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Updated Jul 03, 2024

In This Section

  
This section contains the following topics:
 
Topic
Topic Name
1
2
3
 

 

1.  Readjudicating Previously Decided Claims Upon Request

 

Introduction

  
This topic contains information on readjudicating previously decided claims upon request, including

Change Date

   August 19, 2021

X.ii.2.A.1.a.  Requesting Readjudication of a Previously Decided Claim

  
Once the Department of Veterans Affairs (VA) issues notice of a decision on an issue, the decision is considered binding and the record closed to new evidence.  A claimant may request readjudication of the issue by filing a(n) 
  • allegation of clear and unmistakable error (CUE)
  • supplemental claim with new and relevant evidence
  • request for higher-level review (HLR), or
  • notice of disagreement (NOD) to the Board of Veterans’ Appeals (BVA).
References:  For more information on

X.ii.2.A.1.b.  Form Requirements for Claim Readjudication

  
Once the record closes, the mere submission of evidence does not require readjudication of the claim.  The claimant must file a specific request, which in most cases, requires the submission of a completed form.
 
The table below represents the required forms for the review and readjudication of a claim after the record closes.
 
Review Option
Required Form
allegation of CUE
n/a
supplemental claim
HLR
 
Important: 
  • Process submissions of evidence that are not an allegation of CUE or accompanied by a required form as a request for application as noted in M21-1, Part II, Subpart iii, 2.G.1.
  • Claimants must file NODs directly to BVA.

X.ii.2.A.1.c.  Section 5103 Requirements

  
Use the table below to determine if a Section 5103 notice is needed.
 
If the claimant files a(n) …
Then Section 5103 notice is …
HLR
not needed.
supplemental claim within a year
not needed.
supplemental claim more than a year after a prior decision
required.
 
Important:  Review VA Form 20-0995 in accordance with M21-1, Part X, Subpart ii, 2.A.2.a to determine if the claimant acknowledged receipt of Section 5103 notice on the supplemental claim form.
 
Reference:  For more information on Section 5103 notice, see M21-1, Part III, Subpart i, 2.B.

X.ii.2.A.1.d.  Duty to Assist and Claim Reviews

  
Upon receipt of a substantially complete supplemental claim, VA’s duty to assist in gathering evidence under 38 CFR 3.159 is triggered and includes any such assistance that may help secure new and relevant evidence as defined in 38 CFR 3.2501(a) to complete the supplemental claim application.
 
HLRs are based on a closed evidentiary record, and therefore, no duty to assist applies.  However, as part of the HLR process, the adjudicator will determine if VA fulfilled its duty to assist during the adjudication of the prior claim.
 
Reference:  For more information on HLRs and duty to assist errors, see

X.ii.2.A.1.e.  Handling Requests to Review a Determination Regarding New and Relevant Evidence

  
A claimant may request review of a determination that evidence is not new and relevant, as further defined in M21-1, Part X, Subpart ii, 2.A.2.d, by timely filing one of the review options under 38 CFR 3.2500. 
 
In these cases, limit the rating decision to that issue, citing all of the following in the summary of evidence and reasons for decision: 
  • the date of the
    • original denial
    • notification of that denial
    • receipt of the evidence submitted
    • finding that the evidence was not considered to be new and relevant, and
    • notification of that decision, and
  • the evidence submitted.

 

 

2.   Considering Supplemental Claims

 

Introduction

  
This topic includes information on considering supplemental claims, including

Change Date

   July 3, 2024

X.ii.2.A.2.a.  Duty to Provide Section 5103 Notice

  
Do not provide Section 5103 notice for a supplemental claim that is filed within a year of the date VA issued notification of a prior decision.
 
For supplemental claims filed more than a year after the prior decision, review the claimant’s 5103 notice selection on VA Form 20-0995 to determine if they certified review of electronic Section 5103 notice.  If the claimant checked the box certifying they reviewed the notice, there is no need to provide a Section 5103 notice.
 
Note:  While 38 CFR 3.159(b) provides the above exception for Section 5103 notice specific to supplemental claims, other exceptions applicable to all claims as discussed in M21-1, Part III, Subpart i, 2.B.1 may also apply to supplemental claims.
 
References:  For more information on

X.ii.2.A.2.b.  ITFs and Supplemental Claims

  
Effective July 30, 2021, claims processors must consider whether an intent to file (ITF) of record applies to a qualifying supplemental claim.  A qualifying supplemental claim is
  • substantially complete
  • the first application received for the same benefit type identified on the ITF, and
  • received within one year of the ITF.
Note:  Prior to July 30, 2021, VA did not apply ITFs to supplemental claims.  However, in Military-Veterans Advocacy v. Secretary of Veterans Affairs, 7 F.4th 1110 (Fed. Cir. 2021) the court invalidated a portion of the introductory language to 38 CFR 3.155, which excluded supplemental claims from the ITF process.   
 
