adaptive equipment, and      |                                   |
|     specially adapted housing    |                                   |
+----------------------------------+-----------------------------------+

35-A-5

**M21-1, Part IV April 5, 2004**

**Change 197**

####  {#section-2 .unnumbered}

#### Authority {#authority .unnumbered}

+------------+---------------------------------------------------------+
| ##### DRO  | > Subject to the limitations below, the DRO may         |
| Decisional |                                                         |
|  Authority | -   amend, reverse or modify a decision based on *de    |
|  {#dro-dec |     novo* review,                                       |
| isional-au |                                                         |
| thority .u | -   exercise single signature clear and unmistakable    |
| nnumbered} |     error (CUE) authority, or                           |
|            |                                                         |
|            | -   amend, reverse or modify a decision based upon new  |
|            |     evidence.                                           |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### DRO  | > The reviewer may grant a benefit in the claim but may |
| May Not Re | > not revise the decision in a manner that is less      |
| duce Unles | > advantageous to the claimant than the decision under  |
| s CUE {#dr | > review, unless CUE applies.                           |
| o-may-not- |                                                         |
| reduce-unl |                                                         |
| ess-cue .u |                                                         |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #          | The DRO must submit proposed and final rating decisions |
| #### VSCM' | for the approval and signature of the VSCM (or          |
| s Approval | Assistant VSCM) when CUE applies and the decision would |
|  of Decisi |                                                         |
| ons to Red | -   reduce a service-connected evaluation(s), or        |
| uce or Sev |                                                         |
| er When CU | -   sever service connection for a disability(ies).     |
| E Applies  |                                                         |
|            | > ***Note***: This policy should be followed even if    |
|            | > reduction of an evaluation or severance of service    |
|            | > connection would not result in the reduction or       |
|            | > termination of total benefits.                        |
+------------+---------------------------------------------------------+

Continued on next page

**35-A-6**

**April 5, 2004 M21-1, Part IV**

**Change 197**

####  {#section-3 .unnumbered}

Authority, Continued

+------------+---------------------------------------------------------+
| CUE        | > ***Important***: If the CUE involves a rating issue,  |
|            | > it is necessary for the DRO or Rating Veteran Service |
|            | > Representative (RVSR) to annotate the rating with a   |
|            | > certificate of error. ***Reference***: M21-1, Part    |
|            | > IV, 9.17.                                             |
|            |                                                         |
|            | > The table below describes how to respond to a CUE.    |
+------------+---------------------------------------------------------+

+-----------------------------------------------------------------------+
| > ***Note***: The DRO's decision must be signed by either the VSCM or |
| > AVSCM.                                                              |
+-----------------------------------------------------------------------+

