Page 1.

Director (00/21)

/ DEPARTMENT OF VETERANS AFFAIRS
Veterans Benefits Administration
Washington, D.C. 20420

June 07, 2013

Director (00/21) In Reply Refer To: 212

All VBA Regional Offices and CentersFast Letter 13-12

SUBJ: Section 5103 Notice Initiative

Purpose

This fast letter (FL) provides guidance for processing claims identified as part of the “Section 5103 Notice Initiative,” a one-time initiative that aims to expeditiously complete supplemental live compensation claims pending initial development.

Background

The Department of Veterans Affairs (VA) has identified approximately 180,000 supplemental live compensation claims pending initial development. In an effort to expedite the processing of these claims, VA Central Office (VACO) will deliver a special 38 U.S.C §5103 (formerly VCAA) notice (see enclosure) to each identified claimant. In this §5103 notice, VA will notify the claimant of the information and evidence needed to substantiate a disability compensation and/or related compensation benefit claim, eliminating the need for VA personnel to send an individualized §5103 notice to the claimant. The notice will also provide the claimant the option to have his or her claim processed based on the evidence of record. If the claimant elects this option, he or she will complete and return to VA the specific election attached to the notice. If, upon receipt of this election, the claim meets the other requirements stated in this letter, VA will expeditiously process the claim to issue a timely decision.

Central Office Actions

VACO will deliver a list of the claims identified as part of this initiative to each regional office (RO). For each claim on the list, VACO will ensure:

  • The special issue “5103 Waiver Review” is appended to the claim
  • The claimant is provided the special §5103 notice
  • A Veterans Benefits Management System (VBMS) eFolder is established for the claim, and a copy of the special §5103 notice is uploaded to it, and
  • A tracked item titled “5103 Waiver Review” is established in VBMS and the legacy system (MAP-D, Share), with a suspense date of 30 days from the date the special §5103 notice was sent to the claimant.

Regional Office Actions

ROs will process claims in this initiative in VBMS. Upon receiving the list of claims from VACO, the RO must identify any paper records associated with claims on the list, and immediately ship those records for scanning into VBMS. Refer to the VCIP Shipping SOP under the VCIP tab on the TIP Sheet Website for further instructions. Do not exclude any records on the list from shipping to the scanning vendor.

As a reminder, VACO will ensure a VBMS eFolder is already established for each claim under this initiative. No separate action by the RO, including the establishment of an end product in VBMS, is necessary under this initiative to establish a VBMS eFolder.

Note: VACO will stagger the delivery of the lists of claims identified as part of this initiative to ROs. Not all ROs will receive a list at the same time, and some ROs may receive multiple lists at differing times. This approach is to ensure that both ROs and the VBMS scanning vendors do not exceed shipping and scanning capacity.

Claims Processing

The RO must immediately review a claim labeled with the special issue “5103 Waiver Review” upon:

  • Receipt of a claimant’s election to have the claim processed based on the evidence of record, or
  • Expiration of the suspense date of the VACO-established tracked item.

Step 1: Determine Whether the Election was Received
If… / Then…
A claimant/representative-completed election, or equivalent, is received, indicating a desire to have the claim processed based on the evidence of record (including any evidence received along with the election) / Proceed to step 2.
  • An election, or equivalent, is not received, OR
  • An election is received on which the claimant/representative fails to indicate a desire to have the claim processed based on the evidence of record
/ • The claim does not meet the requirements for the Section 5103 Notice Initiative
• Follow procedures under Exclusion from the Section 5103 Notice Initiative to exclude the claim from the initiative.

Important Notes:

  • It is likely that VA will receive many claimant elections in VBMS. In the special §5103 notice delivered to the claimant as part of this initiative, the claimant is instructed, if he or she desires to have his or her claim processed based on the evidence of record, to:
  • Upload the election attached to the notice into eBenefits (which would subsequently upload to VBMS), or
  • Mail the election directly to the VBMS scanning vendor, or
  • Fax or email the election to the VBMS scanning vendor for direct upload to VBMS.
  • Take note of a claimant election on something other than the specific election attached to the special §5103 notice. Upon receipt of the equivalent of a claimant/representative-completed election, if there is no evidence indicating the claim was part of the Section 5103 Notice Initiative:
  • Follow procedures under Exclusion from the Section 5103 Notice Initiative to exclude the claim from the initiative, and
  • Send §5103 notice as appropriate.

