M28R, Part III, Section C, Chapter 2 March 31, 2014
Chapter 2
VETERAN’S RIGHTS, RESPONSIBILITIES AND DUE PROCESS
2.01 Introduction
2.02 References and Resources
2.03 Providing General Notice of Rights and Responsibilities
a. When to Provide General Notice of Rights and Responsibilities
b. Who is Entitled to Notification
c. Definition of Terms
2.04 Requirements Regarding the Privacy Act Statement and Freedom of Information
Act (FOIA)
a. Privacy Act Statement
b. Freedom of Information Act (FOIA)
c. Requesting Records Under FOIA
d. Responding to FOIA Request
2.05 Protection of Privacy and Release of Information
a. Protection of Privacy
b. Release of Information to Outside Entities
c. Review of Sensitive Information in Veteran’s Record
d. Rehabilitation Service Providers
e. Release of Information to Potential Employers
2.06 Procedures for Providing Due Process
a. Definition of Terms
b. Entitlement to Notification
c. General Notification Requirements for an Adverse Action or a Proposed
Adverse Action
d. Types of Notification
e. Adverse Actions that Do Not Require Prior Notification
1. Change in Training Time, Credit Hours
2. Terminating an Award Upon Notification of Death
f. Adverse Actions that Require Prior Notification
1. Benefit Changes Requiring a Notice of Proposed Adverse Action
2. Procedures for Providing Notices of Proposed Adverse Action
3. Due Process Period
2.07 Section 5103 Notice (Formally Known as the VCAA Notice)
a. Background
b. Elements of the Section 5103 Notice
2-i
M28R, Part III, Section C, Chapter 2 March 31, 2014
2.08 Duty to Assist Criteria
a. Duty to Obtain Relevant Federal Records
b. Duty to Obtain Relevant Non-Federal Records
c. Refrain From or Discontinue Providing Assistance
Appendix O. VA Forms
2-ii
M28R, Part III, Section C, Chapter 2 March 31, 2014
Chapter 2
VETERAN’S RIGHTS, RESPONSIBILITIES AND DUE PROCESS
2.01 Introduction
The scope of this chapter includes a description of Veterans’ rights and
responsibilities, information on providing notification of rights to a Veteran, due
process, adverse action notification, award action, and duty to assist. This
chapter also contains the statutory and regulatory provisions covering subject
matter related to Veterans’ rights, responsibilities and due process under Chapter
31.
2.02 References and Resources
Laws: 38 United States Code (U.S.C.) 5103 38 U.S.C. 5103A
38 U.S.C. 5112
38 U.S.C. 5113
Freedom of Information Act (FOIA) Privacy Act of 1974
Public Law (PL) 112-154
Veterans Claims Assistance Act (VCAA)
Regulations: 38 Code of Federal Regulations (CFR) 3.103
38 CFR 21.324
38 CFR 21.420
VA Forms (VAF): VAF 21-4142, Authorization and Consent to Release
Information to the Department Of Veterans Affairs
VAF 28-8739a, Protection of Privacy Information Statement
VAF 28-0800, Vocational Rehabilitation and Employment
(VR&E) Program Orientation
VAF 4107, Your Rights to Appeal Our Decision VAF 3288,
Request for and Consent to Release of Information from
Claimant’s Records
Websites: www.foia.va.gov/FOIA_Fee_info.asp
www.foia.va.gov/FOIA_Offices.asp
www.foia.va.gov
2.03 Providing General Notice of Rights and Responsibilities
A Vocational Rehabilitation Counselor (VRC) or Employment Coordinator (EC) (also
referred to as case manager) is responsible for providing the general notice
2-1
M28R, Part III, Section C, Chapter 2 March 31, 2014
of rights and responsibilities to Veterans.
a. When to Provide General Notice of Rights and Responsibilities
During the initial interview, the VRC or EC will take the following actions:
1. Inform the Veteran of his/her rights and responsibilities.
2. Provide the Veteran with a copy of the signed VAF 28-0800, Vocational
Rehabilitation and Employment (VR&E) Program Orientation.
3. Inform the Veteran of current or future determinations that may affect
his/her receipt of benefits and services.
b. Who is Entitled to Notification
Veterans requesting or receiving benefits or services under the following
chapters are entitled to notification:
1. Chapter 18 – Benefits for Children of Vietnam Veterans and Certain Other
Veterans
2. Chapter 31 - Vocational Rehabilitation and Employment
3. Chapter 35 - Survivors' and Dependents' Educational Assistance
c. Definition of Terms
Whenever the term "Veteran" is used in the discussion of the rehabilitation
planning process, this term also includes a court-appointed legal custodian or
guardian of the Veteran. Similarly, the term "child" or "dependent" includes a
parent of a minor child or a court-appointed legal guardian or custodian. A
determination of incompetence solely for the purposes of appointing a
fiduciary to handle a Veteran's or an adult dependent's VA payments does not
by itself mean that the Veteran or adult dependent is not competent to apply
for and receive VR&E benefits. On the other hand, if a court with proper
jurisdiction has appointed a guardian or custodian, then the case manager
must develop the rehabilitation plan in cooperation with the guardian or
custodian. Similarly, a parent must assist in the development of and sign any
plan developed for a minor child.
