CHAPTER 2.  REOPENED CLAIMS

 

CONTENTS

 

PARAGRAPH                                                                                          PAGE

 

SUBCHAPTER I.  GENERAL

 

2.01  Definition - Examples                                                                      2-I-1

 

2.02  Review by Adjudicator                                                                    2-I-1

 

2.03  Award or Disallowance                                                                    2-I-2

 

SUBCHAPTER II.  LIVE CLAIMS

 

2.04  Retired Pay, Readjustment and Disability Severance Pay                                           2-II-1

 

2.05  Cases Involving Vocational Rehabilitation, Education and Training (38 USC Ch 31)         2-II-1

 

SUBCHAPTER III.  DEATH CLAIMS

 

2.06  Pay Grade for DIC Awards                                                                         2-III-1

 

2.07  Survivor Benefit Plan (SBP)                                                                        2-III-1

 

2.08  Restoration of Benefits After Termination of Remarriage                                  2-III-1

 

SUBCHAPTER IV.  CLAIMS FOLDERS AT GENERAL COUNSEL PURSUANT TO A NOTICE OF APPEAL FILED WITH THE COURT OF VETERANS APPEALS (THE COURT) OR AT BVA

 

2.09  Determinations of Jurisdiction                                                           2-IV-1

 

2.10  Return of Claims Folders to Agency of Original Jurisdiction  .                            2-IV-1

CHAPTER 2.  REOPENED CLAIMS

 

SUBCHAPTER I.  GENERAL

 

2.01  DEFINITION - EXAMPLES

 

    a.  Definition.  Once an original claim is either granted or denied, any subsequent claim for benefits is a REOPENED claim.  A reopened claim may be a claim for a totally new or different benefit or a claim for a benefit that was previously denied or a claim for an increase in a benefit previously granted.

 

    b.  Examples of Reopened Claims

 

    (1)  A claim for service connection of a disability was previously denied by a rating decision.  A veteran submits new and material evidence regarding this disability and reopens the claim for service connection.

 

    (2)  A claim for service connection of a disability was previously granted but compensation was denied because of a 0% evaluation.  The veteran submits evidence of increased disability and reopens the claim for compensation.

 

    (3)  Same information as (2) but compensation was granted at 10%.  Submitting evidence of increased disability reopens this claim.

 

    (4)  Pension was denied due to excessive net worth.  The claimant submits revised net worth or expense information and reopens the claim for pension.

 

    (5)  Same facts as (4) but pension was terminated after claimant received benefits for a period of time.  Submitting new net worth or expense information also reopens this claim.

 

    (6)  Pension was granted and the claimant is receiving a monthly amount due to nonservice-connected disability or death.  Submitting a claim for an additional benefit, such as Aid and Attendance (A&A) or the Housebound allowance, reopens the claim.

 

    c.  Election.  An election is actually a claim for increased benefits and, therefore, is a reopened claim.  See paragraph 20.03.

 

    d.  New and Material Evidence.  Once a claim has been finally disallowed, it cannot be reopened unless there is new and material evidence.  See Part III, paragraph 1.06.  Letters to claimants should not casually refer to a claim as having been reopened unless new and material evidence has been submitted.  If a claimant has submitted evidence which is not both new and material, the denial letter must indicate that the claim is not considered to have been successfully reopened.

 

2.02  REVIEW BY ADJUDICATOR

 

    a.  The same procedure for original claims should also be used for reopened claims.  Check the application, if any, and all evidence.  See paragraph 1.05.

 

    b.  Since a reopened claim may not always consist of a new application, it may be necessary to go back to the original application and other records to obtain critical information.  Some things to watch for when working a reopened claim are:

 

    (1)  Was the veteran previously receiving military retired pay?  See paragraph 1.10.

 

    (2)  Is there a remaining disability severance pay balance?  See paragraph 1.10.

 

    (3)  Is pay grade verified for DIC claim?  See paragraph 1.16.

 

    (4)  Are all dependents included?  Is income information complete?

 

    (5)  Was the claimant previously entitled to A&A or Housebound allowance?

 

    (6) Is the surviving spouse receiving SBP annuity?  See paragraph 1.17.

