Overview of the Fully Developed Claims (FDC) Program and Provisional Decisions NVLSP

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1 Overview of the Fully Developed Claims (FDC) Program and Provisional Decisions NVLSP

2 FDC OVERVIEW What is an FDC Claim? VA claims that it will process FDC claims within 90 days In general, it is a claim filed on the proper form (an EZ form) that is either ready to rate, or would be ready to rate after the VA obtains federal records and/or conducts a VA examination. If Guard or Reserve records are needed, the claim will not qualify for the FDC program. NVLSP

3 FDC OVERVIEW EXCEPTIONS EZ FORM NOT SIGNED NON-FDC CLAIMS PENDING NON-FDC CLAIMS ARRIVE WITH FDC CLAIM APPEAL PENDING (and file is not at home RO) NEEDS CHARACTER OF DISCHARGE DETERMINATION DEVELOPMENT BEYOND VA OBTAINING FED RECORDS IN POSSESSION OF FED GOV T OR CONDUCTING VA EXAM MOST OTHER CLAIMS QUALIFY Example Vet correctly asserts that he was exposed to a toxic agent in service and now has symptoms that he/she thinks are linked to that exposure NVLSP

4 FDC OVERVIEW VA Forms and Guidance VA Forms to Use: EZ (Application for Disability Compensation and Related Compensation Benefits) Most recent version Jan EZ (Application for Pension) EZ (Application for DIC, Death Pension, and/or Accrued Benefits) NVLSP

5 FDC OVERVIEW VA Forms and Guidance (continued) Only claims filed on the EZ forms can qualify for the FDC program. Always use the most recent version of the form DO NOT USE THE 2/2010 EZ FORM. Fast Letters (FL) on the FDC Program: 13-17, and NOTE FL was rescinded by FL NVLSP

6 Filing an FDC Claim Vets can file FDC claims electronically through the VA ebenefits portal, but service reps do not have access to this program. All EZ forms have a notice section. This section covers claims for most compensation, pension, and DIC/Accrued claims. NVLSP

7 Filing an FDC Claim Claimants must sign the certification on the appropriate VA form. The claimant has two options: 1) Submit the claim as FDC, or 2) Check the box indicating they have additional information to submit. NVLSP

8 Filing an FDC Claim If 2 on the prior slide is checked indicating claimant has add l info to submit then the claim will be adjudicated in the traditional fashion BUT VA will not send out a 38 U.S.C notice and the claimant may obtain a decision at an earlier time relative to claims adjudicated after 5103 notice is provided. The VA will likely take several months less time to process even if the box is checked. NVLSP

9 Filing an FDC Claim If the vet indicates that he/she wants to file a claim through the FDC program (in a letter or on VAF ), the VA will send an EZ form to the claimant. This policy extends to both informal claims and incomplete applications see 38 U.S.C and 38 C.F.R NVLSP

10 Filing an FDC Claim The VA will accept: Claims for compensation on Form EZ as an FDC claim, Claims for pension on Form EZ as an FDC claim, Claims for both pension and compensation when Forms EZ and EZ are both filed simultaneously, and Claims for DIC, death pension, and/or accrued benefits are filed on Form EZ. NVLSP

11 EFFECTIVE DATE ISSUES VA Instructions on Incomplete FDC Claims Page 4 of FL Consider any communication or action that identifies intent to file a compensation, pension, or survivor claim for processing in the FDC Program as an incomplete FDC application. NVLSP

12 EFFECTIVE DATE ISSUES VA Instructions on Incomplete FDC Claims Page 4 of FL (this is not an exhaustive reci Upon receipt of an incomplete FDC application: Establish EP 400 Send the claimant the Incomplete FDC Claim Letter (see Enclosure 3) generated via MAP-D (important) and enclose the appropriate EZ form. Associate the incomplete FDC application with the claims folder or the efolder, as appropriate. PCAN the EP 400 No further action on the incomplete FDC application is required at this time NVLSP

