References: For additional information on effective dates for claims based on receipt of additional service records, see , 26 Vet.App. 550, 554 (2014), and effective dates and reconsidering the merits of claims based on additional service records, see , 24 Vet. App. 273 (2011). e. Procedures for Rating Activity Review All additional non-duplicate service records received at any time after VA makes a decision on a claim shall be forwarded to the rating activity for review. See the table below for actions to take when reviewing the additional service records. If service records... Then the rating activity must ... do not require reconsideration of the merits of a previous claim Example: Military dental records are received five years after a previous rating decision awarded SC for hypertension, low back strain, and hearing loss. No formal rating is required. indicate “no action necessary” on VA Form 21-6789, Deferred Rating Decision. End product (EP) 699 will be cleared. require reconsideration of the merits of a previously claimed issue(s) Example: Additional STRs received indicate treatment from a private doctor while the Veteran was on leave during active duty. Several issues were previously denied SC in two separate rating decisions. All of these issues must now be reconsidered in a formal rating decision. complete a formal rating decision under EP 020 and include all pertinent issues that warrant reconsideration. contain a chronic unclaimed condition refer the claim to authorization activity to solicit a claim. Reference: For more information on soliciting a claim, see M21-1, Part IV, Subpart ii, 2.A.1.f. 3. Reopening a Previously Denied Claim Based on New and Material Evidence
Evidence Determination the date of the original denial notification of that denial receipt of the evidence submitted to reopen the claim finding that the evidence was not considered to be new and material notification of that decision, and the evidence submitted. l. Effective Date for Reopened Claims on New and Material Evidence A claim that is reopened based on new and material evidence and awarded is generally effective the date of receipt of claim or the date entitlement arose, whichever is later. See for more information. Example: VA issues a rating decision on March 1, 2010 denying SC for hypertension because there was no evidence of a current disability. On July 3, 2014, the Veteran submits new and material evidence that revealed the existence of hypertension as of June 2014. In this case, SC is awarded and the effective date, pursuant to , is established as of the date of the receipt of the reopened claim, which is July 3, 2014. Important: If was an intent to file associated with a reopened claim, the effective date may be the date the intent to file was submitted per . m. Effective Date for Revisions Based on New and Material Evidence Within the Appeal Period When new and material evidence other than service department records is received within the appeal period or prior to an appellate decision, as provided by , and the pending claim is reconsidered and SC awarded, the effective date will be as though the former decision had not been rendered. See and M21-1, Part III, Subpart iv, 2.B.3.a for more information. Example 1: VA issues a rating decision on 1, 2010 denying SC for a claim for hypertension, which was received on December 2, 2009. On May 5, 2010, the Veteran submits new and material evidence, which results in VA awarding SC for hypertension. Because the claim is still open, (i.e., “pending” in accordance with ), the evidence is considered as having been filed with the prior pending claim and, thus, an earlier effective date of December 2, 2009 is warranted based on the provisions of . Example 2: VA issues a rating decision on March 1, 2010 denying SC for hypertension. On May 5, 2010, the Veteran requests reconsideration and submits evidence for the hypertension issue that is not considered new and material evidence. In this case, VA issues a decision on its merits that continues the denial of SC for hypertension.
f. Applying the Benefit of the Doubt Under 38 U.S.C. 5107(b) The benefit of the doubt under is not applicable to a CUE determination since an error either undebatably exists, or there was no error within the meaning of . Reference: For more information on applying the benefit of the doubt under , see , 3 Vet. App. 310 (1992). g. Approval of Ratings Prepared Under 38 CFR 3.105(a) All rating decisions prepared under require the approval of the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM), or designee at the Coach level or higher. Ratings prepared by DROs require the approval of the VSCM, PMCM, or Assistant VSCM or PMCM if they address severance of SC, or a reduction in evaluation of an SC disability(ies). Exception: Approval of the VSCM, PMCM, or designee is not necessary if the rating decision is the result of a BVA or CAVC decision. h. Preparing a CUE Decision Use the table below to prepare a CUE decision If… And… Then… a DRO finds a CUE on a prior decision prepares a draft decision that proposes on the basis of the CUE to reduce an SC evaluation, or sever SC for a disability the VSCM or PMCM agrees the DRO finalizes and signs the decision, and the VSCM or PMCM (or designee) signs the decision. a DRO a CUE on a prior decision prepares a draft decision that proposes on the basis of a CUE to the VSCM or PMCM does not agree the VSCM or PMCM documents his/her disagreement on VA Form 21-0961, Rating Decision/Administrative Decision/Formal Finding/Statement of the Case (SOC)/Supplemental Statement of the Case
Introduction This contains information on determining jurisdiction for BVA determinations, including determining jurisdiction for review of a CUE allegation, and finality of BVA decisions. Change Date June 25, 2015 a. Determining Jurisdiction for Review of a CUE Allegation Whether a decision was appealed to BVA or not determines the jurisdiction for review of a CUE allegation, either in fact or in substance. Use the table below to determine who has jurisdiction to review an allegation for a CUE determination, and how to notify the claimant. If … Then the RO … And the Veterans Service Representative (VSR) or RVSR … a decision has been affirmed by BVA does not have jurisdiction to review the claim for a CUE determination Rationale: The RO does not have jurisdiction to consider a claim of CUE in a decision that has been subsumed by a BVA decision. notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that is desired. the decision was not appealed, but a later reopened claim was followed by a BVA affirmance does not have jurisdiction to review the claim for a CUE determination Rationale: The General Counsel has concluded that the RO does not have jurisdiction to consider a CUE claim where BVA has reviewed the entire record of the claim following reopening, and notifies the claimant that the RO does not have jurisdiction to review the claim for a CUE determination of his/her appellate rights, and that he/she should file a motion for reconsideration by BVA, if a review at that is desired.