[Code of Federal Regulations]
[Title 38, Volume 1]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 38 CFR 3.103]

[Page 145-148]

TITLE 38 -- PENSIONS, BONUSES, AND VETERANS' RELIEF

CHAPTER I -- DEPARTMENT OF VETERANS AFFAIRS

PART 3 -- ADJUDICATION -- Table of Contents

Subpart A -- Pension, Compensation, and Dependency and Indemnity Compensation

Sec. 3.103  Procedural due process and appellate rights.

    (a) Statement of policy. Every claimant has the right to written 
notice of the decision made on his or her claim, the right to a hearing, 
and the right of representation. Proceedings before VA are ex parte in 
nature, and it is the obligation of VA to assist a claimant in 
developing the facts pertinent to the claim and to render a decision 
which grants every benefit that can be supported in law while protecting 
the interests of the Government. The provisions of this section apply to 
all claims for benefits and relief, and decisions thereon, within the 
purview of this part 3.
    (b) The right to notice--(1) General. Claimants and their 
representatives are entitled to notice of any decision made by VA 
affecting the payment of benefits or the granting of relief. Such notice 
shall clearly set forth the decision made, any applicable effective 
date, the reason(s) for the decision, the right to a hearing on any 
issue involved in the claim, the right of representation and the right, 
as well as the necessary procedures and time limits, to initiate an 
appeal of the decision.
    (2) Advance notice and opportunity for hearing. Except as otherwise 
provided in paragraph (b)(3) of this section, no award of compensation, 
pension or dependency and indemnity compensation shall be terminated, 
reduced or otherwise adversely affected unless the beneficiary has been 
notified of such adverse action and has been provided a period of 60 
days in which to submit evidence for the purpose of showing that the 
adverse action should not be taken.
    (3) Exceptions. In lieu of advance notice and opportunity for a 
hearing, VA will send a written notice to the beneficiary or his or her 
fiduciary at the same time it takes an adverse action under the 
following circumstances:
    (i) An adverse action based solely on factual and unambiguous 
information or statements as to income, net worth, or dependency or 
marital status that the beneficiary or his or her fiduciary provided to 
VA in writing or orally (under the procedures set forth in 
Sec. 3.217(b)), with knowledge or notice

[[Page 183]]

that such information would be used to calculate benefit amounts.
    (ii) An adverse action based upon the beneficiary's or fiduciary's 
failure to return a required eligibility verification report.
    (iii) Evidence reasonably indicates that a beneficiary is deceased. 
However, in the event that VA has received a death certificate, a 
terminal hospital report verifying the death of a beneficiary or a claim 
for VA burial benefits, no notice of termination (contemporaneous or 
otherwise) will be required.
    (iv) An adverse action based upon a written and signed statement 
provided by the beneficiary to VA renouncing VA benefits (see Sec. 3.106 
on renouncement).
    (v) An adverse action based upon a written statement provided to VA 
by a veteran indicating that he or she has returned to active service, 
the nature of that service, and the date of reentry into service, with 
the knowledge or notice that receipt of active service pay precludes 
concurrent receipt of VA compensation or pension (see Sec. 3.654 
regarding active service pay).
    (vi) An adverse action based upon a garnishment order issued under 
42 U.S.C. 659(a).


(Authority: 38 U.S.C. 501(a))