13 EFFECTIVE DATE ISSUES VA Instructions on Incomplete FDC Claims Page 4 of FL If a claims folder does not exist, and efolder is not appropriate, establish a claims folder see M21-1 MR, Part III, Subpart ii, Chapter 3. NVLSP

14 EFFECTIVE DATE ISSUES VA Instructions on Incomplete FDC Claims Important: If a claimant in a communication identifies a specific contention (e.g., left leg, diabetes, etc.) for consideration and a signed, completed VA Form or EZ form is of record, consider it a formal application. Place the claim under end product control (e.g., EP 110, 020, 010) effective the date of receipt of the completed application, and forward it for processing. NVLSP

15 FDC AUTHORITIES 38 U.S.C Application forms furnished upon request; notice to claimants of incomplete applications. (a) Furnishing forms. Upon request made by any person claiming or applying for, or expressing an intent to claim or apply for, a benefit under the laws administered by the Secretary, the Secretary shall furnish such person, free of all expense, all instructions and forms necessary to apply for that benefit. NVLSP

16 FDC AUTHORITIES 38 U.S.C Application forms furnished upon request; notice to claimants of incomplete applications. (b) Incomplete applications. If a claimant's application for a benefit under the laws administered by the Secretary is incomplete, the Secretary shall notify the claimant and the claimant's representative, if any, of the information necessary to complete the application. NVLSP

17 FDC AUTHORITIES 38 U.S.C Application forms furnished upon request; notice to claimants of incomplete applications. (c) Time limitation. (1) If information that a claimant and the claimant's representative, if any, are notified under subsection (b) is necessary to complete an application is not received by the Secretary within one year from the date such notice is sent, no benefit may be paid or furnished by reason of the claimant's application. NVLSP

18 FDC CLAIMS PROCESSING AND NEW 38 U.S.C. 5110(b) The statute states: (2)(A) The effective date of an award of disability compensation to a veteran who submits an application therefore that sets forth an original claim that is fully-developed (as determined by the Secretary) as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. NVLSP

19 38 U.S.C. Section 5110(b) (B) For purposes of this paragraph, an original claim is an initial claim filed by a veteran for disability compensation. (C) This paragraph shall take effect on the date that is one year after the date of the enactment of the Honoring America s Veterans and Caring for Camp Lejeune Families Act of 2012 and shall not apply with respect to claims filed after the date that is three years after the date of the enactment of such Act. [Date range is 8/6/13-8/6/15] NVLSP

20 FAQ 1. What is an incomplete FDC application? [See 38 U.S.C. 5102] Where the documents provided to the VA do not constitute a claim simply a somewhat vague intent to file a claim. Example: unsigned application, or I want compensation benefits. NVLSP

21 FAQ INCOMPLETE APPLICATIONS If the application is not substantially complete then: Notify claimant (and the claimant's rep, if any) Of the information VA needs to consider the application complete, and That failure to submit a substantially complete application within one year will result in no benefit being paid or furnished by reason of that application. NVLSP

22 Retro Benefits for FDC 38 U.S.C allows up to a one-year retroactive effective date for awards of disability compensation, for claims received 8/6/13 8/6/15. FL clarifies VA s position regarding the effective date for claims eligible for the 1 year retro benefit. In general, otherwise continue to follow guidelines outlined in FL to determine whether the claim is eligible for the FDC program (discussed in previous slides). NVLSP

23 Retro Benefits for FDC (per FL 13-17) To be eligible for a retroactive effective date, the following requirements must be met: The claim must be for compensation no other types of claims are eligible (i.e. pension, etc.); Claim must original; an original claim is defined in FL as the initial formal (complete) claim filed by vet for disability compensation; and Any applications submitted or filed subsequently will be considered new or supplemental claims, and therefore not eligible for a retroactive effective date. NVLSP

24 Retro Benefits for FDC (per FL 13-17) To be eligible for a retroactive effective date, the following requirements must be met: Informal (incomplete) claims are not eligible for an additional retroactive effective date; The claim must be received on a VA Form EZ. Veterans can also apply through ebenefits; Vet must have separated from his/her last period of active duty service more than one year ago; and The claim must be received from 8/6/2013 8/5/2015 Note per the statute, the end date is 8/6/2015. NVLSP