2.04 Requirements Regarding the Privacy Act Statement and Freedom of Information
Act (FOIA)
a. Privacy Act Statement
The privacy act statement informs the Veteran and/or guardian that the
2-2
M28R, Part III, Section C, Chapter 2 March 31, 2014
information he/she provides will not be used for any other purpose and that
responses may be disclosed outside the VA only if the disclosure is authorized
under the Privacy Act of 1974. During the initial meeting, the case manager
will provide VAF 28-8739a, Protection of Privacy Information Statement (see
Appendix O, VA Forms), explain the purpose of it and obtain an appropriate
signature from the Veteran or guardian. The case manager must file VAF 28-
8739a on the right flap of the Counseling/Evaluation/Rehabilitation (CER)
folder, and ensure the Veteran and/or guardian receives a signed copy of the
form.
b. Freedom of Information Act (FOIA)
The Freedom of Information Act (FOIA) is a federal law that gives United
States citizens the right to access government information upon request. It is
the VA's policy to release information to the fullest extent of the law provided
there is no foreseeable harm associated with the release.
c. Requesting Records Under FOIA
Individuals may request records under FOIA by following these steps:
1. Direct the individual to the VA FOIA website at www.foia.va.gov.
2. Ensure the request is in writing and signed by the person submitting the
request.
3. Describe the records so that they may be located with a reasonable
amount of effort.
4. State the requestor’s willingness to pay applicable fees or provide a
justification to support a fee waiver. For information on fees, go to
www.foia.va.gov/FOIA_Fee_info.asp.
5. Include a daytime telephone number.
The VA has a decentralized system for handling FOIA requests. All FOIA
requests should be addressed directly to any of the approximately 400
geographically dispersed components that may maintain the records the
requestor is seeking.
If the requestor knows the office that maintains the records he/she is seeking,
request that he/she send the request to that office or contact the VA Central
Office FOIA/Privacy Act Officer at www.foia.va.gov/FOIA_Offices.asp for the
custodian of the record.
d. Responding to FOIA Request
2-3
M28R, Part III, Section C, Chapter 2 March 31, 2014
After receiving the FOIA request, the Regional Office FOIA officer will request
the Veteran’s file from VR&E. The VR&E Officer will request clarification from
the FOIA officer regarding whether the entire file is needed or just certain
information from it. Once that is clarified, the requested
information/documents will be taken to the FOIA office. Before providing the
information to the FOIA officer, VR&E will make a duplicate copy of file
information to continue providing appropriate services to the Veteran.
2.05 Protection of Privacy and Release of Information
a. Protection of Privacy
All files, records, reports and other documents pertaining to any claim filed
with the VA are confidential and privileged. The information in the Veteran’s
CER folder is developed and maintained to assist the Veteran in obtaining and
maintaining suitable employment or Independent Living (IL) services. This
information may not be communicated to others, nor may others use it except
in the following circumstances:
• To assist the Veteran in completing a comprehensive initial evaluation
• To assist the Veteran in pursuing his/her rehabilitation program
• To assist the Veteran in securing and adjusting to employment or rarely, to
provide information to protect the Veteran or others from harm
b. Release of Information to Outside Entities
The case manager may release information regarding a Veteran’s disability or
rehabilitation program to a vendor or establishment when all of the following
conditions are met:
• The case manager asked the vendor or establishment to provide services
to the Veteran
• The information is directly related to the services authorized to the Veteran
• The Veteran authorized the release of information in writing
• All Personal Identification Information (PII) must be redacted before
providing information except where the Social Security Number (SSN) is
used as the student’s ID number
The Veteran may provide signed written authorization or utilize VAF 3288,
Request for and Consent to Release of Information from Claimants Records
(Appendix O, VA Forms). The authorization will remain in effect for the
2-4
M28R, Part III, Section C, Chapter 2 March 31, 2014
duration of the Veteran’s rehabilitation program unless otherwise indicated.
Note: The case manager must obtain a separate signed release of information
prior to releasing information to organizations or individuals not directly
involved in providing rehabilitation services.
c. Review of Sensitive Information in Veteran’s Record
Sensitive information is defined as information that, if disclosed to the
individual, may have a serious adverse effect on the individual's mental or
physical health. Such information may require explanation, or interpretation,
by an intermediary, or assistance in the information's acceptance and
assimilation in order to preclude an adverse impact on an individual's mental
or physical health.
When individuals request access to their records (which includes medical,
social, and/or psychological information), the VRC must review the record to
determine whether the medical and/or psychological information could cause
harm to the individual. There will be instances where medical and mental
health notes are placed in the CER, however, Compensation and Pension
Records Interchange (CAPRI) information should not be in the CER per current
VBA policy. If, upon review, the VRC concludes that the information may
cause harm, the request and related documents must be referred back to the
designated VA medical provider, private physician or mental health provider
who prepared the information to determine if the record can be disclosed
directly to the individual.
Where denial of a request for access is made, the VRC must fully document in
a CWINRS note the justification for making the denial. The note must
specifically state that the medical or mental health information was referred
back to the VA medical provider, private physician, or mental health provider
that prepared the information to determine if it can be provided, and that the
information was removed from the CER prior to providing the Veteran access
to the record.
d. Rehabilitation Service Providers
When a case manager releases information to vendors or establishments
providing rehabilitation services, he/she must include a written notice that the
information is strictly confidential, is furnished solely for the purpose of
enabling the vendor or establishment to assist the Veteran in his/her
rehabilitation program, and cannot be released to other parties. The Veteran
does not have to sign a release when services are being contracted out.
