Revised 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.cEntitlement 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.dDefinition: 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.
| 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 |
| Notices and reports.Exceptions:
|
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
-
Share computer application.
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.
2Types of Notification
Revised March 17, 2016
I.i.1.B.2.aTypes 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.
| 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
|
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 their benefit.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 their benefit.References: For more information on
|
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
-
providing notice of proposed adverse action, see
-
providing contemporaneous notice, see
-
handling notification from a beneficiary that will result in removal of a dependent, see M21-1, Part VII, Subpart i, 1.A.4.g.
End of Part I, Subpart i, Chapter 1, Section B