+-------------------------+-----------------+-------------------------+
| When the ...            | And the ...     | Then ...                |
+-------------------------+-----------------+-------------------------+
| -   DRO proposes a CUE  | VSCM agrees     | -   the VSCM (or AVSCM) |
|     on a prior decision |                 |     signs the decision  |
|     which would         |                 |                         |
|                         |                 | -   the DRO signs the   |
| ```{=html}              |                 |     decision, and       |
| <!-- -->                |                 |                         |
| ```                     |                 | ```{=html}              |
| -   reduce a            |                 | <!-- -->                |
|     service-connected   |                 | ```                     |
|     evaluation, or      |                 | -   the person who      |
|                         |                 |     prepared the        |
| -   sever service       |                 |     original decision   |
|     connection for a    |                 |     gets a copy of the  |
|     disability(ies),    |                 |     revised decision.   |
|     and                 |                 |                         |
|                         |                 |                         |
| ```{=html}              |                 |                         |
| <!-- -->                |                 |                         |
| ```                     |                 |                         |
| -   prepares a decision |                 |                         |
|     to reduce or sever  |                 |                         |
+-------------------------+-----------------+-------------------------+
|                         | VSCM disagrees  | -   the VSCM states     |
|                         |                 |     his/her             |
|                         |                 |     disagreement on the |
|                         |                 |     decision            |
|                         |                 |                         |
|                         |                 | -   the DRO prepares    |
|                         |                 |     another decision    |
|                         |                 |     negating the CUE    |
|                         |                 |     and confirming the  |
|                         |                 |     prior decision, and |
|                         |                 |                         |
|                         |                 | -   both documents are  |
|                         |                 |     filed in the claims |
|                         |                 |     folder.             |
+-------------------------+-----------------+-------------------------+
| -   DRO finds a CUE on  |                 | -   the DRO signs the   |
|     a prior decision    |                 |     decision, and       |
|     which would *not*   |                 |                         |
|                         |                 | -   the person who      |
| ```{=html}              |                 |     prepared the        |
| <!-- -->                |                 |     original decision   |
| ```                     |                 |     gets a copy of the  |
| -   reduce a            |                 |     revised decision.   |
|     service-connected   |                 |                         |
|     evaluation(s), or   |                 |                         |
|                         |                 |                         |
| -   sever service       |                 |                         |
|     connection for a    |                 |                         |
|     disability(ies),    |                 |                         |
|     and                 |                 |                         |
|                         |                 |                         |
| ```{=html}              |                 |                         |
| <!-- -->                |                 |                         |
| ```                     |                 |                         |
| -   prepares a          |                 |                         |
|     decision.           |                 |                         |
+-------------------------+-----------------+-------------------------+

Continued on next page

**35-A-7**

**M21-1, Part IV April 5, 2004**

**Change 197**

Authority, Continued

  -----------------------------------------------------------------------
  **CUE** (continued)

  -----------------------------------------------------------------------

+-------------------------+-----------------+-------------------------+
| **When the ...**        | **And the ...** | **Then ...**            |
+-------------------------+-----------------+-------------------------+
| -   RVSR believes there | VSCM agrees     | -   VSCM (or            |
|     is a CUE, and       |                 |     supervisory         |
|                         |                 |     designee not lower  |
| -   prepares a decision |                 |     than a Coach) signs |
|                         |                 |     the decision, and   |
|                         |                 |                         |
|                         |                 | -   the person who      |
|                         |                 |     prepared the        |
|                         |                 |     original decision   |
|                         |                 |     gets a copy of the  |
|                         |                 |     revised decision.   |
|                         |                 |                         |
|                         |                 |     ***Note***: Even if |
|                         |                 |     the purported CUE   |
|                         |                 |     affects issues      |
|                         |                 |     under the RVSR's    |
|                         |                 |     jurisdiction, the   |
|                         |                 |     decision cannot be  |
|                         |                 |     promulgated until   |
|                         |                 |     the VSCM signs.     |
+-------------------------+-----------------+-------------------------+
|                         | VSCM disagrees  | -   VSCM states his/her |
|                         |                 |     disagreement on the |
|                         |                 |     decision            |
|                         |                 |                         |
|                         |                 | -   RSVR prepares       |
|                         |                 |     another decision    |
|                         |                 |     negating the CUE    |
|                         |                 |     and confirming the  |
|                         |                 |     prior decision, and |
|                         |                 |                         |
|                         |                 | -   both documents are  |
|                         |                 |     filed in the claims |
|                         |                 |     folder.             |
+-------------------------+-----------------+-------------------------+

+------------+---------------------------------------------------------+
| ##         | > In the absence of new and material evidence, the DRO  |
| ### BVA De | > is bound to follow a decision of the BVA in an        |
| cision Bin | > individual claim and may not recommend a change based |
| ding {#bva | > on *de novo* review authority. The decision of the    |
| -decision- | > BVA is binding on the issues that were decided by the |
| binding .u | > BVA based on the evidence before them.                |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### Mult | > A DRO may hold multiple informal conferences on the   |
| iple Infor | > same issue. Once the DRO assumes jurisdiction of a    |
| mal Confer | > case he/she should work in partnership with the       |
| ences {#mu | > claimant and representative to resolve all issues in  |
| ltiple-inf | > dispute.                                              |
| ormal-conf |                                                         |
| erences .u |                                                         |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