Step 2: Determine Whether §5103 Notice is Necessary for the Claim
If the claimant… / Then…
Is only filing a claim for live compensation / • Do not send §5103 notice for the claim*
• Proceed to step 3.
*The claimant was provided §5103 notice for the claim for live compensation in the special §5103 notice.
Is filing anything other than solely a claim for live compensation (e.g. a pension claim in addition to the compensation claim) / • Send §5103 notice as needed for any claim that is not a live compensation claim.
• Follow procedures under Exclusion from the Section 5103 Notice Initiative to exclude the claim from the initiative.

Note: A claim for live compensation is defined as one of the following claim types:

  • Service connection (original, new, secondary, and reopened)
  • Service connection based upon a period of active duty for training or inactive duty training
  • Increased disability compensation
  • Individual unemployability
  • Temporary total disability rating due to hospitalization or due to surgical or other treatment
  • Compensation under 38 U.S.C. 1151
  • Increased benefits based on the need for aid and attendance or based on an additional disability or housebound status (SMC)
  • Specially adapted housing or special home adaption
  • Automobile allowance or adaptive equipment
  • Benefits based on a Veteran’s helpless/seriously disabled child (compensation only).

Step 3: Identify Exclusion Reasons
If… / Then…
Any of the following EXCLUSION REASONS apply to the claim:
• The claimant has an appeal pending at the time of receipt of the election and the claims folder is not located at the home RO (excluding the case of a paper claims folder located at the scanning vendor)
• The claim requires a character of discharge determination
• The claim requires development for records in the custody of the Veteran’s Guard/Reserve unit(s), or further evidence from the claimant or an identified private medical provider
• The claim requires any development beyond developing for:
  • Federal records in the custody of the Federal government
  • A VA examination.
/ Follow procedures under Exclusion from the Section 5103 Notice Initiative to exclude the claim from the initiative
Note: Do not exclude a claim from this initiative due to normal delays in obtaining evidence in Federal custody, e.g., verifying service in Vietnam, requesting service treatment or personnel records (other than Guard or Reserve records in the custody of the Veteran’s unit (s)), etc.
If… / Then…
The above exclusion reasons do not apply to the claim and the claim only requires development for (when applicable):
• Federal records in the custody of the Federal government
• A VA examination. / • The claim meets requirements for the Section 5103 Notice Initiative
• Process the claim expeditiously under this initiative. ROs should consider such a claim as similar to an FDC, and process it with a similar high-level priority.
• Proceed to Step 4.
Step 4: Develop the Claim
• Complete necessary development (develop for a VA examination, claimant-identified VAMC records, service records at RMC, new and material subsequent notice (see Exception 1 below), etc.)
• Proceed to Step 5.
Developing to the Claimant
For claims meeting the requirements for the Section 5103 Notice Initiative, DO NOT request from the claimant any information or evidence (e.g, when requesting records in Federal custody, do not also request these records from the claimant). The claimant, on the completed election, has already certified that he or she has enclosed all the information or evidence to support the claim or has no other information or evidence to give VA to support the claim.
Exception 1:
With a contention for which VA has previously denied service connection and for which the appeal period has expired (reopened claim), send the claimant a subsequent notice discussing new and material evidence specific for that prior denial. See Reopened Claims below.
Exception 2:
For claims meeting the requirements of the Section 5103 Notice Initiative, follow established procedures when Federal records are unavailable (see M21-1MR, Part I, Chapter 1, Section C.5.f). However, when providing oral or written notice as described under M21-1MR, Part I, Chapter 1, Section C.5.f., explain in the notice:
“We received your claim and your request to have the claim processed based on the evidence of record. Though you indicated you have no other information or evidence to give VA to support your claim, we are required to send you this notice. If you have information or evidence not previously submitted to VA that supports your claim, we recommend you submit it.”
Step 5: Identify Subsequent Exclusion Reasons
If… / Then…
Any of the following SUBSEQUENT EXCLUSION REASONS apply to the claim:
• The claimant fails to report for an examination and requests that VA reschedule the exam. (unless the fault for the missed exam is solely VA’s (e.g., VBA does not provide VHA the current address of record, VHA mails exam notice to an address other than the current address of record),
• A supplemental claim, additional evidence, or a notice of disagreement on any claim is received from the claimant after receipt of the election. / • The claim no longer meets the requirements of the Section 5103 Notice Initiative
• Follow procedures under Exclusion from the Section 5103 Notice Initiative to exclude the claim from the initiative.
If… / Then…
The above subsequent exclusion reasons do not apply to the claim / Proceed to Step 6.
Step 6: Expeditiously Complete the Rating Decision
When the claim is determined “Ready for Decision,” expeditiously complete the rating decision.
Step 7: Expeditiously Promulgate the Claim
Upon completion of the rating decision, expeditiously promulgate the decision.