However, a release is required when a referral is made to a Disabled Veterans’
Outreach Program (DVOP) specialist or Local Veterans’ Employment
Representative (LVER).
2-5
M28R, Part III, Section C, Chapter 2 March 31, 2014
e. Release of Information to Potential Employers
VA and other rehabilitation service providers should release to employers only
information that they need to know and only with a signed release from the
individual. Employers may not ask job applicants about the existence, nature,
or severity of a disability. Applicants may be asked about their ability to
perform specific job functions. A job offer may be conditional pending the
results of a medical examination, but only if the examination is required for all
employees considering similar jobs.
2.06 Procedures for Providing Due Process
a. Definition of Terms
1. Due process in the administration of VA benefits requires that the case
manager inform the beneficiary of a proposed adverse action that could
reduce, deny, or terminate benefits, and provide the beneficiary with the
opportunity to provide additional evidence to contest the action, and/or
request a meeting with his/her case manager.
2. An adverse action denies benefits and/or services, reduces or otherwise
lessens benefits or services, or terminates benefits.
b. Entitlement to Notification
The following parties are entitled to notification of any decision made by the
VA that affects the payment of benefits or the granting of relief:
• Beneficiaries
• Guardians of minor beneficiaries
• Fiduciaries of Veterans rated or deemed incompetent
• Beneficiaries’ designated representatives
c. General Notification Requirements for an Adverse Action or a Proposed
Adverse Action
When feasible, the case manager will meet with the Veteran to discuss any
adverse actions. However, this personal discussion does not replace the
written notification to the Veteran as required by 38 CFR 21.420.
Every notification letter for an adverse action or a proposed adverse action
must include the following elements:
2-6
M28R, Part III, Section C, Chapter 2 March 31, 2014
1. Nature of the decision
2. Effective date of the decision
3. Reason(s) for the decision
4. Evidence that was considered, and the right of the Veteran to present new
evidence, request a personal meeting, and have representation
5. Veteran’s right to present new evidence, request a personal meeting, and
have representation within a 30-day period from the date of the notification
letter
It is important to note that VAF 4107 does not need to be sent with the notice
of proposed adverse action. The case manager must only send VAF 4107,
Your Rights to Appeal Our Decision (see Appendix O, VA Forms), with the final
notice of adverse action once the action has taken place.
d. Types of Notification
1. There are two types of due process notification used to inform a
beneficiary of a change in benefits:
• Changes that do not require notification prior to taking an adverse
action
• Changes that require notification prior to taking an adverse action
2. The notification for an adverse action or proposed adverse action is
determined by the following source of information:
(a) Third Party
A notification of a proposed adverse action must be sent to the Veteran
to inform him/her of a proposed change in his/her benefits, if the
source of information is received from a third party. The letter should
advise the Veteran of the information received, explain the effect it may
have on his/her benefit, and allow the Veteran to offer evidence or
argument that shows why the proposed action should not be taken.
(b) Veteran
A notification for the adverse action must be sent to the Veteran to
inform him/her about the change in his/her benefits, if the source of
information is the Veteran. The letter should explain that the
information he/she submitted has affected his/her entitlement and the
2-7
M28R, Part III, Section C, Chapter 2 March 31, 2014
extent of the effect. A notice of proposed adverse action may be
required. Refer to section 2.06.e to determine when an adverse actions
does not require prior notification.
For more information on the right to notification, see 38 CFR 3.103(b)(2)
and 38 CFR 21.420.
e. Adverse Actions that Do Not Require Prior Notification
The following instances do not require a notification prior to taking an adverse
action. The case manager must take the adverse action immediately and send
a written notice to the Veteran with a copy to his/her designated
representative.
1. Change in Training Time, Credit Hours
Per 38 CFR 21.420, changes in training time do not require prior
notification. The case manager must take the adverse action immediately
upon notification of the change. However, the case manager must ensure
that all necessary evidence and information from the Veteran and the
facility have been reviewed before taking the adverse action.
(a) If a Veteran notifies his/her case manager of a decrease in course
credits with an official school document confirming the decrease and its
effective date, the case manager must adjust the Veteran’s award, and
inform him/her in writing of the reduction in the subsistence allowance
(38 CFR 21.324(i)) and evidence to support mitigating circumstances
(see M28R.V.B.8 for more information on mitigating circumstances).
(b) If a Veteran notifies his/her case manager of a decrease in course
credits without an official school document confirming the decrease and
its effective date, the case manager must contact the facility to verify
the change and its effective date, adjust the Veteran’s award, and
inform the Veteran in writing of the reduction in the subsistence
allowance. In addition, the case manager must ensure that the
amended certification is obtained from the facility and filed in the
Veteran’s CER folder.
(c) If a facility informs the case manager of a change in training time, with
or without confirmation of a change from the Veteran, the case
manager must adjust the Veteran’s award and inform the Veteran in
writing of the reduction in the subsistence allowance. In addition, the
case manager must ensure that the amended certification is obtained
from the facility and filed in the Veteran’s CER folder.