Continued on next page

**35-A-8**

**April 5, 2004 M21-1, Part IV**

**Change 197**

Authority, Continued

+------------+---------------------------------------------------------+
| #####      | > The DRO has no authority to participate in a formal   |
| No Authori | > hearing if he/she participated in the decision being  |
| ty in Subs | > reviewed. In other words, if the DRO makes a new      |
| equent Hea | > decision based on *de novo* review and the claimant   |
| ring Reque | > subsequently requests a formal hearing, the DRO does  |
| st {#no-au | > not have authority to conduct the formal hearing.     |
| thority-in |                                                         |
| -subsequen | > **[\[[38 CFR 3.103\]]{.underline}]{.mark}**           |
| t-hearing- |                                                         |
| request .u |                                                         |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #####      | > A visiting DRO may be requested to hold hearings or   |
| Visiting D | > conduct *de novo* review if the DRO at the host       |
| RO {#visit | > office participated in the decision being reviewed.   |
| ing-dro .u | > The visiting DRO will render a decision in such       |
| nnumbered} | > claims, but will not maintain jurisdiction of the     |
|            | > appeal.                                               |
|            |                                                         |
|            | > However, the VSCM at each RO has the authority to     |
|            | > grant based on a *de novo* review or CUE without      |
|            | > referral to the visiting DRO. The VSCM is not         |
|            | > permitted to delegate this authority to anyone else.  |
|            |                                                         |
|            | > ***Note***: When a specific delegation of this        |
|            | > authority is necessary, a written request must be     |
|            | > submitted to the Compensation and Pension Service.    |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #####      | > A DRO may not request or require that a claimant or a |
| No Deal {# | > claimant's representative withdraw a claim or take    |
| no-deal .u | > any other action in exchange for the granting of any  |
| nnumbered} | > benefit by the DRO.                                   |
|            |                                                         |
| ####       |                                                         |
| # Making { |                                                         |
| #making .u |                                                         |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

##  {#section-4 .unnumbered}

##  {#section-5 .unnumbered}

##  {#section-6 .unnumbered}

##  {#section-7 .unnumbered}

##  {#section-8 .unnumbered}

##  {#section-9 .unnumbered}

##  {#section-10 .unnumbered}

##  {#section-11 .unnumbered}

##  {#section-12 .unnumbered}

## 35-A-9 {#a-9 .unnumbered}

##   {#section-13 .unnumbered}

**M21-1, Part IV April 5, 2004**

**Change 197**

####  {#section-14 .unnumbered}

#### Duties of a DRO {#duties-of-a-dro .unnumbered}

+------------+---------------------------------------------------------+
| ####       | > A DRO serves as an integral member of the Appeals or  |
| # Duties o | > Rating Team, reporting to its Coach. Regional offices |
| f a DRO {# | > should follow the structure provided in the Claims    |
| duties-of- | > Processing Improvement model. The duties of the DRO   |
| a-dro-1 .u | > are listed in the table below.                        |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+-------+--------------------------------------------------------------+
| Task  | Description                                                  |
+-------+--------------------------------------------------------------+
| 1     | Holding informal conferences and hearings                    |
+-------+--------------------------------------------------------------+
| 2     | Evaluating the evidence of record including the need for     |
|       | additional evidence as a result of information obtained      |
|       | during the hearing                                           |
+-------+--------------------------------------------------------------+
| 3     | Making a decision                                            |
+-------+--------------------------------------------------------------+
| 4     | Making direct contact with claimants and their               |
|       | representatives                                              |
+-------+--------------------------------------------------------------+
| 5     | Preparing a decision document                                |
+-------+--------------------------------------------------------------+
| 6     | Providing feedback to each RVSR as to the cases handled and  |
|       | appealed without regard to whether the decision was          |
|       |                                                              |
|       | -   upheld                                                   |
|       |                                                              |
|       | -   reversed, or                                             |
|       |                                                              |
|       | -   modified                                                 |
+-------+--------------------------------------------------------------+
| 7     | Providing feedback to local management about                 |
|       |                                                              |
|       | -   trends                                                   |
|       |                                                              |
|       | -   general quality, and                                     |
|       |                                                              |
|       | -   areas in need of training                                |
+-------+--------------------------------------------------------------+
| 8     | Working together with station and service center management  |
|       | and staff to develop consistency and accuracy in first line  |
|       | decision making                                              |
+-------+--------------------------------------------------------------+

