Failure to Report for Review Examinations

Overview

In This Section

This section contains the following topics:

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1. General Information on the Impact of Failure to Report for a Review Examination

Introduction

This topic contains general information on the impact of a Veteran’s failure to report for a review examination, including

• required discontinuation or reduction of payments
• referring cases to the rating activity
• general process when a Veteran fails to report for a review examination, and
• handling returned mail notifying the Veteran of a scheduled review examination.

Change Date

September 15, 2021

IV.ii.2.B.1.a. Required Discontinuation or Reduction of Payments

When a current examination is needed to confirm a Veteran’s continued entitlement to disability benefits, and the Veteran, without good cause, fails to report for the examination, the Department of Veterans Affairs (VA) is required under 38 CFR 3.655 to

• discontinue payment for the disability(ies) for which the examination was scheduled, or
• reduce payment for the disability(ies) for which the examination was scheduled to a
• minimum evaluation established under 38 CFR Part 4, or
• lower evaluation
• protected under 38 CFR 3.951(b), or
• supported by a review of alternative evidence of record, when warranted, without the review examination.

Note: Reduction or discontinuation of payments under 38 CFR 3.655(c) is not required if the evidence of record is sufficient to justify continuation of a current disability evaluation.

References: For more information on

• handling a Veteran’s failure to report for an examination scheduled in connection with an initial or supplemental claim, see
• 38 CFR 3.655(b), and
• M21-1, Part IV, Subpart i, 2.F, and
• the definition of good cause, see M21-1, Part IV, Subpart i, 2.F.1.b.

IV.ii.2.B.1.b. Referring Cases to the Rating Activity

Refer any notice that a Veteran failed to report for a scheduled review examination to the rating activity except when a better address is found, as described in M21-1, Part IV, Subpart i, 2.F.1.d.

Based on the evidence of record, the rating activity will prepare a failure to report (FTR) rating decision that conforms to the standards discussed in M21-1, Part IV, Subpart ii, 2.B.2.

IV.ii.2.B.1.c. General Process When a Veteran Fails to Report for a Review Examination

The table below provides an overview of the stages involved in the process of addressing a Veteran’s failure to report for a review examination.

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IV.ii.2.B.1.d. Handling Returned Mail Notifying the Veteran of a Scheduled Review Examination

If a VA medical facility advises that mail notifying a Veteran of a scheduled VA review examination has been returned as undeliverable by the United States Postal Service (USPS), follow the procedures outlined in M21-1, Part IV, Subpart i, 2.F.1.c and d.

2. Rating Cases Involving Failure to Report for a Review Examination

Introduction

This topic contains information about rating cases involving failure to report for a review examination, including

• preliminary rating analysis
• definition of a static disability
• preparation of an FTR rating
• addressing absence of good cause in the rating decision
• rating considerations for the proposed decision
• possible scenarios after the proposed decision is issued
• finalizing the proposed rating action, and
• handling failure to report for examination by a Veteran receiving pension.

Change Date

September 15, 2021

IV.ii.2.B.2.a. Preliminary Rating Analysis

Under 38 CFR 3.655(c)(2), the reduction/discontinuation of benefits discussed in M21-1, Part IV, Subpart ii, 2.B.1.a, must follow the administration of due process, which includes

• a notice of proposed adverse action
• a 60-day period to indicate willingness to report for a reexamination or to present evidence that payment for the disability (or disabilities) for which the reexamination was scheduled should not be discontinued or reduced, and
• the opportunity to request a hearing.

Important:

• Prior to initiating action, ensure that
• good cause was not furnished as a reason for failing to report, and
• the disability scheduled for reexamination is not
• static, or
• protected under 38 CFR 3.951 (b) or 38 CFR 3.957.
• 38 CFR 3.655 does not apply in situations where the Veteran fails to report for a reexamination and any associated reduction does not impact the overall combined disability evaluation.
• In these situations, reduce or terminate the disability associated with the failure to report as provided in 38 CFR 3.500.
• Generally, the appropriate effective date for the reduction in this scenario is the date of facts found that support the reduction. When the reduction is prompted by the failure to report and there is no other medical evidence of record, the date of the rating decision corresponds with the date on which facts are found to support the reduction.

References: For more information on

• the definition of a static disability, see M21-1, Part IV, Subpart ii, 2.B.2.b
• good cause for not reporting to an examination, see M21-1, Part IV, Subpart i, 2.F.1.b, and
• submission of other evidence as good cause for failure to report for an examination, see Kowalski v. Nicholson, 19 Vet.App. 171 (2005).

IV.ii.2.B.2.b. Definition: Static Disability

A static disability is a disability that is considered permanent by its nature, history, and severity. It is assigned a permanent evaluation without the need for future examinations to determine whether or not it has improved.

