Part X, Subpart ii, Chapter 3, Section CContemporaneous Notice

Revised December 30, 2020

X.ii.3.C.1.a#Definition: Contempor-aneous Notice

A contemporaneous notice is a letter sent to a beneficiary at the same time his or her Department of Veterans Affairs (VA) benefits are reduced, suspended, or discontinued. This notice is used in lieu of a notice of proposed adverse action and describes a completed award action, rather than a proposed one. Example: The beneficiary provides written information adequate to form the basis of the adverse action. The regional office reduces benefit payments and sends a contemporaneous notice informing the beneficiary of the reduction. Reference: For a list of situations warranting contemporaneous notice, see 38 CFR 3.103(b)(3).

X.ii.3.C.1.b#Information a Beneficiary Must Provide to Justify Sending a Contempor-aneous Notice

A contemporaneous notice is given when the beneficiary or his/her fiduciary provides factual, unambiguous information or statements regarding

• income
• net worth
• marital status, or
• dependency

and that information is used by VA to reduce, suspend, or discontinue the beneficiary’s award. The person furnishing the information or statement must know, or be on notice, that such information will be used to calculate benefits. The information can be oral or written, and may be provided by signed statement, phone, e-mail, or through a VA claims submission service website. References: For more information on

• contemporaneous notice, see 38 CFR 3.103(b)(3), and
• means for submitting or receiving evidence, see
  • 38 CFR 3.217(b), and
  • M21-1, Part III, Subpart i, 2.D.1.d.

X.ii.3.C.1.c#Contempor-aneous Notice While the Corporate Record Is in Suspense

Contemporaneous notice is appropriate when the corporate record is in suspense and information is received resulting in a reduction of the rate when the award is resumed. Example: Contemporaneous notice is appropriate if the corporate record of a Veteran is in suspense because he or she failed to report for a scheduled review examination. The Veteran then reports for the rescheduled examination, and the resulting rating decision reduces the combined evaluation. Reference: For more information on the actions taken when a Veteran fails to report for a scheduled review examination, see M21-1, Part IV, Subpart ii, 2.B.

X.ii.3.C.1.d#Contempor-aneous Notice and Active Service Pay

Contemporaneous notice is appropriate when

• the Veteran submits a written statement that he or she has returned to active duty, or
• in some situations when the Veteran submits information about the receipt of active service pay.

The table below describes the type of notice required when the Veteran returns a completed VA Form 21-8951 or 21-8951-2, Notice of Waiver of VA Compensation or Pension to Receive Military Pay and Allowances, and a retroactive adjustment will result in an overpayment.

Reference: For more information on adjusting VA benefits based on a Veteran’s receipt of active service pay, see M21-1, Part VI, Subpart ii, 3.A.

X.ii.3.C.1.e#Contempor-aneous Notice and Undeliverable Checks

A contemporaneous notice is appropriate if one or more benefit checks are returned as undeliverable and benefits are subsequently stopped. References: For more information on

• handling undeliverable, essential mail when current address is unobtainable, see M21-1, Part II, Subpart i, 2.C.6, and
• receiving a returned check as a notice of death, see M21-1, Part XI, Subpart i, 1.A.2.a.

X.ii.3.C.1.f#Contempor-aneous Notice and Garnishment Orders

Contemporaneous notice is appropriate when an adverse action is based upon a garnishment order for child support or alimony, where disability compensation is paid instead of military retired pay. References: For more information on

• income withholding, garnishment, and similar proceedings for enforcement of child support and alimony obligations, see 42 U.S.C. 659(a), and
• procedures for handling a garnishment when compensation is paid in lieu of military retired pay, see M21-1, Part VII, Subpart iii, 1.C.2.

X.ii.3.C.1.g#Contempor-aneous Notice and Report of Death

A contemporaneous notice is generally required when evidence is received that reasonably indicates that the beneficiary is deceased. Notices and reports from third party sources (Veterans Service Representatives, field examiners, estate analysts, or other sources such as the Social Security Death Match) that reasonably demonstrate that a beneficiary is deceased may be used to discontinue benefits. Important: Do not enclose VA Form 20-0998, Your Right to Seek Review of Our Decision, when sending a contemporaneous notice that benefits have been discontinued based on the reported death of the beneficiary. References: For more information on

• third-party reports of death, see 38 CFR 3.103(b)(3)(iii)
• sending a contemporaneous notice of notice of death processing, see M21-1, Part XI, Subpart i, 1.A.1.d, and
• handling severance proposals upon the Veteran’s death, see M21-1, Part X, Subpart ii, 5.B.2.h.

X.ii.3.C.1.h#Contempor-aneous Notice and EVRs

Contemporaneous notice is appropriate when an adverse action is based upon the beneficiary’s failure to return a required eligibility verification report (EVR). Note: Beginning in 2013, VA eliminated the requirement for pension beneficiaries to complete an annual EVR. Therefore, 2012 was the last calendar year EVRs were required.

2Contemporaneous Notice Related to Information Received by Telephone

Revised May 15, 2015

X.ii.3.C.2.a#When a Contemporaneous Notice is Appropriate Based on Information Received by Telephone

When information that would reduce or discontinue benefits is received from the beneficiary or his/her fiduciary by telephone, a contemporaneous notice is appropriate only if the verification and documentation procedures shown in M21-1, Part III, Subpart i, 2.D.1.f, have been followed. References: For more information on

• documenting information received by telephone, see 38 CFR 3.217(b), and
• handling information received by telephone that might affect benefits, see M21-1, Part III, Subpart i, 2.D.1.f.

3Requirements for Contemporaneous Notice

This topic contains information on the contemporaneous notification, including

• requirement for sending the contemporaneous notice, and
• required elements of the contemporaneous notice.

Revised February 19, 2019

X.ii.3.C.3.a#Requirement for Sending Contempor-aneous Notices

Any notice of change or proposed change in benefits, including the contemporaneous notice, must be sent to the current address of record, or the most recent address, such as the most recent address in the corporate record, of the

• beneficiary
• beneficiary’s fiduciary (if applicable), and
• beneficiary’s designated representative (if any).

X.ii.3.C.3.b#Required Elements for Contemporaneous Notice

Every contemporaneous notice, like the notice of proposed adverse action, must include the following elements:

• identification of the issues decided (including new rates)
• summary of the
  • evidence considered, and
  • laws and regulations applicable to the claim
• statement of effective date(s)
• detailed reasons for decision
• overpayment information
• explanation of how to obtain or access evidence used to make the decision, and
• summary of the applicable review options provided under 38 CFR 3.2500, that allow the claimant to seek further review of the decision.

Exception: Do not enclose VA Form 20-0998 when sending a contemporaneous notice that benefits have been discontinued based on the reported death of the beneficiary. Reference: For more information on the elements of a notice of proposed adverse action, see M21-1, Part X, Subpart ii, 3.A.2.