1. What is The Veterans Claims Assistance Act of 2000?

<?fontfamily><?param Times New Roman>On November 9, 2000, the President signed into law P.L. 106-475, superseding<?color><?param 0100,0100,0100> the decision of the Court of Appeals for Veterans Claims in Morton v. West, which held that VA cannot assist in the development of a claim that is not well grounded. This law eliminates the concept of a well grounded claim, and redefines our duty to assist. In view of this new legislation, VBA Letter 20-99-60, Fast Letter 99-89, and Fast Letter 99-99 are rescinded.

P.L. 106-475 enables and defines VBA’s duty to assist claimants who file substantially complete claims for VA benefits. That statutory duty to assist includes:

<?paraindent><?param out>developing for all relevant evidence in the custody of a federal department or agency, including VA medical records, SMRs, Social Security Administration records, or evidence from other federal agencies,<?/paraindent>
<?paraindent><?param out>developing for private records and lay or other evidence,<?/paraindent>
<?paraindent><?param out>a duty to examine veterans or obtain a medical opinion if the examination or opinion is necessary to make a decision on a claim for compensation. <?/paraindent>

Compensation and Pension Service is developing proposed regulations to implement the new law. This letter is intended as guidance only for claims processing until those regulations are finalized.

<?fontfamily><?param Arial>2. How Does This Law Affect Claims Currently Pending And Those Received Before Implementing Regulations Are Final?

<?fontfamily><?param Times New Roman>We should review pending claims and new claims and apply the duty to assist criteria of the new law.

When an application is received, we should determine if it is substantially complete. In the interim period before a final regulation is effective, consider a substantially complete application to include:

<?paraindent><?param out>name,<?/paraindent>
<?paraindent><?param out>identifying service information,<?/paraindent>
<?paraindent><?param out>benefit claimed,<?/paraindent>
<?paraindent><?param out>disability(ies) for which the benefit is claimed in compensation claims,<?/paraindent>
<?paraindent><?param out>signature, and <?/paraindent>
<?paraindent><?param out>income information for pension claims.<?/paraindent>

If the application is not substantially complete, we should notify the claimant and the claimant’s representative, if any, of the information he or she needs to give us in order to complete the application. Our procedures regarding formal and informal claims (M21- 1, Part III, 2.01) have not changed for end product control purposes.

We may defer assistance in developing evidence if the application is not substantially complete.

If the application is substantially complete, the statute requires that we notify the claimant and the claimant’s representative, if any, of:

<?paraindent><?param out>any information or evidence including medical and lay evidence, that is necessary to substantiate the claim; and <?/paraindent>
<?paraindent><?param out>what information or evidence he or she is to submit to us, and <?/paraindent>
<?paraindent><?param out>what evidence we are going to attempt to obtain on the claimant’s behalf. <?/paraindent>

That notice should be in writing and should also request that the claimant give us information we need to help obtain supporting evidence. An example of such information would be a completed VA form 21-4142 so that we can request private medical records on behalf of the claimant.

That notice must also inform the claimant that if the information requested from the claimant to substantiate the claim is not received within one year from the date of the notice, no benefit may be paid on that application.

Note: Before forwarding any cases to the BVA we need to ensure that we have fulfilled our duty to assist as it exists under this new legislation.

<?fontfamily><?param Arial>3. How Does The Duty To Assist Affect Us When Requesting Non- Federal Records?

<?fontfamily><?param Times New Roman>The statute states that the Secretary shall make “reasonable efforts” to assist a claimant in obtaining the evidence necessary to substantiate a claim. Pending publication of a final rule, the determination as to what constitutes “reasonable efforts” will be based on the circumstances of the case. We believe that “reasonable efforts” to obtain documentary evidence that is not under the jurisdiction of a Federal department or agency would ordinarily require an initial request for such evidence, and at least one follow-up request if no response is received from the custodian of the records.

When requesting records from non-federal sources we should routinely allow 60 days for a response to our initial request. We should allow a minimum of 30 days for a response to our follow-up request.

At the time of the follow-up request, we should send a letter to the claimant advising that he or she is ultimately responsible for providing the evidence, but that we are making a follow-up attempt. We should also advise the claimant that if we are unable to obtain the requested evidence, we will process the claim based on the evidence of record.

We should make additional efforts to obtain the requested evidence where there is reason to believe that subsequent requests will result in obtaining the documents.