    (4) Restoration of benefits. VA will restore retroactively benefits 
that were reduced, terminated, or otherwise adversely affected based on 
oral information or statements if within 30 days of the date on which VA 
issues the notification of adverse action the beneficiary or his or her 
fiduciary asserts that the adverse action was based upon information or 
statements that were inaccurate or upon information that was not 
provided by the beneficiary or his or her fiduciary. This will not 
preclude VA from taking subsequent action that adversely affects 
benefits.
    (c) The right to a hearing. (1) Upon request, a claimant is entitled 
to a hearing at any time on any issue involved in a claim within the 
purview of part 3 of this chapter, subject to the limitations described 
in Sec. 20.1304 of this chapter with respect to hearings in claims which 
have been certified to the Board of Veterans Appeals for appellate 
review. VA will provide the place of hearing in the VA office having 
original jurisdiction over the claim or at the VA office nearest the 
claimant's home having adjudicative functions, or, subject to available 
resources and solely at the option of VA, at any other VA facility or 
federal building at which suitable hearing facilities are available. VA 
will provide one or more employees who have original determinative 
authority of such issues to conduct the hearing and be responsible for 
establishment and preservation of the hearing record. Hearings in 
connection with proposed adverse actions and appeals shall be held 
before one or more VA employees having original determinative authority 
who did not participate in the proposed action or the decision being 
appealed. All expenses incurred by the claimant in connection with the 
hearing are the responsibility of the claimant.
    (2) The purpose of a hearing is to permit the claimant to introduce 
into the record, in person, any available evidence which he or she 
considers material and any arguments or contentions with respect to the 
facts and applicable law which he or she may consider pertinent. All 
testimony will be under oath or affirmation. The claimant is entitled to 
produce witnesses, but the claimant and witnesses are expected to be 
present. The Veterans Benefits Administration will not normally schedule 
a hearing for the sole purpose of receiving argument from a 
representative. It is the responsibility of the VA employee or employees 
conducting the hearings to explain fully the issues and suggest the 
submission of evidence which the claimant may have overlooked and which 
would be of advantage to the claimant's position. To assure clarity and 
completeness of the hearing record, questions which are directed to the 
claimant and to witnesses are to be framed to explore fully the basis 
for claimed entitlement rather than with an intent to refute evidence or 
to discredit testimony. In cases in which the nature, origin, or degree 
of disability is in issue, the claimant may

[[Page 184]]

request visual examination by a physician designated by VA and the 
physician's observations will be read into the record.


(Authority: 38 U.S.C. 501)

    (d) Submission of evidence. Any evidence whether documentary, 
testimonial, or in other form, offered by the claimant in support of a 
claim and any issue a claimant may raise and any contention or argument 
a claimant may offer with respect thereto are to be included in the 
records.
    (e) The right to representation. Subject to the provisions of 
Secs. 14.626 through 14.637 of this title, claimants are entitled to 
representation of their choice at every stage in the prosecution of a 
claim.
    (f) Notification of decisions. The claimant or beneficiary and his 
or her representative will be notified in writing of decisions affecting 
the payment of benefits or granting relief. All notifications will 
advise the claimant of the reason for the decision; the date the 
decision will be effective; the right to a hearing subject to paragraph 
(c) of this section; the right to initiate an appeal by filing a Notice 
of Disagreement which will entitle the individual to a Statement of the 
Case for assistance in perfecting an appeal; and the periods in which an 
appeal must be initiated and perfected (See part 20 of this chapter, on 
appeals). Further, any notice that VA has denied a benefit sought will 
include a summary of the evidence considered.

(Authority:38 U.S.C. 501, 1115, 1506, 5104.)

[55 FR 13527, Apr. 11, 1990; 55 FR 17530, Apr. 25, 1990, as amended at 
55 FR 20148, May 15, 1990; 55 FR 25308, June 21, 1990; 57 FR 56993, Dec. 
2, 1992; 58 FR 16360, Mar. 26, 1993; 58 FR 59366, Nov. 9, 1993; 59 FR 
6218, Feb. 10, 1994; 59 FR 6901, Feb. 14, 1994; 66 FR 56613, Nov. 9, 
2001]

 

Editorial Note: For Federal Register citations affecting Sec. 3.1, see the List of Sections Affected, which appears in the Finding Aids section of the printed volume and on GPO Access.




PART I -- DEPT OF VA       CFR





You'all come back real soon.     We ain't done yet.

Published by a vet for vets.

Use it, take it ; no copyright (ever) here.

Please send me an email for corrections, update and other important links for vets!