 

    c.  A specific application form is not usually required to reopen a claim for benefits.  Sometimes, however, an application form is the best way to obtain all the information needed.  An application offers a concise format with instructions and certification and signature blocks.  The use of forms is advantageous in the following instances:

 

    (1)  VA Form 21-527, Income - Net Worth and Employment Statement.  To reopen a pension claim when a previous claim was denied because the veteran's disabilities did not permanently prevent gainful employment.

 

    (2)  VA Form 21-8940, Veterans Application For Increased Compensation Based On Unemployability.  To reopen a compensation claim for a total rating based on individual unemployability.

 

    (3)  VA Form 21-534, Application for Dependency and Indemnity Compensation or Death Pension by Surviving Spouse or Child.  To reopen a claim for death benefits when a surviving spouse's remarriage is void or has been annulled.  See paragraph 2.08a.

 

2.03  AWARD OR DISALLOWANCE

 

    For a reopened claim the process of requesting information from the claimant and other sources is the same as it is for an original claim.  If the reopened claim is for benefits involving disability, it must be reviewed and evaluated by the rating board.  Additionally, if the claimant received benefits which were terminated in the past because of a change in disability, such as no longer permanently and totally disabled or no longer in need of A&A, the reopened claim will require rating board review.  The final process in adjudicating a reopened claim is, as in an original claim, to grant or deny the benefits sought or a combination of grant and denial.

SUBCHAPTER II.  LIVE CLAIMS

 

2.04  RETIRED PAY, READJUSTMENT AND DISABILITY SEVERANCE PAY

 

    See paragraph 1.10.

 

2.05  CASES INVOLVING VOCATIONAL REHABILITATION, EDUCATION AND TRAINING

          (38 U.S.C. CH 31)

 

    a.  Claims Folder Flash (VA Form 22-6564).  Reverse file VA Form 22-6564, Claims Folder Flash - Vocational Rehabilitation Trainee, on the left flap (award section) of the claims folder for identification purposes if the veteran is in training under 38 U.S.C. chapter 31.  If the veteran is authorized an employment adjustment allowance or has been placed in a discontinued status, do not remove the VA Form 22-6564.  Annotate it to show the specific action, the date of discontinuance or completion of the authorized program and the total entitlement used for all periods of chapter 31 training prior to discontinuance or completion.

 

NOTE:  If there is a change in the evaluation for any service-connected condition, update the diagnostic information and percentages on the M33 Screen.

 

    b.  Simultaneous Review of Claims and R&E Folders.  In any case identified by VA Form 22-6564, other than rehabilitated or discontinued cases, obtain the R&E folder for review and necessary action, to include releasing a copy of any new rating to the VR&C Division.

 

    (1)  Changes in Disability Entitlement - General.  Any action increasing, reducing or discontinuing disability compensation to the veteran.

 

    (2)  Action Required in Paragraph 29 and in Certain Paragraph 30 Cases.  If a veteran in receipt of subsistence allowance (or crossover ch. 30 benefits under 38 U.S.C. 3108(h)) is entitled to a temporary total evaluation under a paragraph 29 or a paragraph 30 (see pt. VI, paras. 10.02 and 10.03) rating covering any period of hospitalization, adjust the subsistence allowance or crossover chapter 30 benefits effective the date of increase to the temporary 100-percent rate.  Refer the case to VR&C for immediate preparation of VA Form 28-1905, Authorization and Certification of Entrance or Reentrance into Rehabilitation and Certification of Status.  Process the compensation award and the chapter 31 award concurrently.  On discharge from hospitalization, whether or not posthospital convalescence is indicated, refer the case to VR&C for reestablishment of the subsistence allowance or crossover chapter 30 benefits.

 

    (3)  Action Required in Certain Instances of Reduction below 20 Percent.   Disability compensation being paid to a veteran previously determined eligible for chapter 31 has been suspended or stopped by reason of failure to report for physical examination, the veteran subsequently reports and his or her disability is found to be 10 percent disabling or less.  See part VI, par. 3.17a, concerning referral of a copy of the rating.

