What this means
m21-1:I.i.1.B explains general information on due process. In plain terms, the official guidance says the Fifth Amendment to the U.S. Constitution ensures that citizens have the right of due process. It also addresses exceptions: Contemporaneous notice is allowed in lieu of a notice of proposed adverse action (due process) in specific situations as listed in M21-1, Part X, Subpart ii, 3.C.1, and 38 CFR 3.103(b)(3)
How this may help with a claim
Use m21-1:I.i.1.B when organizing evidence or checking VA's handling of general information on due process. Compare your application, supporting records, and notice with this source-specific point: The Fifth Amendment to the U.S. Constitution ensures that citizens have the right of due process. Exceptions: Contemporaneous notice is allowed in lieu of a notice of proposed adverse action (due process) in specific situations as listed in M21-1, Part X, Subpart ii, 3.C.1, and 38 CFR 3.103(b)(3) Save proof of submission and identify the exact condition, exception, or missing development step before requesting correction or choosing a review option.
What to review in your file
- Check the file against this official condition: provide additional evidence to contest the action, and/or
- Confirm that the record or notice addresses this source point: hold a hearing before VA decision-makers.
- Document how this stated step or exception applies: In most instances, due process applies when VA proposes to reduce or terminate a benefit. In a few situations, such as a character of discharge determination, due process applies before VA determines eligibility for benefits.
Important limits
m21-1:I.i.1.B explains VA guidance for general information on due process; it does not guarantee an award or replace the statutes, regulations, binding decisions, and review instructions that control an individual claim. Conditions and exceptions still matter, including this source point: The Fifth Amendment to the U.S. Constitution ensures that citizens have the right of due process. The third party information submitted on any forms, documents, or signed statements must, in and of itself, justify the adverse action.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- General Information on Due Process
- m21-1:I.i.1.B
- Due Process
- Process Benefits
- process
- U.S. Constitution
- entitlement notification
- definition third party information.
Original VA guidance
The official VA text of this section
Overview
In This Section
This section contains the following topics:
Scroll sideways to see the full table.
| Topic | Topic Name |
|---|---|
| 1 | Due Process and Department of Veterans Affairs (VA) Benefits |
| 2 | Types of Notification |
1. Due Process and VA Benefits
Introduction
This topic contains information about how due process, as stated in the U.S. Constitution, affects VA benefits, including
- due process and
- the U.S. Constitution, and
- VA
- entitlement to notification, and
- definition of third party information.
Change Date
January 29, 2018
I.i.1.B.1.a. Due Process and the U.S. Constitution
The Fifth Amendment to the U.S. Constitution ensures that citizens have the right of due process.
“ No person shall be deprived of life, liberty or property without due process of law.”
I.i.1.B.1.b. Due Process and VA
Due process in the administration of Department of Veterans Affairs (VA) benefits informs the beneficiary of a proposed adverse action that could reduce or terminate benefits, and provides the beneficiary with the opportunity to
- provide additional evidence to contest the action, and/or
- hold a hearing before VA decision-makers.
In most instances, due process applies when VA proposes to reduce or terminate a benefit. In a few situations, such as a character of discharge determination, due process applies before VA determines eligibility for benefits.
Exceptions: Contemporaneous notice is allowed in lieu of a notice of proposed adverse action (due process) in specific situations as listed in M21-1, Part X, Subpart ii, 3.C.1, and 38 CFR 3.103(b)(3)
References: For more information on
- definitions of notice of proposed adverse action and contemporaneous notice, see M21-1, Part I, Subpart i, 1.B.2.a, and
- due process, see 38 CFR 3.103.
I.i.1.B.1.c. Entitlement to Notification
The following parties are entitled to notification of any decision made by VA that affects the payment of benefits or the granting of relief
- beneficiaries
- fiduciaries of minor or incompetent beneficiaries, and
- beneficiaries’ designated representatives.
I.i.1.B.1.d. Definition: Third Party Information
Third party information is any information that is not received from the beneficiary or from the beneficiary’s fiduciary. Written correspondence is considered third party when received without the beneficiary’s signature or the signature of the beneficiary’s fiduciary.
