Title 20—Employees' Benefits--Volume 1
PART 261—ADMINISTRATIVE FINALITY
§ 261.1   Reopening and revising decisions.
(a) This part sets forth the Board's rules governing finality of decisions. After the expiration of the time limits for review as set forth in part 260 of this chapter, decisions of the agency may be reopened and revised under the conditions described in this part, by the bureau, office, or entity that made the earlier decision or by a bureau, office, or other entity at a higher level, which has the claim properly before it.
(b) A final decision as that term is used in this part means any decision of the type listed in § 260.1 of this chapter where the time limits for review as set forth in part 260 of this chapter or in the Railroad Retirement Act have expired.
(c) Reopening a final decision under this part means a conscious determination on the part of the agency to reconsider an otherwise final decision for purposes of revising that decision.
(d) New and material evidence as that phrase is used in this part means evidence that may reasonably be expected to affect a final decision, which was unavailable to the agency at the time the decision was made, and which the claimant could not reasonably have been expected to have submitted at that time.
§ 261.2   Conditions for reopening.
A final decision may be reopened:
(a) Within 12 months of the date of the notice of such decision, for any reason;
(b) Within four years of the date of the notice of such decision, if there is new and material evidence or there was adjudicative error not consistent with the evidence of record at the time of adjudication; or
(c) At any time if:
(1) The decision was obtained by fraud or similar fault;
(2) Another person files a claim on the same record of compensation and allowance of the claim adversely affects the first claim;
(3) A person previously determined to be dead on whose earnings record a survivor annuity is based is found to be alive;
(4) A claim was denied because of the absence of proof of death of the employee, and the death is later established:
(i) By reason of an unexplained absence from his or her residence for a period of 7 years; or
(ii) By location or identification of his or her body;
(5) The Social Security Administration has awarded duplicate benefits on the same record of compensation;
(6) The decision was that the claimant did not have an insured status, and compensation has been credited to the employee's record of compensation in accordance with part 211 of this chapter:
(i) To enter items transferred by the Social Security Administration which were credited under the Social Security Act when they should have been credited to the employee's railroad retirement compensation record; or
(ii) To correct an error made in the allocation of earnings to an individual which, if properly allocated, would have given him or her an insured status at the time of the decision and the evidence of these earnings was in the possession of the Railroad Retirement Board or the Social Security Administration at the time of the decision;
(7) The decision is wholly or partially unfavorable to a party, but only to correct clerical error or an error that appears on the face of the evidence that was considered when the determination or decision was made;
(8) The decision found the claimant entitled to an annuity or to a lump sum payment based on the earnings record of a deceased person, and it is later established that:
(i) The claimant was convicted of a felony or an act in the nature of a felony for intentionally causing that person's death; or
(ii) If the claimant was subject to the juvenile justice system, he or she was found by a court of competent jurisdiction to have intentionally caused that person's death by committing an act which, if committed by an adult, would have been considered a felony or an act in the nature of a felony;
(9) The claimant shows that it is to his or her advantage to select a later annuity beginning date and refunds, by cash payment or setoff, past payments applying to the period prior to the later beginning date, subject, however, to the provisions of subpart D of part 217 and § 218.9 of this chapter;
(10) The decision is incorrect because of a failure to apply a reduction, or the proper reduction, to the tier I component of an annuity, but the Board shall apply the reduction only for the months following the month the Board first takes corrective action.
(d) Revision of the amount or payment of a separation allowance lump sum amount pursuant to section 6(e) of the Railroad Retirement Act is limited to 60 days from the date of notification of the award of the separation allowance lump sum payment.
§ 261.3   Change of legal interpretation or administrative ruling.
A change of legal interpretation or administrative ruling upon which a decision is based does not render a decision erroneous and does not provide a basis for reopening.
§ 261.4   Decisions which shall not be reopened.
The following decisions shall not be reopened:
(a) An award of an annuity beginning date to an applicant later found to have been in compensated service to an employer under part 202 of this chapter on that annuity beginning date and who is found not to be at fault in causing the erroneous award; provided, however, that this exception shall not operate to permit payment of benefits for any month in which the claimant is found to be engaged in compensated service.
(b) An award of an annuity based on a subsequently discovered erroneous crediting of months of service and compensation to a claimant where:
(1) The loss of such months of service and compensation will cause the applicant to lose his or her eligibility for an annuity previously awarded;
(2) The erroneously credited months of service do not exceed six months; and
(3) The annuitant is found not to be at fault in causing the erroneous crediting.
(c) An erroneous award of an annuity where the error is no greater than one dollar per month per annuity affected.
(d) An erroneous award of a lump sum or accrued annuity payment where the error is no greater than $25.00.
§ 261.5   Late completion of timely investigation.
(a) A decision may be revised after the applicable time period in § 261.2(a) or § 261.2(b) of this part expires if the Railroad Retirement Board begins an investigation into whether to revise the decision before the applicable time period expires and the agency diligently pursues the investigation to the conclusion. The investigation may be based on a request by a claimant or on action by the Railroad Retirement Board.
(b) Diligently pursued for purposes of this section means that in view of the facts and circumstances of a particular case, the necessary action was undertaken and carried out as promptly as the circumstances permitted. Diligent pursuit will be presumed to have been met if the investigation is concluded and, if necessary, the decision is revised within 6 months from the date the investigation began.
(c) If the investigation is not diligently pursued to its conclusion, the decision will be revised if a revision is applicable and if it is favorable to the claimant. It will not be revised if it would be unfavorable to the claimant.
§ 261.6   Notice of revised decision.
(a) When a decision is revised, notice of the revision will be mailed to the parties to the decision at their last known address. The notice will state the basis for the revised decision and the effect of the revision. The notice will also inform the parties of the right to further review.
(b) If a hearings officer or the three-member Board proposes to revise a decision, and the revision would be based only on evidence included in the record on which the prior decision was based, all parties will be notified in writing of the proposed action. If a revised decision is issued by a hearings officer, any party may request that it be reviewed by the three-member Board, or the three-member Board may review the decision on its own initiative.
§ 261.7   Effect of revised decision.
A revised decision is binding unless:
(a) The revised decision is reconsidered or appealed in accord with part 260 of this chapter;
(b) The three-member Board reviews the revised decision; or
(c) The revised decision is further revised consistent with this part.
§ 261.8   Time and place to request review of a revised decision.
A party to a revised decision may request, as appropriate, further review of the decision in accordance with the rules set forth in part 260 of this chapter.
§ 261.9   Finality of findings when later claim is filed on same earnings record.
If two claims for benefits are filed on the same record of compensation, findings of fact made in a decision in the first claim may be revised in determining or deciding the second claim, even though the time limit for revising the findings made in the first claim has passed. However, a finding in connection with a claim that a person was fully or currently insured at the time of filing an application, at the time of death, or any other pertinent time, may be revised only under the conditions stated in § 261.2 of this part.
§ 261.10   Increase in future benefits where time period for reopening has expired.
If, after the time period for reopening under § 261.2(b) of this part has expired, new evidence is furnished showing a different date of birth or new evidence is furnished which would cause a correction in a record of compensation as provided for in part 211 of this chapter and, as a result of the new evidence, increased benefits would be payable, the Board will pay increased benefits, but only for the months following the month the new evidence is received.
§ 261.11   Discretion of the three-member Board to reopen or not to reopen a final decision.
In any case in which the three-member Board may deem proper, the Board may direct that any decision, which is otherwise subject to reopening under this part, shall not be reopened or direct that any decision, which is otherwise not subject to reopening under this part, shall be reopened.