Continued on next page

**35-A-10**

**April 5, 2004 M21-1, Part IV**

**Change 197**

#### 

Duties of a DRO, continued

  -----------------------------------------------------------------------
  Duties of a DRO **(continued)**

  -----------------------------------------------------------------------

+-------+--------------------------------------------------------------+
| **T   | **Description**                                              |
| ask** |                                                              |
+-------+--------------------------------------------------------------+
| 9     | Performing Master Rating Specialist duties which include     |
|       |                                                              |
|       | -   acting as a resource for other employees, and            |
|       |                                                              |
|       | -   directing management of the appellate workload.          |
+-------+--------------------------------------------------------------+
| 10    | Playing a central role in employee development, which        |
|       | includes                                                     |
|       |                                                              |
|       | -   mentoring new rating specialists                         |
|       |                                                              |
|       | -   participating in the training of RVSRs                   |
|       |                                                              |
|       | -   coordinating training opportunities with the BVA, and    |
|       |     local medical centers, and                               |
|       |                                                              |
|       | -   providing feedback to C&P managers at all levels.        |
+-------+--------------------------------------------------------------+
| 11    | Certifying all appeals prior to transfer to BVA and          |
|       | coordinating the transfer of appeals to BVA.                 |
+-------+--------------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### DR   | > The DRO manages all VACOLS reviews.                   |
| O Responsi |                                                         |
| bility {#d | > On a time available basis, the VSCM may assign duties |
| ro-respons | > that are appropriate to the DRO's grade level and     |
| ibility .u | > position, provided such duties do not conflict with   |
| nnumbered} | > the DRO's status as an impartial and independent      |
|            | > decision maker.                                       |
|            |                                                         |
|            | > Additional duties may include                         |
|            |                                                         |
|            | -   expanding participation in training new RVSRs       |
|            |                                                         |
|            | -   ongoing refresher training                          |
|            |                                                         |
|            | -   providing WIPP reviews for a broader range of       |
|            |     issues than appeals, quality improvement reviews,   |
|            |     and                                                 |
|            |                                                         |
|            | -   conducting Systematic Analyses of Operation (SAOs). |
+------------+---------------------------------------------------------+

**35-A-11**

**M21-1, Part IV April 5, 2004**

**Change 197**

####   {#section-16 .unnumbered}

#### Making the Decision {#making-the-decision .unnumbered}

+------------+---------------------------------------------------------+
| #####      | > A ***de novo*** review is a new and complete review   |
| General {# | > of a claim with no deference given to the decision    |
| general .u | > being reviewed.                                       |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ####       | > The Informal Conference Report **(*Exhibit 3*)**      |
| # Informal | > serves as documentation of the informal conference    |
|  Conferenc | > and will be considered when making the new decision.  |
| e Report { | > It should describe                                    |
| #informal- |                                                         |
| conference | -   all the issues in detail (e.g., the veteran is      |
| -report .u |     > seeking a rating increase from 50% to 70% for     |
| nnumbered} |     > post-traumatic stress disorder),                  |
|            |                                                         |
|            | -   specific additional evidence required,              |
|            |                                                         |
|            | -   a summary of the discussion during the conference,  |
|            |     > and                                               |
|            |                                                         |
|            | -   the course of action agreed upon by the parties.    |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### De   | > DRO decisions (new rating decisions or SOC/SSOC) must |
| cision For | > identify all the issues and include                   |
| mat Requir |                                                         |
| ements {#d | -   a summary of the evidence,                          |
| ecision-fo |                                                         |
| rmat-requi | -   a citation of pertinent laws,                       |
| rements .u |                                                         |
| nnumbered} | -   a discussion of how those laws affect the decision, |
|            |     > and                                               |
|            |                                                         |
|            | -   a summary of the reasons for the decision.          |
+------------+---------------------------------------------------------+

