What this means
m21-1:X.v.2.A explains evaluating a pending claim when a veteran returns to active duty. In plain terms, the official guidance says reentry into active duty generally does not affect a Veteran’s potential entitlement to VA benefits. However, a Veteran who is on active duty cannot receive both active service pay and VA compensation for the same period. It also addresses until we can fulfill our duty to assist you in obtaining this evidence, we are suspending action on your claim.
How this may help with a claim
Use m21-1:X.v.2.A when organizing evidence or checking VA's handling of evaluating a pending claim when a veteran returns to active duty. Compare your application, supporting records, and notice with this source-specific point: Reentry into active duty generally does not affect a Veteran’s potential entitlement to VA benefits. Until we can fulfill our duty to assist you in obtaining this evidence, we are suspending action on your claim. 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: 1. Evaluating Pending Claims When a Veteran Returns to Active Duty
- Confirm that the record or notice addresses this source point: VA may not deny a claim solely because the veteran or claimant’s return to active duty temporarily prevents VA from conducting an examination or other required procedure.
- Document how this stated step or exception applies: If the Veteran is available to attend an examination while on active duty, then proceed with the examination.
Important limits
m21-1:X.v.2.A explains VA guidance for evaluating a pending claim when a veteran returns to active duty; 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: Reentry into active duty generally does not affect a Veteran’s potential entitlement to VA benefits. If the request is only for resumption of the prior claim, then there is no prescribed form required for the request.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Evaluating a Pending Claim When a Veteran Returns to Active Duty
- m21-1:X.v.2.A
- Evaluating Pending Claim
- When Veteran Returns
- Evaluating Pending Claims When
- effect return active duty
- Department benefits
- Veteran claim
Original VA guidance
The official VA text of this section
Overview
In This Section
This section contains the topic “ Evaluating Pending Claims When a Veteran Returns to Active Duty.”
1. Evaluating Pending Claims When a Veteran Returns to Active Duty
Introduction
This topic contains procedures for evaluating claims that are pending when a Veteran returns to active duty, including
- effect of return to active duty on
- Department of Veterans Affairs (VA) benefits, and
- a Veteran’s claim
- suspending action on a claim due to return to active duty
- exhibit of free text for decision notice for partial deferral of claims pending at return to active duty
- method of requesting resumption of suspended claim
- time limit for requesting resumption of suspended claim
- resumption of suspended claims, and
- effect of delay in examining a Veteran due to return to active duty.
Change Date
September 9, 2022
X.v.2.A.1.a. Effect of Return to Active Duty on VA Benefits
Reentry into active duty generally does not affect a Veteran’s potential entitlement to Department of Veterans Affairs (VA) benefits. However, a Veteran who is on active duty cannot receive both active service pay and VA compensation for the same period.
Reference: For more information on the effect of a return to active duty on VA benefits, including the election of benefits during the period of active duty, see
- VAOPGCPREC 10-2004
- M21-1, Part X, Subpart v, 2.B
- 38 CFR 3.654
- 38 CFR 3.700(a)(1)
- 10 U.S.C. Section 12316, and
- 38 U.S.C. 5304.
X.v.2.A.1.b. Effect of Return to Active Duty on a Veteran’s Claim
A Veteran’s reentry into active duty generally does not alter the legal rights and responsibilities of the Veteran and VA with respect to pending claims.
- The statutes and regulations requiring VA to provide notice and assistance apply to claimants who have returned to active duty to the same extent as to all other claimants.
- VA may not deny a claim solely because the claimant’s return to active duty temporarily prevents VA from conducting an examination or other required procedure. VA may suspend or defer action on a claim until the Veteran becomes available for examination or other action.
Notes:
- If the Veteran is available to attend an examination while on active duty, then proceed with the examination.
- If a Veteran dies following return to active duty but before a pending claim is decided, the pending claim may provide the basis for an award of accrued benefits. Accrued benefits consist only of amounts due and unpaid to the deceased beneficiary.
Reference: For more information on entitlement to accrued benefits based on a claim pending at the time of the Veteran’s death, see
- M21-1, Part XI, Subpart ii, 3
- Jones v. Brown, 8 Vet.App. 558 (1996), and
- VAOPGCPREC 10-2004.
X.v.2.A.1.c. Suspending Action on a Claim Due to Return to Active Duty
If a Veteran’s return to active duty renders VA unable to accomplish the duty to assist via requesting an examination, obtaining STRs, or fulfilling any other required development action, follow the steps in the table below to suspend action on the pending claim.
Scroll sideways to see the full table.
| Step | Who Is Responsible | Action |
|---|---|---|
| 1 | development activity | Upon determining that a necessary development action cannot be completed due to the Veteran’s return to active duty status, ensure that all remaining development actions that can be completed have been undertaken. Refer the claim to the rating activity, if rating issues are pending, or authorization activity, if no rating issues are pending. |
| 2 | rating activity (or authorization activity if authorization issues not requiring rating action are claimed) | Review the evidence of record to determine whether the development that cannot be undertaken impacts each claimed issue. Refer to the table below for proper actions to take based on whether the incomplete development impacts the outcome of a claim. |
| 3 | authorization activity | Use the table below to determine the proper notification actions to take when VA cannot decide a claim due to a Veteran’s return to active duty during the pendency of a claim. |
X.v.2.A.1.d. Exhibit: Free Text for Decision Notice for Partial Deferral of Claims Pending at Return to Active Duty
Include the free text below in the What We Decided portion of the decision notice letter when
- a partial decision is made on some issues but other issues are deferred, and
- a claim must be suspended due to a Veteran’s return to active duty.