 

    (4)  Action Required for Dependency Changes.  The veteran is in training under chapter 31, and notice is received of any change in the status of his or her dependents.

 

    (5)  Individual Unemployability.  An initial claim for individual unemployability is either approved or denied.

 

    c.  Notification of Potential Eligibility for Vocational Rehabilitation.  See paragraph 1.11 for notification procedures.

SUBCHAPTER III.  DEATH CLAIMS

 

2.06  PAY GRADE FOR DIC AWARDS

 

    See paragraph 1.16.

 

2.07  SURVIVOR BENEFIT PLAN (SBP)

 

    See paragraph 1.17 and chapter 26, subchapter IV.

 

2.08  RESTORATION OF BENEFITS AFTER TERMINATION OF REMARRIAGE

 

    a.  Prior to November 1, 1990, the benefits of a surviving spouse or child could be restored after marriage if the marriage was terminated by death or divorce, or after inference of remarriage when the relationship no longer existed.  See paragraph 12.14a.

 

    b.  Effective November 1, 1990, the benefits of a surviving spouse or child cannot be restored after marriage unless the marriage is annulled or determined to be void.  Once an inference of remarriage of a surviving spouse is established, benefits cannot be restored if the relationship ends.  See paragraphs 12.14b and 12.19.

SUBCHAPTER IV.  CLAIMS FOLDERS AT GENERAL COUNSEL PURSUANT TO A NOTICE OF APPEAL FILED WITH THE COURT OF VETERANS APPEALS (THE COURT) OR AT BVA

 

2.09  DETERMINATIONS OF JURISDICTION

 

    a.  Claims Received After Transfer of Case to the BVA.  If a claim is received after the claims folder has been certified and sent to the BVA, take immediate action in accordance with paragraph 8.37a.

 

    b.  Claims Received After Transfer of Case to the OGC (Office of General Counsel) Pursuant to a Notice of Appeal Filed With the Court

 

    (1)  If a claim is received after the claims folder has been forwarded to the OGC, determine if it is related to the issue before the Court.  If it is, it cannot be processed.  Acknowledge receipt of the material, file it in the temporary folder and notify the OGC that material related to the appeal before the Court has been received and is being maintained at the regional office.

 

    (2)  Call the OGC (202-233-8500) if there is uncertainty about whether or not the claim is related to the issue under appeal.

 

    (3)  If the evidence does not relate to the issue before the Court, determine if it constitutes a claim.  If so, process the claim as expeditiously as possible.  If it can be processed based on information maintained in the temporary file, do so.  If additional information is needed, obtain the folder from OGC.  If transfer must be delayed, a folder extract may be requested.

 

    (4)  Despite the fact the claimant's appeal is before the Court, any newly received unrelated claim must be placed under control and acted on as soon as possible.  The Court has stated that undue delay on claims will not be tolerated.

 

2.10  RETURN OF CLAIMS FOLDERS TO AGENCY OF ORIGINAL JURISDICTION

 

    a.  Upon notification that an appeal to the Court has been filed, OGC requests the claims file from the regional office having jurisdiction.  OGC then refers the claims file to the BVA for designation of the record.  Upon return of the file from the BVA, OGC makes copies of the pertinent records for transmittal to the Court.  The claims file is retained by OGC until the Court makes a decision on the appeal.  If the appeal is remanded, the claims file is sent to the BVA.  If the appeal is summarily affirmed or dismissed, the claims file is returned to the regional office of jurisdiction.

 

    b.  If an unrelated claim is received, the regional office of jurisdiction may request the return of a file by faxing a request to PSG (Professional Staff Group) VII of the OGC at 202-233-8566.  The request shall include the claimant's name, claim number and the reason for requesting the file.  The attorney to whom the case is assigned will determine whether the file may be returned to the regional office immediately and, if so, whether the file must subsequently be returned to PSG VII.

 

    c.  If the attorney decides the file may not be immediately returned to the regional office, the requester will be advised of the reason for delay and of a date the file will be available.  As an alternative, the attorney may contact the requester to discuss the matter and determine the best course of action to take, e.g., fax copies of needed documents to the requester.