Documents encompassed within the scope of this development include medical records from all sources that the claimant adequately identifies. We should request that the claimant identify the type of record to be obtained, its custodian, the medical condition to which these records relate, and the approximate time frame covered by these records. These requirements apply to all types of records, other than service medical records. If necessary, the claimant must complete a medical release.

Note: The letter to the claimant sent at the same time as the follow-up request does not fulfill the duty to notify the claimant described in Paragraph 5 below. Accordingly, if the requested information is not received in response to the follow-up response, further notification as required in Paragraph 5 must be sent.

<?fontfamily><?param Arial>4. What if The Records Are Under The Jurisdiction of A Federal Department or Agency?

<?fontfamily><?param Times New Roman>Where the records requested are in the custody of a Federal department or agency, the statute obligates us to continue our attempts to obtain these records until we obtain them or until it is reasonably certain that the records do not exist, or that further efforts by VA to obtain them would be futile.

A conclusion that further attempts would be futile should be determined case by case based on the type of response we receive from the custodian of the record. We must receive a response from the custodian before assuming we have met our duty to assist. We can be reasonably certain that the records do not exist or that further attempts would be futile in cases where we receive a reply from the custodian of the records stating that it does not have the requested records and does not know where to obtain them.

Documents included within this provision of the statute include, but are not limited to:

<?paraindent><?param out>service medical records and other relevant identified records pertaining to the claimant’s active military, naval, or air service that are held by a governmental entity,<?/paraindent>
<?paraindent><?param out>records of relevant VA medical treatment or examination or treatment or examination at a non-VA facility if authorized by VA, provided the claimant adequately identifies the records and,<?/paraindent>
<?paraindent><?param out>any other relevant records held by any Federal department or agency that the claimant adequately identifies and authorizes us to obtain.<?/paraindent>

In claims for disability compensation the statute requires that we obtain all these records if relevant.

It is essential for us to frame our initial and follow-up requests for these records in a complete and specific way so that the necessary information, evidence or a negative reply is received.


<?fontfamily><?param Arial>5. What If We Are Unable To Obtain All The Relevant Records?

<?fontfamily><?param Times New Roman>If we have made reasonable efforts to obtain relevant non-Federal records, but have not received some or all of them, and/or we have concluded that it is<?fontfamily><?param Arial><?bigger> <?fontfamily><?param Times New Roman><?smaller>reasonably certain that further<?fontfamily><?param Arial><?bigger> <?fontfamily><?param Times New Roman><?smaller>efforts would be futile, the statute requires that we notify the claimant that we were unable to obtain the records. This notification should be sent after all development efforts have been exhausted. This notification must:

<?paraindent><?param out>identify the records we were unable to obtain,<?/paraindent>
<?paraindent><?param out>briefly explain the efforts we made to obtain those records, and<?/paraindent>
<?paraindent><?param out>describe any further action that we will take with respect to the claim including processing the claim based on the evidence of record. <?/paraindent>

<?fontfamily><?param Arial>6. When Should We Request An Examination or Opinion?

<?fontfamily><?param Times New Roman>In claims for disability compensation the statute requires that we assist the claimant by providing a medical examination or obtaining a medical opinion when the examination or opinion is necessary to make a decision on the claim. Pending publication of final regulations, we may consider an examination or opinion as necessary when, after we develop all other relevant evidence, including statements of the claimant, the file contains:

<?paraindent><?param out>competent medical evidence that the claimant has a current disability, or competent evidence that the claimant has persistent or recurrent symptoms of disability. A claimant is competent to describe symptoms of disability that he or she is experiencing, such as a pain in the knee; however, because a claimant ordinarily lacks medical training and experience, he or she would not be competent to diagnose his or her own medical condition or offer a medical opinion; and <?/paraindent>
<?paraindent><?param out>supporting evidence from service records or other sources that the claimant suffered an event(s), injury or disease in service that may be associated with the claimant’s current disability or symptoms of disability; but<?/paraindent>
<?paraindent><?param out>does not contain sufficient medical evidence for us to make a decision on the claim.<?/paraindent>

We should request a medical examination or opinion when it is necessary to make a decision on the claim, such as when the medical examination or opinion will address the final issue necessary to be resolved before determining whether the claim should be granted or denied. When seeking a medical opinion, it is essential to be very clear as to what information or opinion we are seeking in our request. We should send the claims file or excerpts of pertinent information from the claims file with the opinion request and direct the medical examiner to review it and provide a rationale for any opinion.

Attached to this letter are some sample case scenarios to provide a guide as to when an examination or opinion should be requested pending final regulations addressing this issue.