2-8
M28R, Part III, Section C, Chapter 2 March 31, 2014
2. Terminating an Award Upon Notification of Death
A notice of termination of benefits is not required when VA receives
evidence that the Veteran has died. Once a notice of death is received,
the case manager must immediately terminate the award effective the date
of Veteran’s death (38 CFR 21.324(b) and M28R.V.B.8).
f. Adverse Actions that Require Prior Notification
1. Benefit Changes Requiring a Notice of Proposed Adverse Action
Generally, the VA must send the Veteran and his/her designated
representative (if any), a notice of proposed adverse action prior to taking
any unfavorable action affecting the Veteran’s benefit, including
discontinuance, rehabilitation and of benefits and/or services.
(a) Discontinuance
The case manager must send the Veteran a letter notifying him/her and
his/her designated representative of the interruption when
discontinuance is anticipated and interruption of services is required.
This notification is required prior to closing the Veteran’s case.
(b) Rehabilitation
The case manager must send prior notification to the Veteran and
his/her designated representative when rehabilitation closure is
proposed as a result of the Veteran’s:
• Pursuit of further education, or
• Employment in suitable employment other than the planned goal, or
• When third party information is used and no verification from the
Veteran, or
• When all objectives of an IILP have not been achieved
(c) Reduction in Subsistence Allowance Following the Loss of a Dependent
Where a reduction in subsistence allowance is proposed by reason of
information concerning dependency received from a source other than
the Veteran, VA will:
(1) Prepare a proposal for the reduction of subsistence allowance,
setting forth material facts and reasons
2-9
M28R, Part III, Section C, Chapter 2 March 31, 2014
(2) Notify the Veteran at his/her latest address of record of the
proposed action
(3) Furnish detailed reasons for the proposed reduction
(4) Inform the Veteran that he/she has an opportunity for a
predetermination hearing, provided that VA receives a request for
such a hearing within 30 days from the date of the notice; and
(5) Give the Veteran 60 days for the presentation of additional evidence
to show that the subsistence allowance should be continued at its
present level. (Authority: 38 U.S.C. 5112, 5113)
2. Procedures for Providing Notices of Proposed Adverse Action
(a) Send the Veteran a notice of proposed adverse action. Follow
guidelines specified in this chapter.
(b) Establish the proposed adverse action period specifying that the
Veteran has 30 days to respond before any adverse action is executed.
(c) Respond to the information and/or evidence submitted by the Veteran,
if any, during the proposed adverse action period.
(d) If the Veteran does not respond to the notification for the proposed
adverse action, send final notification of the decision advising the
Veteran of the decision and how it affects his/her entitlement to further
benefits, the effective date, the detailed reasons for the decision, and
his/her appellate rights.
(e) If the Veteran does not respond to the notification of proposed adverse
action and the adverse action has not been finalized after 60 days from
the date of the notification letter, the case manager must provide the
Veteran another notification of proposed adverse action and additional
period of due process.
3. Due Process Period
For a required prior notification, VA must allow at least 30 days for the
Veteran to respond before finalizing the adverse action. If circumstances
warrant, VA may exceed this 30-day period, but the due process may not
exceed 60 days.
2.07 Section 5103 Notice (Formally Known as the VCAA Notice)
a. Background
2-10
M28R, Part III, Section C, Chapter 2 March 31, 2014
On November 9, 2000, Congress enacted the Veterans Claims Assistance Act
(VCAA) which provided that VA has a duty to assist a claimant who files a
substantially complete application in obtaining evidence to substantiate
his/her claim before making a decision on the claim. The law eliminated the
concept of a well-grounded claim, redefined VA’s duty to assist and mandated
specific notice requirements.
Public Law (PL) 112-154 amends 38 U.S.C. sections 5103 and 5103A to
streamline the VA’s duty-to-notify and duty-to-assist responsibilities. This
new law applies to VA’s notification and assistance obligations on or after
February 2, 2013.
PL 112-154 does not change the content of VA’s VCAA notice (now referred
to as Section 5103 notice). Instead, it provides VA the authority to engage
claimants in taking a more active role in claims development.
b. Elements of the Section 5103 Notice
Section 5103 notification is sent only in cases where VA is considering a denial
of benefits sought. The Section 5103 notice must inform the Veteran of the
following:
1. What information or medical evidence is needed to substantiate the claim.
2. What evidence and information is to be obtained by the claimant.
3. What evidence is VA’s responsibility (VA is required to notify the claimant
where it is unable to obtain the relevant records).
In cases where the evidence is sufficient to substantiate the claim and to grant
the benefit sought, it is unnecessary to send the Section 5103 notice indicating
what it takes to substantiate the claim.
2.08 Duty to Assist Criteria
a. Duty to Obtain Relevant Federal Records
VA’s duty to assist includes developing for all relevant records in the custody
of a federal department or agency; including VA medical records, service
medical records, Social Security Administration records, or evidence from
other federal agencies.
Relevancy is determined by what is being considered. Examples include:
• If a case manager is considering a determination of infeasibility due to
psychiatric or medical problems, and the Veteran claims to be actively
2-11
M28R, Part III, Section C, Chapter 2 March 31, 2014
receiving treatment at a VA Medical Center (VAMC), the case manager
must obtain copies of the treatment records from the VAMC prior to
making a decision on infeasibility.