IV.ii.2.B.2.c. Preparation of an FTR Rating

When a Veteran fails to report for a review examination without good cause, and results of said examination are deemed necessary to ensure continued entitlement at the assigned level of evaluation, the rating activity must

• review the claims folder for information about the other service-connected (SC) disabilities, and
• prepare an FTR rating decision tailored to the facts of the individual case.

Use the table below to determine how to frame an FTR rating.

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Note: When a Veteran fails to report for a review examination that is, upon further analysis, unnecessary to determine continued entitlement, follow the procedures in M21-1, Part IV, Subpart ii, 2.A.

Reference: For a definition of static disability, see M21-1, Part IV, Subpart ii, 2.B.2.b.

IV.ii.2.B.2.d. Addressing Absence of Good Cause in the Rating Decision

In every case where a Veteran fails to report for an examination, the rating decision must document VA’s attempts to examine the Veteran and address the issue of good cause.

Use the table below to determine how to address the issue of a Veteran’s failure to report for an examination without good cause.

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IV.ii.2.B.2.e. Rating Considerations for the Proposed Decision

As required by 38 CFR 3.655(c), a notice of proposed adverse action should be furnished to the Veteran after it is determined that a reduction or termination of an SC disability is in order.

The rating decision should

• review any current medical evidence of record in the claims folder
• discuss all available evidence that pertains to the disability under review
• include the proposed new or continuing disability evaluation(s) for all disabilities under review, and
• provide a proposed combined evaluation for all SC disabilities.

Note: Do not include an effective date of the proposed reduction or termination.

References: For more information on

• preparation of proposed ratings, including the necessity of providing notice under the proper regulation, see M21-1, Part X, Subpart ii, 3.D, and
• completing a new rating decision following receipt of additional evidence that changes the reason for a proposed reduction, see
• M21-1, Part X, Subpart ii, 3.A, and
• M21-1, Part X, Subpart ii, 3.D.1.g.

IV.ii.2.B.2.f. Possible Scenarios After the Proposed Decision Is Issued

See the table below for action to take based on response received or no response during the due process period.

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IV.ii.2.B.2.g. Finalizing the Proposed Rating Action

Complete rating action to finalize the proposed decision prior to authorization action to reduce benefits. If additional evidence is received during the 60-day period, review the evidence to determine the proper action to take.

Refer to the table below for more information on finalizing the proposed rating decision.

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Notes:

• Code all disabilities with their new, continuing, and combined evaluations.
• Include noncompensable SC disabilities.
• Consider a compensable rating under 38 CFR 3.324, if applicable.
• The effective date of the reduced evaluation under 38 CFR 3.655 implementation will be the later of the following:
• the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share, or
• the date indicated in the notice of proposed adverse action.
• Use the effective date the award will be reduced as the effective date for the new combined evaluation.

References: For more information on

• authorization action in cases of reduction or discontinuance for failure to report for review examination see, M21-1, Part IV, Subpart ii, 2.B.3, and
• completing a new rating decision following receipt of additional evidence that changes the reason for a proposed reduction, see M21-1, Part X, Subpart ii, 3.D.1.g.

IV.ii.2.B.2.h. Handling Failure to Report for Examination by a Veteran Receiving Pension

A Veteran receiving pension, by definition, has been rated permanently and totally disabled.

However, if a reason to review eligibility does come up and the Veteran fails to report for the examination, review available medical evidence of record to determine continued eligibility. This includes entitlement to SMP.

Use the table below to determine which action to take based on review of the available medical evidence of record.

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Note: Each known disability has to be reviewed for the purpose of updating evaluations assigned and determining if the criteria for permanent and total disability continues to be met.

Reference: For more information on final action after the due process period see M21-1, Part IV, Subpart ii, 2.B.2.g.

3. Processing Rating Decisions Involving Failure to Report for a Review Examination

Introduction

This topic contains information on processing rating decisions involving failure to report for a review examination, including

• notification of an FTR rating decision
• handling a Veteran’s
• willingness to report for an examination
• request for a hearing, and
• failure to respond to an FTR rating decision
• when to
• adjust payments, and
• return the case to the rating activity, and
• handling
• reductions in the combined evaluation
• military retired pay (MRP) cases
• abandoned claims, and
• other special situations.

Change Date

September 15, 2021

IV.ii.2.B.3.a. Notification of an FTR Rating Decision

When the rating activity prepares an FTR rating decision, send the Veteran a notice of proposed adverse action that

• advises that
• VA must discontinue or reduce, as appropriate, compensation payments because the Veteran did not report for a scheduled examination deemed necessary to determine the current degree of disability severity, and
• discontinued or reduced payment, if implemented, will be effective as of the later of the
• first day of the month 60 days after the Veteran is notified of the proposed adverse action, or
• date of last payment
• lists the current
• combined disability evaluation, and
• monthly rate of compensation payment
• identifies the
• individual disability(ies) subject to proposed reduction, as well as the current and proposed evaluation(s)
• proposed combined evaluation, post-reduction, and
• proposed monthly rate of reduced compensation payment
• furnishes due process rights, and
• asks the Veteran to respond if now ready to report for an examination.