References:  For more information on

X.ii.2.A.2.c.  ITFs and Continuous Pursuit in Supplemental Claims

  
Effective July 30, 2021, an ITF filed within one year of notification of a VA decision may operate to maintain continuous pursuit if the ITF is followed by a complete supplemental claim, even if the supplemental claim is filed after the one-year period following notice of a decision.
 
Important:  ITFs do not apply to other decision review lanes, such as HLRs.
 
References:  For more information on

X.ii.2.A.2.d.  Definition:  New and Relevant

  
Supplemental claims require new and relevant evidence in order for the claim to be readjudicated.
 
As defined in 38 CFR 3.2501, new evidence is evidence not previously part of the actual record before agency adjudicators.  Relevant evidence is information that tends to prove or disprove a matter at issue in a claim.  Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed. 
 
Note:  New evidence that affirms findings previously deemed favorable to the claimant is still relevant.  There is no requirement that relevant evidence prove a previously unsubstantiated matter.
 
Example:  A Veteran was previously denied service connection (SC) for a low back condition.  Evidence at the time of the prior decision noted a back strain on active duty in 1980.  Post-service medical records showed degenerative changes in the lumbar spine beginning in 2015.  The claim was denied as not incurred in service based on a medical opinion that the current lumbar spine disability was not due to the strain in service.  On August 19, 2019, the Veteran filed a supplemental claim for the low back condition.  VA medical center treatment records showed ongoing complaints of low back pain.
 
Result:  The supplemental claim is considered substantially complete based on new treatment records.  The claim also warrants a merits-based decision since the treatment records, despite relating only to a previously established fact, are relevant to the claim for the back condition. 
Reference:  For more information on action required on evidence submitted with a supplemental claim, see M21-1, Part X, Subpart ii, 2.A.2.e.

X.ii.2.A.2.e.  Action Required on Evidence Submitted With Supplemental Claims

  
A claim that has been previously decided inherently warrants a conditional two-part determination. Decisions on previously decided claims must address
  • first, whether new and relevant evidence has been submitted to warrant readjudication of the claim, and
  • if so, whether to grant or continue to deny the underlying claim.
If the claimant submits or identifies potentially new evidence with a supplemental claim, the claim is considered complete, and a new decision must be issued. 
 
Use the table below to determine what action to take when issuing a decision on a supplemental claim.
 
If the evidence is found to be …
Then issue a …
  • duplicative
  • not relevant, or
  • otherwise not new
decision indicating that there is not sufficient evidence to readjudicate the claim.
new and relevant
merits-based decision.
 
References:  For more information on potentially new evidence, see M21-1, Part II, Subpart iii, 2.B.1.e.

X.ii.2.A.2.f.  Supplemental Claims on Evaluation Issues

  
Veterans may file supplemental claims on evaluation issues more than a year after the prior decision, as there is no regulatory time limit to file a supplemental claim.  If a complete supplemental claim is received on an evaluation issue more than a year after the prior decision, the effective date of any increased benefits awarded will be fixed in accordance with 38 CFR 3.2500(h).
 
Reference:  For more information on effective dates for supplemental claims, see M21-1, Part X, Subpart ii, 2.A.3.

X.ii.2.A.2.g.  Examinations and Supplemental Claims

  
For supplemental claims, the determination of whether the duty to assist requires an examination will vary depending on the facts of the individual case.  For example, if new and relevant evidence submitted in support of a supplemental claim on an evaluation issue demonstrates a disability picture that is incongruent with the assigned evaluation, an examination may be requested.
 
In some cases, a Veteran may submit a private positive medical opinion with a supplemental claim for SC for a condition that was previously denied due to no nexus to service.  The decision maker must review the medical opinion to ensure it contains a supporting rationale and is adequate for rating purposes.  If the evidence is adequate for rating purposes, weigh the evidence and make a decision.  Follow the guidelines specified in M21-1, Part IV, Subpart i, 3.C.1.c and d when determining if clarification or reconciliation by an examiner is needed or if a new examination is needed to resolve inconsistencies.
 
Important:  A supplemental claim does not, by default or as a matter of general rule, automatically entitle a claimant to an examination.  Examinations should not be requested without a thorough review of the evidence to determine if there is a need for an examination.  If the development activity is unable to determine whether an examination is needed based on the initial review of the evidence, claims processors will consult with the rating activity before requesting an examination.
 
Example:  A Veteran was granted SC for a back strain and a 10-percent evaluation was assigned based on pain with full range of motion.  The Veteran submits a supplemental claim and states the back strain is worse than 10-percent disabling.  The only new evidence is VA medical center treatment notes indicating treatment for pain associated with the back strain without any evidence of other symptoms or disabling effects. 
 