• If a Veteran with a 10 percent disability rating appears to have an
Employment Handicap (EH) but no Serious Employment Handicap (SEH),
and the Veteran has a claim pending for increased compensation, the case
manager must review all relevant medical records related to the pending
claim for an increase in compensation prior to making a decision on the
issue of a SEH.
b. Duty to Obtain Relevant Non-Federal Records
The VA’s duty to assist also includes developing for private medical records,
employment records, state Workers’ Compensation records, educational
records, or state rehabilitation agency records.
If necessary, the Veteran can authorize the release of existing records using
VAF 21-4142, Authorization And Consent To Release Information to the
Department Of Veterans Affairs, (see Appendix O, VA Forms), or in a form
acceptable to the person, company, agency, or other custodian holding the
records.
If the Veteran does not provide the necessary release, the Veteran can obtain
and submit the identified records for consideration.
c. Refrain From or Discontinue Providing Assistance
VA will discontinue providing assistance in obtaining evidence for a claim if the
evidence obtained indicates that there is no reasonable possibility that further
assistance would substantiate the claim. Circumstances in which VA will
refrain from or discontinue providing assistance in obtaining evidence include
but are not limited to:
1. The claimant's ineligibility for the benefit sought because of lack of
qualifying service, lack of Veteran status, or other lack of legal eligibility.
2. Claims that are inherently not credible or clearly lack merit.
3. An application requesting a benefit to which the claimant is not entitled as
a matter of law.
4. The claimant's lack of cooperation in providing or requesting information or
evidence necessary to substantiate the claim.
2-12
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
a. Duty to Obtain Relevant Federal Records
b. Duty to Obtain Relevant Non-Federal Records
c. Refrain From or Discontinue Providing Assistance
Appendix O. VA Forms
2-ii
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
Chapter 2
VETERAN’S RIGHTS, RESPONSIBILITIES AND DUE PROCESS
2.01 Introduction
The scope of this chapter includes a description of Veterans’ rights and
responsibilities, information on providing notification of rights to a Veteran, due
process, adverse action notification, award action, and duty to assist. This
chapter also contains the statutory and regulatory provisions covering subject
matter related to Veterans’ rights, responsibilities and due process under Chapter
31.
2.02 References and Resources
Laws: 38 United States Code (U.S.C.) 5103
38 U.S.C. 5103A
38 U.S.C. 5112
38 U.S.C. 5113
Freedom of Information Act (FOIA)
Privacy Act of 1974
Public Law (PL) 112-154
Veterans Claims Assistance Act (VCAA)
Regulations: 38 Code of Federal Regulations (CFR) 3.103
38 CFR 21.324
38 CFR 21.420
VA Forms (VAF): VAF 21-4142, Authorization and Consent To Release
Information to the Department Of Veterans Affairs
VAF 28-8739a, Protection of Privacy Information Statement
VAF 28-0800, Vocational Rehabilitation and Employment
(VR&E) Program Orientation
VAF 4107, Your Rights to Appeal Our Decision
VAF 3288, Request for and Consent to Release of
Information from Claimant’s Records
Websites: www.foia.va.gov/FOIA_Fee_info.asp
www.foia.va.gov/FOIA_Offices.asp
www.foia.va.gov
2.03 Providing General Notice of Rights and Responsibilities
A Vocational Rehabilitation Counselor (VRC) or Employment Coordinator (EC)
(also referred to as case manager) is responsible for providing the general notice
2-1
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
of rights and responsibilities to Veterans.
a. During the initial interview, the VRC or EC will take the following actions:
1. Inform the Veteran of his/her rights and responsibilities.
2. Provide the Veteran with a copy of the signed VAF 28-0800, Vocational
Rehabilitation and Employment (VR&E) Program Orientation.
3. Inform the Veteran of current or future determinations that may affect
his/her receipt of benefits and services.
b. Veterans requesting or receiving benefits or services under the following
chapters are entitled to notification:
1. Chapter 18 – Benefits for Children of Vietnam Veterans and Certain Other
Veterans
2. Chapter 31 - Vocational Rehabilitation and Employment
3. Chapter 35 - Survivors' and Dependents' Educational Assistance
c. Definition of Terms
Whenever the term "Veteran" is used in the discussion of the rehabilitation
planning process, this term also includes a court-appointed legal custodian or
guardian of the Veteran. Similarly, the term "child" or "dependent" includes a
parent of a minor child or a court-appointed legal guardian or custodian. A
determination of incompetence solely for the purposes of appointing a
fiduciary to handle a Veteran's or an adult dependent's VA payments does not
by itself mean that the Veteran or adult dependent is not competent to apply
for and receive VR&E benefits. On the other hand, if a court with proper
jurisdiction has appointed a guardian or custodian, then the case manager
must develop the rehabilitation plan in cooperation with the guardian or
custodian. Similarly, a parent must assist in the development of and sign any
plan developed for a minor child.
2.04 Requirements Regarding the Privacy Act Statement and Freedom of Information
Act (FOIA)
a. Privacy Act Statement
The privacy act statement informs the Veteran and/or guardian that the
information he/she provides will not be used for any other purpose and that
responses may be disclosed outside the VA only if the disclosure is authorized
2-2
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
under the Privacy Act of 1974. During the initial meeting, the case manager
will provide VAF 28-8739a, Protection of Privacy Information Statement (see
Appendix O, VA Forms), explain the purpose of it and obtain an appropriate
signature from the Veteran or guardian. The case manager must file VAF 28-
8739a on the right flap of the Counseling/Evaluation/Rehabilitation (CER)
folder, and ensure the Veteran and/or guardian receives a signed copy of the
form.
b. Freedom of Information Act (FOIA)
The Freedom of Information Act (FOIA) is a federal law that gives United
States citizens the right to access government information upon request. It is
the VA's policy to release information to the fullest extent of the law provided
there is no foreseeable harm associated with the release.
c. Requesting Records Under FOIA
Individuals may request records under FOIA by following these steps:
1. Direct the individual to the VA FOIA website at www.foia.va.gov.
2. Ensure the request is in writing and signed by the person submitting the
request.