If the Veteran does not respond within 65 days, return the case for preparation of a final rating decision, as discussed in M21-1, Part IV, Subpart ii, 2.B.3.f.

Important: As discussed in M21-1, Part X, Subpart ii, 3.D.1.e, the effective date conventions for reduced or discontinued payment associated with a Veteran’s failure to report for a necessary review examination under 38 CFR 3.655 differ significantly from those for reduced or discontinued payment associated with a revised rating decision under 38 CFR 3.105. For this reason, and in the interest of preventing prolonged payment of potentially undue benefits, it is imperative that notices of proposed adverse action based upon a Veteran’s failure to report for examination

• be judiciously generated using the appropriate letter type in the corresponding claims-processing application, and
• communicate a proposed effective date outcome consistent with the guidance in this block.

Reference: For more information on the appropriate letter selection in the Veterans Benefits Management System (VBMS) to generate a notice of proposed adverse action based on a Veteran’s failure to report for a review examination, see the VBMS User Guide.

IV.ii.2.B.3.b. Handling a Veteran’s Willingness to Report for an Examination

Use the table below to determine how to handle a Veteran’s willingness to report for a VA examination in response to an FTR rating decision.

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References: For more information on

• contemporaneous notices, see M21-1, Part X, Subpart ii, 3.C, and
• considering good cause when a Veteran fails to report, see M21-1, Part IV, Subpart i, 2.F.1.b.

IV.ii.2.B.3.c. Handling a Veteran's Request for a Hearing

Upon request, the Veteran is entitled to a hearing to introduce, in person, any available evidence believed to be pertinent in connection with the proposed adverse action.

If the Veteran’s request for a hearing is received within 30 days of the date of the notice of proposed adverse action,

• continue the EP, and
• do not adjust the Veteran’s award until either
• the hearing is held, any evidence requested as a result of the hearing is received or deemed unobtainable, and a final rating decision is made, or
• the Veteran fails to appear for the hearing without good cause.

Reference: For more information on what action to take when a hearing is requested, see M21-1, Part X, Subpart ii, 3.B.

IV.ii.2.B.3.d. Handling a Veteran’s Failure to Respond to an FTR Rating Decision

Use the table below to determine the action to take if the Veteran fails to respond to notification of an FTR rating decision proposing reduction or termination of compensation payments.

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IV.ii.2.B.3.e. When to Adjust Payments

Do not create an overpayment solely because a Veteran failed to report for a scheduled examination, even under circumstances in which

• the regional office has lost internal control of the underlying proposal, and
• payments have been unduly continued beyond the normal due process period.

In all such cases, discontinue or reduce compensation payments effective as of the later of the following:

• the date in the LAST PAID DATE field on the AWARD INFORMATION tab in Share, or
• the date indicated in the notice of proposed adverse action.

IV.ii.2.B.3.f. When to Return the Case to the Rating Activity

If the Veteran does not respond to the notice of proposed adverse action within 65 days, return the case to the rating activity for preparation of a final rating decision that lists all disabilities with their new or continuing and combined evaluations.

Notes:

• After the final rating decision is complete, it will be referred back to the authorization activity for action.
• The authorization activity must ensure the corporate record is updated to reflect the new rating information.

IV.ii.2.B.3.g. Handling Reductions in the Combined Evaluation

Normally, the new combined evaluation is the same as that shown in the initial FTR rating.

However, if the rating activity proposes to reduce the combined evaluation lower than the level originally proposed, send another notice of proposed adverse action before reducing the award based on the new combined evaluation. In this case,

• reduce the award as indicated in the original notice of proposed adverse action, and
• send another notice of proposed adverse action informing the Veteran of the proposed additional reduction.

IV.ii.2.B.3.h. Handling MRP Cases

If the Veteran receives military retired pay (MRP), action to suspend or discontinue compensation payments generates a notice to the appropriate service department retired pay center. The service department adjusts the Veteran’s MRP accordingly.

If the Veteran later reports for the examination and compensation payments are resumed or increased, follow the procedures in M21-1, Part VI, Subpart ii, 4.B concerning awards involving MRP.

IV.ii.2.B.3.i. Handling Abandoned Claims

Under 38 CFR 3.158(b), a Veteran who, without adequate reason, fails to report for a scheduled examination within one year of the date notified of the request gives up the right to benefits based on the claim involved.

Use the table below to determine how to handle different situations involving potentially abandoned claims.

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IV.ii.2.B.3.j. Handling Other Special Situations

For information on handling the failure of a(n)

• claimant to furnish requested evidence, see M21-1, Part VI, Subpart i, 1.A.4, and
• incompetent Veteran to report for an examination, see M21-1, Part X, Subpart ii, 6.D.1.b.