VA Fast Letter on Vazquez-Flores v. Peake, VCAA

DEPARTMENT OF VETERANS AFFAIRS Veterans Benefits Administration Washington, D.C. 20420
September 16, 2008

Director (00/21)
All VA Regional Offices and Centers Fast Letter 08-26


SUBJECT: Vazquez-Flores v. Peake and New Veterans Claims Assistance Act (VCAA) Notification Requirements

This fast letter contains guidance on new notification requirements in claims for increased disability compensation. This letter supercedes any prior guidance regarding notification procedures resulting from a decision issued by the United States Court of Appeals for Veterans Claims (the Court) in Vazquez-Flores v. Peake on January 30, 2008.

Vazquez-Flores v. Peake created additional notice requirements for claims based on increased evaluation. The Court found that 38 U.S.C. § 5103(a) requires that VA notify the claimant of the following:

Medical or lay evidence that the claimant must provide, or ask VA to obtain, demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;
At least general notice of the diagnostic code (DC) criteria, including any specific test or measurement with any applicable cross-referenced DC under which the veteran may be rated, if the requirements for an increase in evaluation would not be satisfied by a noticeable worsening or increase in severity of the disability and the effect that worsening has on employment and daily life;
A disability evaluation is determined by applying relevant DCs, which range typically between 0 percent to as much as 100 percent, and is based on the nature of the symptoms for which disability compensation is sought, their severity and duration, and their impact upon employment and daily life; and
Examples of the types of medical and lay evidence that are relevant to establishing entitlement to increased compensation (such as competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to it).
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Notification Requirements in Claims for Increased Evaluation

The section of the current VCAA notice titled How VA Determines the Disability Rating meets the Court’s requirements for the third and fourth elements stated above. However, as explained below, regional office (RO) personnel must modify this section further in order to comply with the first and second elements. For the first element, the current VCAA notice is not compliant with the Veterans Court's decision because it does not mention the need to submit evidence showing the effect of the worsening of the disability on the veteran's daily life. VA is litigating the second element regarding notice of the DC rating criteria.

Effective immediately, when providing initial VCAA notification in claims for increased evaluation, veterans service representatives (VSRs) must delete the current section, How VA Determines the Disability Rating. They must replace it with the revised section of the same title contained in Enclosure 1.

VSRs must also provide the complete DC rating criteria under which the disability is currently rated, and any criteria in a DC cross-referenced in the currently used DC. A cross-referenced DC is another four-digit DC noted within the DC criteria at issue, the criteria of which provides an alternate means to evaluate the disability. Provide the DC criteria even if the claimant appears to be rated at the schedular maximum. Attach the DC criteria at the end of the letter, after the VCAA Notice Response. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided to the claimant. See the attached RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Refer any questions concerning DCs or cross-references to a rating veteran service representative (RVSR). The RVSR may subsequently evaluate the disability under a different DC without providing additional notice, but should fully explain the reasons for using a different DC. See Enclosure 6 for a diagram of this process.

Appeal Notification Requirements

When the claimant files an appeal in response to a decision regarding an increased evaluation, the RO will cure any notice defect during the appeal. (Note that the requirements of Vazquez-Flores do not apply to appeals of increased evaluation resulting from initial grants of service connection i.e., when the evaluations are downstream issues. Please see the enclosed Vazquez-Flores Questions and Answers for more information.) As with claims notification, identify and print the complete diagnostic code (DC) criteria, with any cross-referenced DCs, under which the disability at issue is currently rated.


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Provide the DC criteria even if the appellant appears to be at a schedular maximum. Attach the DC criteria in all appeal cure notices after the appropriate notice response. See Enclosures 7 to 9 for diagrams of the basic steps for curing the notice defect for the appeal stages. See the RBA2000 Rating Schedule Help Tool instructions on printing the DC criteria. Be sure to include for the claims record (whether paper or electronic) copies of all DC criteria provided. The decision review officer (DRO) or RVSR may subsequently evaluate the disability under a different DC without providing additional notice, but should fully explain the reasons for using a different DC.