3. Describe the records so that they may be located with a reasonable
amount of effort.
4. State the requestor’s willingness to pay applicable fees or provide a
justification to support a fee waiver. For information on fees, go to
www.foia.va.gov/FOIA_Fee_info.asp.
5. Include a daytime telephone number.
The VA has a decentralized system for handling FOIA requests. All FOIA
requests should be addressed directly to any of the approximately 400
geographically dispersed components that may maintain the records the
requestor is seeking.
If the requestor knows the office that maintains the records he/she is
seeking, request that he/she send the request to that office or contact the VA
Central Office FOIA/Privacy Act Officer at www.foia.va.gov/FOIA_Offices.asp
for the custodian of the record.
2-3
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
d. Responding to FOIA Request
After receiving the FOIA request, the Regional Office FOIA officer will request
the Veteran’s file from VR&E. The VR&E Officer will request clarification from
the FOIA officer regarding whether the entire file is needed or just certain
information from it. Once that is clarified, the requested
information/documents will be taken to the FOIA office. Before providing the
information to the FOIA officer, VR&E will make a duplicate copy of file
information to continue providing appropriate services to the Veteran.
2.05 Protection of Privacy and Release of Information
a. Protection of Privacy
All files, records, reports and other documents pertaining to any claim filed
with the VA are confidential and privileged. The information in the Veteran’s
CER folder is developed and maintained to assist the Veteran in obtaining and
maintaining suitable employment or Independent Living (IL) services. This
information may not be communicated to others, nor may others use it
except in the following circumstances:
• To assist the Veteran in completing a comprehensive initial evaluation
• To assist the Veteran in pursuing his/her rehabilitation program
• To assist the Veteran in securing and adjusting to employment or rarely,
to provide information to protect the Veteran or others from harm
b. Release of Information to Outside Entities
The case manager may release information regarding a Veteran’s disability or
rehabilitation program to a vendor or establishment when all of the following
conditions are met:
• The case manager asked the vendor or establishment to provide services
to the Veteran
• The information is directly related to the services authorized to the
Veteran
• The Veteran authorized the release of information in writing
• All Personal Identification Information (PII) must be redacted before
providing information except where the Social Security Number (SSN) is
used as the student’s ID number
2-4
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
The Veteran may provide signed written authorization or utilize VAF 3288,
Request for and Consent to Release of Information from Claimants Records
(Appendix O, VA Forms). The authorization will remain in effect for the
duration of the Veteran’s rehabilitation program unless otherwise indicated.
Note: The case manager must obtain a separate signed release of
information prior to releasing information to organizations or individuals not
directly involved in providing rehabilitation services.
c. Review of Sensitive Information in Veteran’s Record
Sensitive information is defined as information that, if disclosed to the
individual, may have a serious adverse effect on the individual's mental or
physical health. Such information may require explanation, or interpretation,
by an intermediary, or assistance in the information's acceptance and
assimilation in order to preclude an adverse impact on an individual's mental
or physical health.
When individuals request access to their records (which includes medical,
social, and/or psychological information), the VRC must review the record to
determine whether the medical and/or psychological information could cause
harm to the individual. There will be instances where medical and mental
health notes are placed in the CER, however, Compensation and Pension
Records Interchange (CAPRI) information should not be in the CER per
current VBA policy. If, upon review, the VRC concludes that the information
may cause harm, the request and related documents must be referred back
to the designated VA medical provider, private physician or mental health
provider who prepared the information to determine if the record can be
disclosed directly to the individual.
Where denial of a request for access is made, the VRC must fully document in
a CWINRS note the justification for making the denial. The note must
specifically state that the medical or mental health information was referred
back to the VA medical provider, private physician, or mental health provider
that prepared the information to determine if it can be provided, and that the
information was removed from the CER prior to providing the Veteran access
to the record.
d. Rehabilitation Service Providers
When a case manager releases information to vendors or establishments
providing rehabilitation services, he/she must include a written notice that the
information is strictly confidential, is furnished solely for the purpose of
enabling the vendor or establishment to assist the Veteran in his/her
2-5
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
rehabilitation program, and cannot be released to other parties. The Veteran
does not have to sign a release when services are being contracted out.
However, a release is required when a referral is made to a Disabled
Veterans’ Outreach Program (DVOP) specialist or Local Veterans’ Employment
Representative (LVER).
e. Release of Information to Potential Employers
VA and other rehabilitation service providers should release to employers only
information that they need to know and only with a signed release from the
individual. Employers may not ask job applicants about the existence,
nature, or severity of a disability. Applicants may be asked about their ability
to perform specific job functions. A job offer may be conditional pending the
results of a medical examination, but only if the examination is required for
all employees considering similar jobs.