25 Retro Benefits for FDC (per FL 13-17) Claims eligible for the retro benefit, will have the effective date calculated as whichever is the earlier of 1) the date up to one year prior to receipt of the complete FDC if the facts support such an effective date as explained in the paragraph below, or 2) the date of receipt of an informal claim for which a formal (complete) FDC was subsequently received. In either case, the effective date may not be more than one year prior to the date the formal (complete) FDC claim is received. Note that the effective date will only be calculated based on the date of receipt of the formal claim and NOT the incomplete claim (even if a formal claim was later filed the date the formal claim was filed will control for the retro benefit) NVLSP

26 Provisional Decisions NVLSP

27 Introduction VA s initiative to make a provisional decision based on the evidence of record, unless the requests for the following types of evidence are outstanding: (1) SMRs for original claims; (2) VA medical records; (3) Any evidence needed to establish vet status and/or pertinent service dates, if available evidence is not otherwise sufficient; and (4) VA exams, if such exams are pending at the time the case is reviewed or required to issue a decision. NVLSP

28 Evidence 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 (RTR) Or the rating assigned provides the highest level evaluation authorized for the particular DC 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. NVLSP

29 Category 1 Cases ROs will issue rating decisions, as normal, for RTR cases that meet the 2-year old criteria and for cases where the rating assigned provides the highest evaluation authorized in the Rating Schedule for each claimed issue. These will be FINAL decisions and appeal rights will be provided. NVLSP

30 Category 2 Cases ROs will issue provisional rating decisions for other 2-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 NVLSP

31 Category 2 Cases UNLESS the following requests for evidence are outstanding: STRs for original claims; VA medical records; Any evidence needed to establish Vet status and/or pertinent service dates, if available evidence is not otherwise sufficient; VA exams, if such exams are pending at the time the case is reviewed or if one is required in order to issue a decision. NVLSP

32 Category 2 Cases 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. NVLSP

33 Development 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. VA has instructed that ROs should only order a new exam when one is required to decide the claim. NVLSP

34 Provisional Ratings 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) should be deferred on a rating document NVLSP

35 Other Rating Considerations 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 should grant entitlement to SC for the claimed disability at the highest justifiable percentage of disability based upon the evidence of record, as warranted. NVLSP

36 Special Rules Upon promulgation of this provisional decision, the VA will clear the controlling EP. No appeal rights will be provided to the claimant since the decision rendered is considered a provisional decision. After 1 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. NVLSP

37 Congressional Attention 6/20/13 - U.S. Senators Heller and Casey wrote to USB Hickey with concerns The Senators noted VA s June 2013 announcement that 97% of all claims over 2 years old had been eliminated from the backlog Concerns were raised regarding the accuracy of reporting the number of claims being closed as well as quality NVLSP

38 Questions Posed to USB Hickey Question 1: Of the claims cleared from the backlog, were any of these claims considered provisional with provisional being defined as any aspect of the claim still remaining open? Question 2: Is there any way a claim, with issues still pending and in the ratings process, can be deemed by the Veterans Benefit Administration (VBA) to be closed solely for reporting purposes? NVLSP

39 Questions Posed to USB Hickey Question 3: Given the strict deadline for completing all claims older than two years, did Rating Veterans Service Representatives (RVSR s) have enough time to ensure the rating was the correct decision for the veteran? If so, what was the accuracy of the recently adjudicated claims? Question 4: VBA was able to adjudicate the two year old claims relatively quickly. Were any of these claims unnecessarily delayed during the claim development and ratings process? If so, what was the cause of this delay? NVLSP

40 Advocacy Advice USB Hickey never responded to the Senators letter We have been advised by senior VA officials that nearly all 2-year old cases are being processed traditionally We are watching the provisional decision-making process carefully to ensure that it is not used as an easy means to prematurely deny claims It remains to be seen how VA will respond at the end of the 1-year period following a provisional decision if requested evidence remains outstanding at that time NVLSP