We do not need to request an examination or opinion if there is medical evidence of record that is adequate to rate the case.

<?fontfamily><?param Arial>7. What Happens with Cases Previously Denied As Not Well Grounded?

<?fontfamily><?param Times New Roman>If a claim was denied using the Morton procedures, the claimant has a right to request re-adjudication whether the denial or dismissal was by a regional office, the Board of Veterans' Appeals, the United States Court of Appeals for Veterans Claims, or the United States Court of Appeals for the Federal Circuit. This applies to any claim denied or dismissed which

<?paraindent><?param out>became final during the period beginning on July 14, 1999 (Morton v. West Decision), and ending on November 9, 2000, and
<?/paraindent><?paraindent><?param out>was denied or dismissed as not well grounded.<?/paraindent>

We will re-adjudicate these cases as if the denial or dismissal had not been made. A claim may not be re-adjudicated unless a request for re-adjudication is filed by the claimant, or a motion is made by the Secretary, no later than two years from November 9, 2000, the date of this Act. We are not required to initiate a special review to locate and re-adjudicate claims denied as not well grounded during this period in the absence of a timely request by the claimant. However, if such a case is discovered, our policy is to develop it and re-adjudicate it on our own initiative.

We should anticipate that claims previously disallowed as not well grounded will be reopened.

<?fontfamily><?param Arial>8. How Will We Control and Take Work Credit for Re-adjudicated Cases?

<?fontfamily><?param Times New Roman>The reconsideration requests stem from a change in the law. We should initiate review and development of these claims within 45 days of receipt of the request. The appropriate end product control for these requests is under the 020 series (i.e. 020, 024, 029).

To help track the re-adjudication requests, establish end product 684 to run concurrent with the end product 020. The date of claim on the EP 684 should be the same as the controlling end product and should remain pending until we take final action on the re- adjudicated issue. We will monitor the EP 684 data to assist in tracking the number of reconsideration claims received and the length of time it takes to resolve them. This additional end product is only for use with reconsideration of a claim denied as not well- grounded under the Morton procedures during the period beginning July 14, 1999 and ending October 19, 2000 (the date of the Under Secretary’s letter advising to discontinue Morton denials).

Note: The requirement and authority to take a one-time EP 684 credit to track Morton denials ended October 19, 2000.

<?fontfamily><?param Arial>9. How Do We Handle Pending Claims Developed Under Previous Guidelines?

<?fontfamily><?param Times New Roman>We will encounter many claims which were properly developed under guidelines in effect before this legislative change. We must ensure that the actions we took, to prepare a claim for a decision, conform with the duty to assist guidelines explained in this letter. If we have all the evidence that is necessary to substantiate the claim, we have complied with our duty to assist. If we do not have all of the evidence the claimant identified, we must make the reasonable efforts, as explained in this letter, including the notice requirements, before making a decision on the claim.

If our review identifies a need for additional development, take action to request the evidence. Continue controlling the claim under the existing end product. To help us track the impact of rehabilitating these claims, establish end product 690 to run concurrently with the controlling end product. The date of claim for EP 690 should be the date of the change in law, November 9, 2000, and should remain pending until you take final action on the rehabilitated claim. This additional end product is only for use on claims where initial development action was taken prior to the date of this letter.

Note: The requirement and authority to take a one-time EP 684 credit to track Morton denials ended October 17, 2000. This letter supersedes any other directive regarding use of EP 690. EP 690 may only be used to track claims requiring rehabilitation due to this legislation, as discussed above.

<?fontfamily><?param Arial>10. When Can We Expect Further Information Concerning Our Duty to Assist?

<?fontfamily><?param Times New Roman>Compensation and Pension Service will be working hard to incorporate this new legislation into our regulations and manuals. C&P Service will work with our stakeholders to assure the proper implementation of this Act and will provide further information as it is developed. In the interim, we should err on the side of caution and examine veterans or request opinions where we are unsure of the need for such examination or opinion. A conference call and/or satellite broadcast will be scheduled shortly to discuss this new legislation in further detail.

Questions regarding our duty to assist should be submitted to the Q&A mailbox at VAVBAWAS/CO/21Q&A by the station Question Coordinator. (Fast Letter 99-126).

The implementation of P.L. 106-475 is going to be very challenging for all of VBA and is an opportunity for us to show our commitment to serving veterans. This new legislation may not only mean that cases pending and completed in the past year will have to be re-worked by those of us in the Service Center, but the increase in our workload due to these claims will also have an impact on veterans, medical center employees, and service officers. However, we need to remember that this legislation is intended to afford every veteran the opportunity to establish entitlement to benefits and this is what our mission is all about.

