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DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C.

204239

April 19, 2013 VBA Letter 20-13-05 Director (00) VA Regional Offices SUBJ: Guidance Regarding Special Initiative to Process Rating Claims Pending Over Two Years

Purpose
This initiative is the first in a series of efforts to address VA’s oldest claims. This letter focuses on those rating claims pending for over two years. Further guidance will be provided regarding claims pending less than two years. The intent of this initiative is to work all claims pending for more than two years within 60 days from the date of this letter. Regional Offices (RO) must immediately begin to process these claims based on the below guidance. For the claims at issue, this guidance supersedes all other guidance from other offices or personnel. It does not affect those claims that already require priority processing (Homeless, Terminally Ill, Medal of Honor recipients, Former POWs, and Fully Developed Claims).

Guidance for Processing Claims Pending More Than Two Years
Identifying Claims This guidance applies to claims received on or before July 1, 2011. The date of claim of the oldest pending claim in the file will be used to identify claims addressed under this special initiative. Use the Special Issue indicator “OCR – Old Claim Review” to identify these claims electronically in VETSNET Operations Reports (VOR). Follow the Brokering/Shipping Instructions provided in the enclosure. Use of RO Personnel ROs will devote all RVSRs and as many VSRs as are needed to ensure that all two-year old claims are processed within 60 days from the date of this letter.

Upon receipt of this guidance, immediately identify two-year old cases and develop an aggressive plan to complete these cases as soon as possible but no later than 60 days from the date of this letter. Rating Actions Raters will immediately begin to process two-year old rating claims and develop an aggressive plan based on the “available evidence” in the claims file. The rating decision produced will be considered a provisional rating unless ALL evidence in support of the claim has been received (and the claim is considered ready-to-rate) or the rating assigned provides the highest level evaluation authorized for the particular diagnostic code for each claimed issue. The End Product (EP) will be cleared for any rating completed as a result of this special initiative and no issues will be deferred on a rating decision. Category 1 Cases: ROs will issue rating decisions, as normal, for ready-to-rate cases that meet the two-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in VA’s Schedule for Rating Disabilities for each claimed issue. These will be FINAL decisions and appeal rights will be provided. Category 2 Cases: ROs will issue “provisional” rating decisions for other two-year old cases even if VA is still waiting for certain evidence. RVSRs will complete these claims based on the available evidence of record as long as the appropriate Section (§) 5103 notice (formerly VCAA notice) was provided to the claimant UNLESS the following requests for evidence are outstanding: • • • • Service Treatment Records (STRs) for original claims; VA medical records; Any evidence needed to establish Veteran status and/or pertinent service dates, if available evidence is not otherwise sufficient; VA examinations, if such exams are pending at the time the case is reviewed or if one is required in order to issue a decision.

The above minimal level of evidence must be available before a Category 2 rating is completed. Therefore, in order to meet the required completion date for these cases, ROs must expedite procedures to secure this evidence and decide the claim. In any Category 2 case where the RO is awaiting VA exam results, ROs will contact the appropriate VHA facility or contract examination provider to expedite completion of the required exam(s) so that a decision may be issued promptly. Only order a new exam when one is required to decide the claim. RVSRs will rate on the available Service Treatment Records (STR) of record, to include copies supplied by the claimant. If no STRs are of record or no STRs have been developed, immediately

develop for such records, and ensure they are available at the time of the rating (unless it is reasonably certain that such records do not exist or that further efforts to obtain those records would be futile). RVSRs should make a provisional decision based on the evidence of record. If required Federal records outside of STRs have not been received, issue the provisional decision and then request the Federal records. If private records have been requested only once, issue the provisional decision and then request the private records again unless it is clear a second request would be futile. Establish an EP 400 using the special indicator "OCR – Old Claim Review" to make the request for Federal and/or private records. RVSRs will accept Acceptable Clinical Evidence (ACE) evaluations where possible, and rate on the medical evidence of record in accordance with 38 C.F.R. § 3.326. Because the decision notification for Category 2 cases will inform claimants that a provisional decision has been made, it is not necessary to include such language in the rating document. In the “evidence” section of the Rating Decision, RVSRs will list all evidence considered, as normal. The RVSR will also list evidence identified but not available at the time of the provisional rating. No issue(s) will be deferred on a rating document. Other rating considerations for Category 2 claims: For claims falling within the provisions of this guidance, the prohibitions against certain partial rating decisions found in M21-1MR III.iv.6.A.1.b do not apply. RVSRs will grant entitlement to service connection for the claimed disability at the highest justifiable evaluation level of disability based upon the evidence of record, as warranted. One year from the date of notification of the provisional decision, ROs will assess all Category 2 claims and provide notice of a final decision to include appeal rights. Compensation Service will provide additional guidance in the future regarding procedures for the review of Category 2 cases after the one-year period has ended. Authorization Actions All Category 1 cases will be processed as normal. For Category 2 cases, the following procedures shall be followed: • Before promulgation of the decision, local Veterans Service Organizations will be given a full 48-hours to review the rating decision. In addition, a POC (and alternate POC) shall be

designated within the Veterans Service Center so that Service Officers can contact these individuals directly if they have questions or concerns.