2.06 Procedures for Providing Due Process
a. Definition of Terms
1. Due process in the administration of VA benefits requires that the case
manager inform the beneficiary of a proposed adverse action that could
reduce, deny, or terminate benefits, and provide the beneficiary with the
opportunity to provide additional evidence to contest the action, and/or
request a meeting with his/her case manager.
2. An adverse action denies benefits and/or services, reduces or otherwise
lessens benefits or services, or terminates benefits.
b. Entitlement to Notification
The following parties are entitled to notification of any decision made by the
VA that affects the payment of benefits or the granting of relief:
• Beneficiaries
• Guardians of minor beneficiaries
• Fiduciaries of Veterans rated or deemed incompetent
• Beneficiaries’ designated representatives
c. General Notification Requirements for an Adverse Action or a Proposed
Adverse Action
2-6
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
When feasible, the case manager will meet with the Veteran to discuss any
adverse actions. However, this personal discussion does not replace the
written notification to the Veteran as required by 38 CFR 21.420.
Every notification letter for an adverse action or a proposed adverse action
must include the following elements:
1. Nature of the decision
2. Effective date of the decision
3. Reason(s) for the decision
4. Evidence that was considered, and the right of the Veteran to present new
evidence, request a personal meeting, and have representation
5. Veteran’s right to present new evidence, request a personal meeting, and
have representation within a 30-day period from the date of the
notification letter
It is important to note that VAF 4107 does not need to be sent with the
notice of proposed adverse action. The case manager must only send VAF
4107, Your Rights to Appeal Our Decision (see Appendix O, VA Forms), with
the final notice of adverse action once the action has taken place.
d. Types of Notification
1. There are two types of due process notification used to inform a
beneficiary of a change in benefits:
• Changes that do not require notification prior to taking an adverse
action
• Changes that require notification prior to taking an adverse action
2. The notification for an adverse action or proposed adverse action is
determined by the following source of information:
(a) Third Party
A notification of a proposed adverse action must be sent to the
Veteran to inform him/her of a proposed change in his/her benefits, if
the source of information is received from a third party. The letter
should advise the Veteran of the information received, explain the
effect it may have on his/her benefit, and allow the Veteran to offer
2-7
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
evidence or argument that shows why the proposed action should not
be taken.
(b) Veteran
A notification for the adverse action must be sent to the Veteran to
inform him/her about the change in his/her benefits, if the source of
information is the Veteran. The letter should explain that the
information he/she submitted has affected his/her entitlement and the
extent of the effect. A notice of proposed adverse action may be
required. Refer to section 2.06.e to determine when an adverse
actions does not require prior notification.
For more information on the right to notification, see 38 CFR 3.103(b)(2)
and 38 CFR 21.420.
e. Adverse Actions that Do Not Require Prior Notification
The following instances do not require a notification prior to taking an
adverse action. The case manager must take the adverse action immediately
and send a written notice to the Veteran with a copy to his/her designated
representative.
1. Change in Training Time, Credit Hours
Per 38 CFR 21.420, changes in training time do not require prior
notification. The case manager must take the adverse action immediately
upon notification of the change. However, the case manager must ensure
that all necessary evidence and information from the Veteran and the
facility have been reviewed before taking the adverse action.
(a) If a Veteran notifies his/her case manager of a decrease in course
credits with an official school document confirming the decrease and
its effective date, the case manager must adjust the Veteran’s award,
and inform him/her in writing of the reduction in the subsistence
allowance (38 CFR 21.324(i)) and evidence to support mitigating
circumstances (see M28R.V.B.8 for more information on mitigating
circumstances).
(b) If a Veteran notifies his/her case manager of a decrease in course
credits without an official school document confirming the decrease
and its effective date, the case manager must contact the facility to
verify the change and its effective date, adjust the Veteran’s award,
and inform the Veteran in writing of the reduction in the subsistence
2-8
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
allowance. In addition, the case manager must ensure that the
amended certification is obtained from the facility and filed in the
Veteran’s CER folder.
(c) If a facility informs the case manager of a change in training time, with
or without confirmation of a change from the Veteran, the case
manager must adjust the Veteran’s award and inform the Veteran in
writing of the reduction in the subsistence allowance. In addition, the
case manager must ensure that the amended certification is obtained
from the facility and filed in the Veteran’s CER folder.
2. Terminating an Award Upon Notification of Death
A notice of termination of benefits is not required when VA receives
evidence that the Veteran has died. Once a notice of death is received,
the case manager must immediately terminate the award effective the
date of Veteran’s death (38 CFR 21.324(b) and M28R.V.B.8).
f. Adverse Actions that Require Prior Notification
1. Benefit Changes Requiring a Notice of Proposed Adverse Action
Generally, the VA must send the Veteran and his/her designated
representative (if any), a notice of proposed adverse action prior to taking
any unfavorable action affecting the Veteran’s benefit, including
discontinuance, rehabilitation and of benefits and/or services.
(a) Discontinuance
The case manager must send the Veteran a letter notifying him/her
and his/her designated representative of the interruption when
discontinuance is anticipated and interruption of services is required.
This notification is required prior to closing the Veteran’s case.