Result:  An examination would not be warranted because the Veteran did not provide any evidence demonstrating a disability picture that is incongruent with the currently assigned 10-percent evaluation.
 

References:  For more information on

 

 

3.  Effective Dates for Previously Decided Claims

 
 
 
Introduction
  
Change Date
  
March 31, 2023

X.ii.2.A.3.a.  Considerations Relevant to Previously Decided Claims 

  
On and after February 19, 2019, when deciding an effective date for a previously decided claim, decision makers must consider whether the underlying issue is

X.ii.2.A.3.b.  Continuously Pursued Claims

  
If an issue is continuously pursued under 38 CFR 3.2500(c) as an HLR, supplemental claim, or appeal to BVA (or a timely combination of any of those review options, in succession), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(1), which allows for an effective date based on the date of receipt of the initial claim, or the date entitlement arose, whichever is later.
 
Notes: 
  • The effective date provisions of 38 CFR 3.2500(h)(1) for continuously pursued claims apply to a supplemental claim filed within one year following a
    • decision on the same issue for that same claimant from the U.S. Court of Appeals for Veterans Claims, the U.S. Court of Appeals for the Federal Circuit, or the Supreme Court of the U.S., and/or
    • dismissal of an issue, in association with a joint motion for remand for separate issue(s), provided that the motion specifically stipulates that a supplemental claim may be filed to allow continuous pursuit of the dismissed issue.
  • In certain situations as outlined in M21-1, Part X, Subpart ii, 2.A.2.c, an ITF can establish continuous pursuit if followed by a qualifying supplemental claim.
Exceptions: 
  • If another, more specific provision of 38 CFR 3.400 applies to the claim’s unique facts, then that effective date rule takes precedence.
  • Evidentiary submission timeframes cannot be extended for issues like dependency and income as outlined in 38 CFR 3.401(b) and 38 CFR 3.660.
References:  For

X.ii.2.A.3.c.  Supplemental Claims Received After the Prior Claim Has Become Finally Adjudicated

  
If a supplemental claim is received after the prior claim has become finally adjudicated under 38 CFR 3.160(d), decision makers must apply the effective date provisions of 38 CFR 3.2500(h)(2), which state that the effective date will be fixed in accordance with the date entitlement arose, but will not be earlier than the date of receipt of the supplemental claim.
 
Exception:  If another, more specific provision of 38 CFR 3.400 applies to the claim’s unique facts, then that effective date rule takes precedence.
 
Reference:  For an example of an effective date assigned under 38 CFR 3.2500(h)(2), see M21-1, Part X, Subpart ii, 2.A.3.e.

X.ii.2.A.3.d.  Example:   Effective Date Assigned Under 38 CFR 3.2500(h)(1) 

  
Facts:  On March 17, 2018, a Veteran files an initial claim for SC for ischemic heart disease (IHD) based on exposure to herbicides in Vietnam.  Medical evidence of record confirms a clinical diagnosis of IHD has existed since February 2012.  VA issues a rating decision and corresponding decision notice on August 14, 2018, denying the claim because existing evidence is insufficient to concede a qualifying in-service event, including herbicide exposure.  The Veteran submits a complete request for HLR on March 1, 2019.  The higher-level reviewer assigned to the case discovers, among existing service dental records, one instance of treatment at a facility whose Army Post Office number allows a presumption of herbicide exposure.
 
Analysis:  SC is granted with an effective date of March 17, 2018, the date of receipt of the initial claim, because
  • all elements required to establish SC have been met, and
  • the Veteran continuously pursued the issue with the timely filing of an available decision review option.

X.ii.2.A.3.e.  Example:   Effective Date Assigned Under 38 CFR 3.2500(h)(2) 

  
Facts:  VA issues a rating decision and corresponding decision notice on September 17, 2017, denying SC for right knee patellofemoral syndrome (PFS).  A VA examination and medical opinion obtained in connection with the claim determined that the probability of a relationship between the right knee PFS and military service was less likely than not.  On March 1, 2019, the Veteran submits a supplemental claim accompanied by a private medical opinion that favorably relates the right knee PFS to in-service treatment for similar symptoms.  The rationale of the private medical opinion is deemed more persuasive than that of the original VA examination and opinion.
 
Analysis:  SC is granted with an effective date of March 1, 2019, the date of receipt of the supplemental claim.  All elements required to establish SC were met, but the supplemental claim was received after the prior decision became finally adjudicated under 38 CFR 3.160(d).

X.ii.2.A.3.f.  Effective Date Considerations for Incomplete Supplemental Claims 

  
After receiving an incomplete supplemental claim, VA must notify the claimant (and representative, if any) of the information necessary to render the claim complete.  If VA receives that information within 60 days of such notice, it will be considered filed, for potential effective date purposes, as of the date of receipt of the incomplete claim.
 
References:  For more information on