Notice of Disagreement

After receiving a notice of disagreement (NOD), simultaneously prepare the appeal process election letter and a separate appeal cure notice, if not previously provided. See Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation. Include with the notice Enclosure 3, Vazquez-Flores Notice Response. The 30-day response period for the cure notice may run concurrently with the 60-day appeal election response time.

If the appellant elects the DRO process in the NOD, send the appeal cure notice and allow 30 days for a response.

Statement of the Case

Prior to issuing a statement of the case (SOC), determine whether VA previously provided the appeal cure notice. If not, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Unless the appellant waives that response time, after 30 days, if no evidence is submitted or the evidence submitted does not result in a full grant, refer the appeal to the DRO or RVSR to issue the SOC.

Supplemental Statement of the Case

If additional evidence is received after the SOC and the appeal cure notice was not previously provided, send Enclosure 2 and include the Vazquez-Flores Notice Response. Allow the appellant 30 days to respond to the cure notice. Then, refer the appeal to the DRO or RVSR for the supplemental statement of the case (SSOC).

Travel Board Hearings
After receipt of the VA Form 9, Appeal to Board of Veterans’ Appeals, the appellant may request a local hearing before the Board of Veterans’ Appeals (BVA) Travel Board or via videoconference. Do not reschedule, postpone or otherwise cancel a videoconference or
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Travel Board hearing strictly because of any Vazquez-Flores notice issue. For hearings scheduled in the near future, the RO should screen its Travel Board cases for appeals of
increased ratings and, if a cure letter was not sent but required, send Enclosure 2 with Enclosure 3, the Vazquez-Flores Notice Response.

Follow the cure notice with re-adjudication of the appeal in the form of an SSOC. To emphasize that the appellant may waive the 60-day response time, on the SSOC cover letter, under the section titled I already filed a formal appeal, place in bold font the last sentence that reads, If you do not wish to respond, and you do not want us to wait for the full 60 days to expire, you can write to us and let us know that.

If a Travel Board hearing is currently scheduled, but the appellant does not have the full time to respond to the cure notice or its subsequent SSOC, proceed with the scheduled hearing, unless instructed otherwise by the Board. Give the appellant the opportunity to waive the 30-day response time and/or the 60-day response time, if the SSOC was issued. If the response time is not waived, re-adjudicate the appeal after the required time period has expired.

Be prepared to fill the Travel Board docket with other available cases if the hearing is rescheduled or cancelled (see M21-1MR, Part I, Chapter 5, Section H, Topic 38, Block i). If the hearing is scheduled in less than 30 days for these new cases, remember to include a waiver of advance notice of the hearing.

Certification to the Board of Veterans’ Appeals

If the appeal is ready for certification to BVA and the cure notice is not of record, send Enclosure 2, Letter to Cure Pending Appeals for Increased Evaluation with a Vazquez-Flores Notice Response. If a response is received that indicates no additional development is necessary, or if no response is received after 30 days, re-adjudicate the appeal in the form of an SSOC. Wait for the 60-day SSOC response time to expire unless the appellant waives it. Certify the appeal and transfer the claims folder to BVA. If evidence is received after certification to BVA, follow the guidelines set forth at M21-1MR, Part I, Chapter 5, Section F.

Remands

The Appeals Management Center (AMC) typically receives and processes remands. However, if an RO receives a remand, the RO must comply with the remand instructions. The VSR will perform any required additional development, including, as necessary, sending the appropriate cure notice and notice response.
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Questions?

If you have any questions about this letter, please refer first to Enclosure 4, Vazquez-Flores Questions and Answers. Otherwise, send your question via e-mail to VAVBAWAS/CO/212A.



/S/
Bradley G. Mayes,
Director
Compensation and Pension Service

Enclosures