(b) Rehabilitation
The case manager must send prior notification to the Veteran and
his/her designated representative when rehabilitation closure is
proposed as a result of the Veteran’s:
• Pursuit of further education, or
• Employment in suitable employment other than the planned goal,
or
2-9
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
• When third party information is used and no verification from the
Veteran, or
• When all objectives of an IILP have not been achieved
(c) Reduction in Subsistence Allowance Following the Loss of a Dependent
Where a reduction in subsistence allowance is proposed by reason of
information concerning dependency received from a source other than
the Veteran, VA will:
(1) Prepare a proposal for the reduction of subsistence allowance,
setting forth material facts and reasons
(2) Notify the Veteran at his/her latest address of record of the
proposed action
(3) Furnish detailed reasons for the proposed reduction
(4) Inform the Veteran that he/she has an opportunity for a
predetermination hearing, provided that VA receives a request for
such a hearing within 30 days from the date of the notice; and
(5) Give the Veteran 60 days for the presentation of additional
evidence to show that the subsistence allowance should be
continued at its present level. (Authority: 38 U.S.C. 5112, 5113)
2. Procedures for Providing Notices of Proposed Adverse Action
(a) Send the Veteran a notice of proposed adverse action. Follow
guidelines specified in this chapter.
(b) Establish the proposed adverse action period specifying that the
Veteran has 30 days to respond before any adverse action is executed.
(c) Respond to the information and/or evidence submitted by the Veteran,
if any, during the proposed adverse action period.
(d) If the Veteran does not respond to the notification for the proposed
adverse action, send final notification of the decision advising the
Veteran of the decision and how it affects his/her entitlement to
further benefits, the effective date, the detailed reasons for the
decision, and his/her appellate rights.
2-10
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
3. Due Process Period
For a required prior notification, VA must allow at least 30 days for the
Veteran to respond before finalizing the adverse action. If circumstances
warrant, VA may exceed this 30-day period, but the due process may not
exceed 60 days.
2.07 Section 5103 Notice (Formally Known as the VCAA Notice)
a. Background
On November 9, 2000, Congress enacted the Veterans Claims Assistance Act
(VCAA) which provided that VA has a duty to assist a claimant who files a
substantially complete application in obtaining evidence to substantiate
his/her claim before making a decision on the claim. The law eliminated the
concept of a well-grounded claim, redefined VA’s duty to assist and mandated
specific notice requirements.
Public Law (PL) 112-154 amends 38 U.S.C. sections 5103 and 5103A to
streamline the VA’s duty-to-notify and duty-to-assist responsibilities. This
new law applies to VA’s notification and assistance obligations on or after
February 2, 2013.
PL 112-154 does not change the content of VA’s VCAA notice (now referred
to as Section 5103 notice). Instead, it provides VA the authority to engage
claimants in taking a more active role in claims development.
b. Elements of the Section 5103 Notice
Section 5103 notification is sent only in cases where VA is considering a
denial of benefits sought. The Section 5103 notice must inform the Veteran
of the following:
1. What information or medical evidence is needed to substantiate the claim.
2. What evidence and information is to be obtained by the claimant.
3. What evidence is VA’s responsibility (VA is required to notify the claimant
where it is unable to obtain the relevant records).
In cases where the evidence is sufficient to substantiate the claim and to
grant the benefit sought, it is unnecessary to send the Section 5103 notice
indicating what it takes to substantiate the claim.
2-11
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
2.08 Duty to Assist Criteria
a. Duty to Obtain Relevant Federal Records
VA’s duty to assist includes developing for all relevant records in the custody
of a federal department or agency; including VA medical records, service
medical records, Social Security Administration records, or evidence from
other federal agencies.
Relevancy is determined by what is being considered. Examples include:
• If a case manager is considering a determination of infeasibility due to
psychiatric or medical problems, and the Veteran claims to be actively
receiving treatment at a VA Medical Center (VAMC), the case manager
must obtain copies of the treatment records from the VAMC prior to
making a decision on infeasibility.
• If a Veteran with a 10 percent disability rating appears to have an
Employment Handicap (EH) but no Serious Employment Handicap (SEH),
and the Veteran has a claim pending for increased compensation, the case
manager must review all relevant medical records related to the pending
claim for an increase in compensation prior to making a decision on the
issue of a SEH.
b. Duty to Obtain Relevant Non-Federal Records
The VA’s duty to assist also includes developing for private medical records,
employment records, state Workers’ Compensation records, educational
records, or state rehabilitation agency records.
If necessary, the Veteran can authorize the release of existing records using
VAF 21-4142, Authorization And Consent To Release Information to the
Department Of Veterans Affairs, (see Appendix O, VA Forms), or in a form
acceptable to the person, company, agency, or other custodian holding the
records.
If the Veteran does not provide the necessary release, the Veteran can obtain
and submit the identified records for consideration.
c. Refrain From or Discontinue Providing Assistance
VA will discontinue providing assistance in obtaining evidence for a claim if
the evidence obtained indicates that there is no reasonable possibility that
further assistance would substantiate the claim. Circumstances in which VA
will refrain from or discontinue providing assistance in obtaining evidence
2-12
M28R, Part III, Section C, Chapter 2 Revised March 31, 2014
include but are not limited to:
1. The claimant's ineligibility for the benefit sought because of lack of
qualifying service, lack of Veteran status, or other lack of legal eligibility.
2. Claims that are inherently not credible or clearly lack merit.
3. An application requesting a benefit to which the claimant is not entitled as
a matter of law.
4. The claimant's lack of cooperation in providing or requesting information
or evidence necessary to substantiate the claim.
2-13