Continued on next page

**35-A-12**

**April 5, 2004 M21-1, Part IV**

**Change 197**

####  {#section-17 .unnumbered}

Making the Decision, Continued

+------------+---------------------------------------------------------+
| #####      | > Because the DRO has jurisdiction over all aspects of  |
| Decision t | > the issue, the reasons and bases section of the new   |
| o Grant {# | > rating decision must be comprehensive and include a   |
| decision-t | > discussion of evaluations and effective dates as      |
| o-grant .u | > necessary.                                            |
| nnumbered} |                                                         |
|            | > The decision must include a statement that this is a  |
|            | > grant of all benefits sought on appeal, and that the  |
|            | > appeal is considered satisfied in full. Follow the    |
|            | > procedures in Chapter 8, *Appeals.*                   |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### Pa   | > The DRO may make a decision that grants the benefit   |
| rtial Gran | > in part but which **may** still require an SOC/SSOC.  |
| t {#partia |                                                         |
| l-grant .u | > In this case, the DRO will send the claimant the new  |
| nnumbered} | > rating decision and an SOC along with an Appeal       |
|            | > Status Election letter (***Exhibit 4***). The DRO     |
|            | > will make every attempt to contact the claimant       |
|            | > directly to explain his/her decision and the options  |
|            | > available.                                            |
|            |                                                         |
|            | > ***Example 1:*** Veteran files NOD with decision      |
|            | > denying increased rating for a knee condition. After  |
|            | > a review of the record, the DRO decides to grant a    |
|            | > partial rating increase. The DRO should prepare a     |
|            | > decision that will implement the rating increase, and |
|            | > an SOC. The SOC is required unless the claimant has   |
|            | > withdrawn the appeal.                                 |
|            |                                                         |
|            | > ***Note:*** If the claimant withdraws the appeal,     |
|            | > e.g., during an informal conference a SOC will not be |
|            | > necessary.                                            |
|            |                                                         |
|            | > ***Example 2:*** Veteran files NODs with two          |
|            | > decisions. The DRO decides to grant one of the        |
|            | > claims, but deny the other. The DRO will prepare a    |
|            | > decision that will implement the grant. The DRO will  |
|            | > also prepare a SOC for the claim that was denied.     |
+------------+---------------------------------------------------------+