Exclusion from the Section 5103 Notice Initiative

If a claim is determined to not meet or no longer meet the requirements for the Section 5103 Notice Initiative, take the following actions:

  • Remove the special issue “5103 Waiver Review,” if one exists.
  • Indicate in VBMS notes the specific reason for exclusion (see “Adding a Note to the Claim Details Screen” of the VBMS User Guide).
  • Send §5103 notice as needed for any claim that is not a live compensation claim.
  • If the claim involves a previous denial of service connection, see Reopened Claims below.
  • Process the claim routinely (standard claims processing); expedite if otherwise warranted.

Important Notes:

  • To aid ROs in identifying claims requiring expedited processing under this initiative, VACO will track new mail received. If no new mail is received on a claim within 45 days from the date the special §5103 notice was sent, VACO will assume no election was received and remove the special issue “5103 Waiver Review” from the claim.
  • To determine whether a claimant was provided the special §5103 notice in cases where VACO removed the special issue “5103 Waiver Review,” claims personnel must review the VBMS eFolder for a copy of the special §5103 notice provided the claimant. The tracked item in VBMS titled “5103 Waiver Review” is an indicator to review for the special notice.
  • Once VBMS, always VBMS. Continue to process any claim excluded from this initiative in VBMS. When processing the claim in VBMS, use legacy systems functionality only where VBMS functionality is not yet available.

Reopened Claims

If a claim involves a disability which has been previously denied service connection and for which the appeal period has expired (reopened claim), VA must comply with the notice requirements set forth in Kent v. Nicholson, 20 Vet.App. 1 (2006). For such a claim, send the claimant a subsequent notice containing the following paragraph:

“You were previously denied service connection for [contention VA previously denied]. You were notified of the decision on [date of previous denial]. The appeal period for that decision has expired and the decision is now final. In order for us to reopen your claim, we need new and material evidence. Your claim was previously denied because [reason(s) for previous denial, e.g., the disability was not shown in service]. Therefore, the evidence you submit must be new and relate to this fact.”

Send subsequent notice to a claimant attempting to reopen a claim containing the above paragraph, regardless of whether or not the claim meets the requirements of the Section 5103 Notice Initiative. For a claim that meets the requirements of the Section 5103 Notice Initiative, also insert the following paragraph into the subsequent notice:

“We received your claim and your request to have the claim processed based on the evidence of record. Though you indicated you have no other information or evidence to give VA to support your claim, we are required to send you this notice. If you have information or evidence not previously submitted to VA that supports your claim, we recommend you submit it.”

Continue processing the claim when sending this notice; order an examination or medical opinion, as applicable, and take any further needed action.

Lane Assignment

Process claims identified under this initiative in the appropriate lane, based on the contention type and/or number of issues.

National Call Centers (NCC)

Shortly after the release of this letter, the Benefits Assistance Service (BAS) will provide National Call Center (NCC) agents with telephone call scripts and other information regarding this initiative.

Questions

If you have any questions about this letter, please e-mail VAVBAWAS/CO/212A.

/S/

Thomas J. Murphy

Director

Compensation Service

Enclosures