This letter will be rescinded November 1, 2001.


/S/

Robert J. Epley, Director
Compensation and Pension Service




<?center>VA Examination/Opinion Guides<?/center>

The following are some sample case scenarios that may be helpful in determining when to request a medical examination or opinion, pending publication of a final regulation.


1. Service medical records for a peace time veteran show an acute situational reaction treated in service related to his divorce followed by treatment for anxiety. Post-service treatment records show mental health counseling for family problems and for depression. Ten years after discharge, as shown by the evidence, he was diagnosed with paranoid schizophrenia. He claims that the treatment in service was for beginning manifestations of this schizophrenia.

Examine? Yes. There is evidence of treatment for a psychiatric condition in service, and competent evidence of a current medical condition. There is also evidence that between the time of discharge and the present, the veteran was treated for psychiatric conditions. The issue of whether the condition in service may be associated with the current condition, or was the onset of the current diagnosis of paranoid schizophrenia is a medical question that requires either a medical opinion upon review of all the evidence of record and, if necessary, a VA examination.


2. Service medical records for a Korean veteran show that he sustained a back strain during service in 1951, and had subsequent treatment for chronic low back pain. He was honorably separated in 1953, with the condition noted as resolved. Medical evidence of record shows that in 1980 he sustained a lumbosacral strain while lifting boxes at work. In 1990, an L4-5 discectomy is performed. Current medical evidence shows a diagnosis of postoperative residuals of L4-5 discectomy with degenerative changes. The veteran alleges that the current back problem had its onset in service.

Examine? Yes. There is evidence of an in-service incurrence, a competent evidence of a current condition, and evidence of treatment between the time of discharge and the present. The issue of whether the current condition is associated with the in-service condition or is possibly associated with the work-related injury would necessitate either a request to the examiner for a medical opinion on this issue or an opinion with an examination of the veteran, depending on the evidence of record as to the current status of the back condition.


3. Service medical records for a Vietnam veteran show complaints of gastric distress and gastrointestinal complaints, and indicate that she was treated with Tagamet. Service medical records indicate that the condition was resolved. Post-service medical records contain several entries showing treatment for various gastrointestinal complaints over the past 20 years, with a current diagnosis of gastroesophageal reflux disorder. The veteran files a claim for service connection for a gastrointestinal condition, unspecified.

Examine? Yes. There is evidence of a gastrointestinal complaints in service, even though at discharge they were noted to be resolved. There is also competent evidence of a current condition involving the digestive system. In addition, there is evidence of continuity of symptoms indicating that it is possible that the current condition may be associated with the condition noted in service.


4. Service medical records for a Vietnam veteran show complaints of gastric distress and gastrointestinal complaints, and indicate that she was treated with Tagamet. Post- service medical records contain no evidence of treatment for any gastrointestinal condition. The veteran files a claim for service connection for an ulcer. Full development results in no medical evidence showing a current diagnosis of an ulcer.

Examine? No. There is no competent evidence of a current condition, lay or medical. The veteran is not competent to diagnose an ulcer; that is a medical diagnosis for which the statute requires competent evidence. If development had uncovered competent evidence, lay or medical, then an examination would be warranted in this case.


5. Veteran submits a claim five years after discharge from military service for chronic left hip pain. He states that he served as an airborne ranger participating in multiple parachute drops. He indicates that he landed awkwardly, injuring his left hip but did not seek medical treatment, rather completing the field exercise. He indicates that afterwards he continued to feel discomfort particularly following subsequent jumps but did not seek treatment. He reports continuing discomfort which he treats with over the counter medications. He also submits a statement from his wife testifying that he had continued to complain of hip pain since service and that he had quit jogging because of his hip complaints. Service medical records do not show treatment for a hip condition. However, service personnel records do document duty as an airborne ranger and confirm participation in twenty parachute drops.

Examine? Yes. There is credible evidence of an in-service event based on the veteran’s testimony and documented nature of duty (participation in multiple parachute drops). There is credible evidence of persistent symptomatology based on the veteran’s and his wife’s testimony. Examination should include a request that if a current chronic condition is diagnosed, the examiner should provide a medical opinion as to whether or not the current disability is related to a history of multiple parachute drops.


6. Service records show the veteran was a POW. There is competent evidence of a current POW-related presumptive condition.

Examine? Yes. There is an event in service and a condition, that by regulation, may be presumptively associated with that event in service.