VR&E Regulations: Title-38/Section-21.422

(AND) Notice of Abatement Required When a Veteran Loses a Dependent.

(1) Except as provided in paragraph (a)(2) of this section, VA will not reduce a per diem allowance award due to the loss of a veteran’s dependent unless:

(i) VA notified the veteran of the adverse action, and

(ii) VA provided the veteran with a 60-day period to provide evidence that the per diem allowance should not be reduced.

(2) Where the reduction is based solely on written, factual and unambiguous information as to dependency provided by the veteran or his or her fiduciary with knowledge or notice that the information will be used to determine the monthly per diem rate;

(i) VA is not required to provide notice of the initial reduction as set forth in paragraph (a)(1) of this section, but;

(ii) VA will send notice at the same time as the reduction in per diem allowance.

(Authority: 38 USC 5112, 5113)

(B) Notice of reduction. If a reduction in the daily allowance is proposed due to dependency information received from a source other than the veteran, VA:

(1) Prepared a proposal to reduce allowances, stating the relevant facts and reasons;

(2) Notify the veteran at his or her last residential address of the proposed action;

(3) Provide detailed reasons for the proposed reduction;

(4) Inform the veteran that he or she has the opportunity to have a pre-scheduling hearing, provided that VA receives the request for such a hearing within 30 days of the date of notification; AND

(5) Give the veteran 60 days to provide additional evidence that the diet should continue at the current level.

(Authority: 38 USC 5112, 5113)

(1) If VA receives a timely request for a preliminary determination hearing as indicated in paragraph (b)(4) of this section:

(i) VA will notify the veteran in writing of the date, time and place of the hearing; AND

(ii) Payment of daily allowances will continue at the previously agreed level until a final determination is made regarding the proposed reduction.

(2) The hearing will be conducted by a VA employee who:

(i) did not participate in the preparation of the proposal to reduce the veteran’s allowance, and

(ii) Will be responsible for decision making.

(Authority: 38 USC 5112, 5113)

(D) Final action. VA will take final action in accordance with the preliminary determination procedures set forth in paragraph (c) of this section.

(1) If no request for a pre-determination hearing is made or if the veteran fails to appear for a scheduled pre-determination hearing, final action will be taken solely on the basis of evidence collected after the 60-day period.

(2) If a preliminary determination hearing was held, VA will base its final action on:

(i) Evidence presented at the hearing;

(ii) Evidence contained in the claim files at the time of hearing; AND

(iii) Any additional evidence obtained after the interview as necessary.

(3) Whether or not a pre-determination hearing was held, the veteran will be issued written notice of the final action setting forth the reasons for the decision and the evidence on which it is based. The veteran will be informed about his or her appeal rights and right to representation. (Information regarding the conduct of the hearing can be found in § 3.103(c) and (d) of this chapter.)

(4) If, after considering the additional evidence submitted, a reduction in the daily allowance is determined to be justified, the effective date of the reduction or discontinuation of the daily allowance shall be the date specified in the provisions of § 21.324 of this part.

(Authority: 38 USC 5112, 5113)

(54 FR 40872, October 4, 1989)