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Upon promulgation of this provisional decision, clear the controlling EP. No appeal rights will be provided to the claimant since the decision rendered is considered a provisional decision. After one year (or earlier if the claimant requests), the claimant will be notified that the claim has become final and provided appeal rights. This only applies to cases worked under this special initiative. Important: Be sure that any reference to "final" decision or appeal rights notification that is generated automatically in the notification letter is removed. Diary the case for one year from the date of the decision. Establish Diary Reason 39 Review for Reevaluation. After the decision is issued, the completed claims should be added to the files sent immediately for scanning. Follow the shipping instructions set forth in the enclosure. If the claimant submits additional evidence or VA receives previously requested records within the one-year time period which allows a final decision to be made, VA will establish a new EP with a special issue “OCR – second review,” clear the diary, PCLR EP 400 if pending, and take the appropriate adjudicative actions. If all evidence is received at any time during the one-year period after the provisional decision is issued, take the appropriate adjudicative action and issue a final rating decision with appeal rights. In most instances, the effective date will go back to the date of claim of the earlier EP.

Decision Notification Criteria
The responsible party for preparing the decision notification for claims processed under this special initiative must include the following special language in the letter: “We have made a decision based on a special initiative to complete your pending claim. This is a provisional decision that is based on the evidence currently in VA’s possession. If you have additional relevant evidence pertaining to the issues decided here that you would like us to consider, please submit it to our office within one year of the date of this letter and we may reconsider our decision. If you want VA to obtain evidence that you previously told us about that was not available at the time of our decision, tell us and we may be able to obtain this evidence. If you want to receive a final decision with appeal rights before the one-year provisional period ends, send VA a signed statement as follows: “All necessary evidence was considered by VA. I request that this provisional decision be made final.”

STAR and QRT
Quality will continue to be assessed on decisions made under this special initiative. However quality will be measured based on the accuracy of the decision based solely on the evidence of record at the time the decision was made.

Questions
Questions concerning the new guidance found in this letter should be emailed to VAVBAWAS/CO/212A.

/S/ Allison A. Hickey Under Secretary for Benefits Enclosure: Brokering/Shipping Instructions

Enclosure – Brokering/Shipping Instructions
Purpose This document provides procedures for Regional Offices (RO) on brokering claims associated with the special initiative to process claims pending over two years. For more information on this initiative, reference VBA Letter 20-13-05. Guidance for Brokering and Processing Claims Pending More Than Two Years The Area Offices will identify and contact stations identified to receive the brokered claims associated with this initiative. The ROs brokering out cases for processing shall follow the existing procedures for brokering according to system of record (VETSNET/VBMS). The ROs receiving brokered cases shall use the following procedures for rating, promulgation, and authorization: • RVSR shall rate Category 1 and Category 2 brokered cases in accordance to VBA Letter 20-13-05. • VSRs shall promulgate rated brokered Category 1 and Category 2 cases according to the existing procedures for promulgation according to system of record (VETSNET/VBMS) • Authorizers shall follow authorization procedures for Category 1 and Category 2 cases in accordance to VBA Letter 20-13-05. • Authorized brokered cases will not be returned to the station of jurisdiction after completion. They will be forwarded to VCIP contractors for scanning upload to VBMS eFolders and long-term storage. ROs will ship to their assigned scanning vendor regardless of the brokered case’s SOJ. Guidance for Shipping Claims Pending More Than Two Years For all authorized brokered cases that need to be forwarded to VCIP contractors for scanning, stations should: • Establish an EP 400 in VBMS for each authorized brokered claim. • Suppress all automatically generated letters when establishing the EP 400 for authorized brokered claims. • After the 400 EP is established, PIF Cancel (PCAN) the EP before proceeding to the next step. Follow the steps in the VCIP Shipping Standard Operating Procedures (SOP), available on the VCIP TIP Sheet, for completed claims.