Continued on next page

**35-A-13**

**M21-1, Part IV April 5, 2004**

**Change 197**

####   {#section-18 .unnumbered}

Making the Decision, Continued

+------------+---------------------------------------------------------+
| ##### Clai | > When a claimant indicates satisfaction with the       |
| mant Withd | > decision and a desire to withdraw his/her appeal, the |
| rawing NOD | > DRO will need to obtain written confirmation.         |
|  {#claiman |                                                         |
| t-withdraw | > If that confirmation is not received, the DRO will    |
| ing-nod .u | > issue a SOC, if he/she has not already done so.       |
| nnumbered} |                                                         |
|            | > ***Note:*** A claimant and/or their representative    |
|            | > may withdraw an appeal at any time, subject to the    |
|            | > restrictions of 38 CFR 20.204.                        |
|            |                                                         |
|            | > \[**[38 CFR 20.204]{.underline}**\]                   |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##         | > The DRO shall refer the decision to the appropriate   |
| ### Implem | > activity.                                             |
| enting the |                                                         |
|  Decision  | > A DRO's decision is final and binding on all VA field |
| {#implemen | > offices and is not subject to revision on the same    |
| ting-the-d | > factual basis, except by the BVA, or as provided      |
| ecision .u | > under 38 CFR 3.105(a).                                |
| nnumbered} |                                                         |
|            | > [\[**[38 CFR 3.105(a)]{.underline}**\]]{.mark}        |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #####      | > The DRO's decision will be sent with the notification |
| Notifying  | > letter which                                          |
| the Claima |                                                         |
| nt {#notif | -   notifies the claimant of the new or confirmed       |
| ying-the-c |     > decision,                                         |
| laimant .u |                                                         |
| nnumbered} | -   indicates what, if any, further action will be      |
|            |     > taken, and                                        |
|            |                                                         |
|            | -   identifies what steps the claimant must take such   |
|            |     > as completing the Appeal Status Notification      |
|            |     > Election and any time limits involved.            |
+------------+---------------------------------------------------------+

**35-A-14**

**April 5, 2004 M21-1, Part IV**

**Change 197**

####  {#section-19 .unnumbered}

#### Notice of Disagreement (NOD) and Statement of the Case (SOC) {#notice-of-disagreement-nod-and-statement-of-the-case-soc .unnumbered}

+------------+---------------------------------------------------------+
| ##### Hear | > When a hearing request is received with a NOD,        |
| ing Reques | > schedule the hearing before the claimant has been     |
| t with NOD | > provided with a SOC, **if** the claimant elected the  |
|  {#hearing | > DRO process. Schedule the hearing after the SOC has   |
| -request-w | > been issued for the traditional appellate method.     |
| ith-nod .u |                                                         |
| nnumbered} | > A SOC released prior to the hearing will contain a    |
|            | > notice that it is being sent before the scheduled     |
|            | > hearing date to enable the claimant to better prepare |
|            | > his/her case.                                         |
|            |                                                         |
|            | > ***Reference:*** Chapter 8, *Section B, SOC*          |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### Hear | > When a hearing request is received but a NOD has      |
| ing Reques | > **not** been filed, schedule a post-decisional        |
| t without  | > hearing before the DRO.                               |
| a NOD {#he |                                                         |
| aring-requ | > If, during the course of the hearing, the claimant    |
| est-withou | > expresses disagreement with the previously rendered   |
| t-a-nod .u | > decision, the DRO shall be responsible for both the   |
| nnumbered} | > DRO's decision and a SOC if the benefit sought is not |
|            | > fully granted.                                        |
+------------+---------------------------------------------------------+

**35-A-15**

**M21-1, Part IV April 5, 2004**

**Change 197**

####   {#section-20 .unnumbered}

#### Absence of the DRO {#absence-of-the-dro .unnumbered}

+------------+---------------------------------------------------------+
| ##         | > The VSCM of the station where the hearing is          |
| ### Acting | > scheduled may appoint an acting DRO during the        |
|  DRO {#act | > temporary absence or disqualification of the DRO.     |
| ing-dro .u |                                                         |
| nnumbered} | > The acting DRO                                        |
|            |                                                         |
|            | -   shall have considerable understanding of the issues |
|            |     that are the subjects of the hearing                |
|            |                                                         |
|            | -   shall not be less than a GS-12 except in            |
|            |     extraordinary circumstances, and                    |
|            |                                                         |
|            | -   cannot have participated in the decision being      |
|            |     reviewed.                                           |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ##### Un   | > The DRO is expected to hold all personal hearings     |
| usual or E | > covered under *Jurisdiction* *for De Novo Review* in  |
| mergent Ci | > this section.                                         |
| rcumstance |                                                         |
| s {#unusua | > The VSCM may assign a rating or authorization panel   |
| l-or-emerg | > (the members of which did not participate in the      |
| ent-circum | > decision) to hold a personal hearing in cases where   |
| stances .u | > the traditional appellate processing method has been  |
| nnumbered} | > elected by the claimant and in unusual or emergent    |
|            | > circumstances.                                        |
+------------+---------------------------------------------------------+