We received notification that you have returned to active duty. Because of your return to active duty, we are unable to fulfill our legal requirements to assist you in obtaining the evidence necessary to make a decision on some issues you have claimed. Specifically, we are unable to [insert description of development action that cannot be completed]. Without this evidence, we cannot determine entitlement to some of the benefits you are seeking. A claim cannot be denied due solely to your return to active duty.
Until we can fulfill our duty to assist you in obtaining this evidence, we are suspending action on your claim.
[If the incomplete development includes inability to schedule an examination, insert the following paragraph.]
If you are able to report for a medical examination to evaluate the claimed condition(s) while on active duty, please notify us of your availability and advise us of your location so that the examination may be scheduled at a VA facility in your current area.
When you are released from the current period of active duty, please notify us of your release, and advise us that you wish to resume action on your claim. If we receive notification that you wish to resume action on the current claim within one year after your release from the current period of active duty, then we will be able to grant benefits, when warranted, based on the date of receipt of your original claim. If we do not receive notice within one year, then your original claim will be considered abandoned.
X.v.2.A.1.e. Method of Requesting Resumption of Suspended Claim
Upon release from active duty, the Veteran must notify VA of the release from active duty and request to resume a claim previously suspended as a result of the inability to develop the claim due to the return to active duty.
If the request is only for resumption of the prior claim, then there is no prescribed form required for the request. However, if new issues are claimed, the new issues must be claimed on the appropriate prescribed form.
X.v.2.A.1.f. Time Limit for Requesting Resumption of Suspended Claim
To preserve the original effective date, the request to resume the suspended claim must be received within one year after the Veteran’s release from the period of active duty that resulted in suspension of the claim. If the request to resume the suspended claim is not received within one year of the release from the period of active duty that resulted in suspension of the claim, consider the claim abandoned.
For an abandoned claim
- there is no requirement to provide notice, including notice of review rights, and
- a subsequent claim for an abandoned issue is considered a new claim.
Note: If a subsequent claim for service connection is received and previously deferred issues remain on the Codesheet but were abandoned due to the failure to request timely resumption of the claim, delete the deferred issues from the Codesheet. As the prior claims were undecided, they should not be shown as denied issues on the Codesheet. Rather, treat a subsequent claim for a previously abandoned issue as a new claim and do not require the submission of new and relevant evidence.
References: For more information on
- abandoned claims, see
- 38 CFR 3.158
- M21-1, Part II, Subpart i, 2.C.6, and
- M21-1, Part VI, Subpart i, 1.A.4.c, and
- active service pay, see 38 CFR 3.654.
X.v.2.A.1.g. Resumption of Suspended Claims
Follow the steps in the table below upon receipt of a request to resume a previously suspended claim following a Veteran’s release from active duty.
Scroll sideways to see the full table.
| Step | Who Is Responsible | Action |
|---|---|---|
| 1 | intake processing center | Review the EP history to determine whether the prior EP was cleared or canceled. Use the table below to determine the appropriate EP action to take upon receipt of a request for resumption of a suspended claim. Note: If new issues are being claimed, the new issues will be controlled under the same EP controlling the resumption of the suspended claim. |
| 2 | development activity | Undertake whatever development is necessary for previously suspended issues, and newly received claimed issues, if applicable. Note: If more than one year has passed since the Veteran was last provided notice under Section 5103 (via any of the accepted methods identified in M21-1, Part II, Subpart iii, 1.C.2.a) for the deferred issues from the suspended claim, send the appropriate Section 5103 notice. Reference: For more information on Section 5103 notice requirements, see M21-1, Part III, Subpart i, 2.B. |
| 3 | rating activity (or authorization activity if non-rating issues are present) | Use the table below to determine which issues to address in the decision. Reference: For more information on handling a Veteran’s return to and discharge from an additional period of active duty, see M21-1, Part X, Subpart v, 2.B. |
| 4 | authorization activity | Remove the Returned to Active Duty corporate flash from the Veteran’s VBMS record after all issues that were deferred at the time of return to active duty have been decided. |
Reference: For more information on reinstatement of compensation following a release from active duty, see M21-1, Part X, Subpart v, 2.B.
X.v.2.A.1.h. Effect of Delay in Examining a Veteran Due to Return to Active Duty
When a Veteran is unavailable for examination for an extended period due to return to active duty, the lapse of time may make it difficult to determine the nature and extent of the Veteran’s disability for past periods relevant to the claim. Consider all relevant evidence of record to ascertain the level of disability for prior periods of time. Such evidence includes, but is not limited to
- medical records from the most recent period of active duty
- an examiner’s opinion, expressed to the extent possible, concerning the Veteran’s disability over the relevant past periods
- private treatment records, and
- non-medical evidence, including lay statements, describing the impact of the claimed mental or physical condition on the Veteran’s performance of duties.