The table below lists the types of third party informants and provides examples of the types of information they provide.
Scroll sideways to see the full table.
| Third Party Informant | Examples |
|---|---|
| VA medical facilities | Admission notices and reports that may result in hospital rate adjustments. Exception: A formal written notice of death. References: For more information on hospitalization adjustments, see 38 CFR 3.551, and adjustment of allowance for aid and attendance, see 38 CFR 3.552. |
| Field Examiners Legal Instrument Examiner (LIE), and beneficiary’s survivors | Notices and reports. Exceptions: Notices and reports may be considered first party sources when accompanied by documents provided by the beneficiary, such as copies of award letters or marital or dependency status certificates, or a signed, written statement from the beneficiary. A notice of proposed adverse action is not required when an LIE requests that a beneficiary’s award be suspended because of the fiduciary’s failure to furnish accounting activities. Important: Notices from Field Examiners may be considered first party notices when reported on a fully complete VA Form 27-0820, Report of General Information. Reference: For more information on completing a VA Form 27-0820, see M21-1, Part III, Subpart i, 2.D.1.f. |
| other possible sources | VA computer matches letters from friends and relatives reports from employers reports from other government and private agencies Social Security’s third party query system, or computer application used by VA. |
Note: The third party information submitted on any forms, documents, or signed statements must, in and of itself, justify the adverse action.
Reference: For more information on handling mail that could result in a reduction or termination of benefits, see M21-1, Part II, Subpart i, 2.D.3.
2. Types of Notification
Change Date
March 17, 2016
I.i.1.B.2.a. Types of Notification Concerning Change in Benefits
Two types of notification are used to inform a beneficiary of a change in benefits. They are
- notice of proposed adverse action, which informs a beneficiary of a proposed reduction or termination of benefits, and
- contemporaneous notice, which informs a beneficiary of a change in benefits that was implemented at the time the notice was sent.
Use the table below to determine the type of notice that should be used when information is received that would result in a reduction or termination of a beneficiary’s award.
Scroll sideways to see the full table.
| If the source of information is... | Then use a... |
|---|---|
| the beneficiary | contemporaneous notice to tell the beneficiary that the information submitted has affected entitlement and to what extent. Exception: All income verification matches (IVM) which identify a reduction or termination of benefits require a notice of proposed adverse action. References: For more information about contemporaneous notices, see M21-1, Part X, Subpart ii, 3.C, and IVM, see M21-1, Part XIV, 4.D. |
| a designated power of attorney (POA) submitting information originating from a beneficiary | contemporaneous notice to tell the beneficiary that the information submitted has affected entitlement and to what extent. |
| a designated POA submitting information not originating from a beneficiary | notice of proposed adverse action to tell the beneficiary of a proposed change, about the information received, and the effect it may have on benefits. Reference: For more information on general duties of a POA, see M21-1, Part I, Subpart i, 2.A.4.a. |
| a third party Reference: For more information on third party information, see M21-1, Part I, Subpart i, 1.B.1.d. | notice of proposed adverse action to tell the beneficiary of a proposed change, about the information received, and the effect it may have on benefits. References: For more information on notices of proposed adverse action, see M21-1, Part X, Subpart ii, 3.A, and sending a notice of proposed adverse action to a hospitalized Veteran, see M21-1, Part X, Subpart ii, 3.A.3.c. |
Note: When it is unclear whether information submitted by the POA originated from the beneficiary, the beneficiary may be contacted via telephone to verify the origin of the information. If the claimant cannot be reached, process as information not originating from a beneficiary.
References: For more information on
- receiving information via telephone that would reduce or discontinue benefits, see
- M21-1, Part X, Subpart ii, 3.C.2.a, and
- M21-1, Part III, Subpart i, 2.D.1
- providing notice of proposed adverse action, see
- 38 CFR 3.103(b)(2), and
- M21-1, Part X, Subpart ii, 3.A
- providing contemporaneous notice, see
- 38 CFR 3.103(b)(3), and
- M21-1, Part X, Subpart ii, 3.C, and
- handling notification from a beneficiary that will result in removal of a dependent, see M21-1, Part VII, Subpart i, 1.A.4.g.