**35-A-16**

**April 5, 2004 M21-1, Part IV**

**Change 197**

#### 

#### Review by Central Office or VSCM {#review-by-central-office-or-vscm .unnumbered}

+------------+---------------------------------------------------------+
| ##### Re   | > On completion of a hearing, the DRO may               |
| quest for  |                                                         |
| Central Of | -   seek administrative review, or                      |
| fice Revie |                                                         |
| w {#reques | -   request an advisory opinion if additional evidence  |
| t-for-cent |     has been submitted.                                 |
| ral-office |                                                         |
| -review .u |     > In either instance, the submission must have the  |
| nnumbered} |     > concurrence of the VSCM.                          |
|            |                                                         |
|            | -   ***Reference***: For more information on            |
|            |     administrative reviews and submission to Central    |
|            |     Office, see Part IV, Chapter 7.                     |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| ####       | > The VSCM is responsible for the quality of decisions  |
| # VSCM Rev | > in the Veterans Service Center. This responsibility   |
| iew {#vscm | > extends to ensuring that decisions rendered by DROs   |
| -review .u | > properly apply all laws, regulations and              |
| nnumbered} | > instructions.                                         |
|            |                                                         |
|            | When the VSCM disagrees with the substantive decision   |
|            | of a DRO, he/she may request reconsideration but not    |
|            | direct a change in the decision. The VSCM may seek      |
|            | administrative review or administrative appeal.         |
+------------+---------------------------------------------------------+

+-----------------------------------------------------------------------+
| ***Exception***: The VSCM has the authority to direct a change in the |
| decision of a DRO when CUE is cited and the decision would            |
|                                                                       |
| -   reduce a service-connected evaluation(s), or                      |
|                                                                       |
| -   sever service connection for a disability(ies).                   |
+-----------------------------------------------------------------------+

35-A-17

**M21-1, Part IV April 5, 2004**

**Change 197**

####   {#section-22 .unnumbered}

#### Work Measurement {#work-measurement .unnumbered}

+------------+---------------------------------------------------------+
| ##### End  | > EP 174 is cleared for each *de novo* review, or CUE   |
| Product Co | > decision prepared by the DRO. EP 173 is taken by the  |
| des 173 an | > DRO for each informal conference held.                |
| d 174 {#en |                                                         |
| d-product- | > ***Note 1***: The informal conference report must be  |
| codes-173- | > annotated when the end product code is taken.         |
| and-174 .u |                                                         |
| nnumbered} | > ***Note 2***: EP 174 is still used for the            |
|            | > traditional hearing.                                  |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #####      | > DROs are responsible for                              |
| Work Measu |                                                         |
| rement {#w | -   maintaining an accurate record of actual hours      |
| ork-measur |     spent performing DRO duties at a different station  |
| ement-1 .u |     should such a need arise, and                       |
| nnumbered} |                                                         |
|            | -   preparing a report for the VSCM at the station      |
|            |     where service was performed.                        |
|            |                                                         |
|            |     > These stations will borrow or loan the            |
|            |     > corresponding amount of time. The DRO's time will |
|            |     > be charged against the cost center for the rating |
|            |     > activity.                                         |
+------------+---------------------------------------------------------+

+------------+---------------------------------------------------------+
| #####      | -   Completed end-product credit will continue to be    |
|  Work Meas |     recorded by the regional office having jurisdiction |
| urement En |     of the claim.                                       |
| d Product  |                                                         |
| Control  { | -   Maintain these reports under RCS VB-1, Part 1, Item |
| #work-meas |     13-005.000.                                         |
| urement-en |                                                         |
| d-product- |     > ***Reference***: RCS VB-1, Part I, Item           |
| control .u |     > 13-005.000.                                       |
| nnumbered} |                                                         |
+------------+---------------------------------------------------------+

**35-A-18**