Prec 10- 2004     Effect of Return to Active Duty upon Claims for VA Benefits

Citation: Vet. Aff. Op. Gen. Couns. Prec. 10-2004, VAOPGCPREC 10-2004, 2004

QUESTIONS PRESENTED:

A.  In general, what impact does a veteran’s return to active duty have on a pending claim for benefits?  What is the status of the veteran’s claim?  What actions should or may the Department of Veterans Affairs (VA) take?

B.  When a veteran’s claim has been remanded to a regional office for an examination and the veteran is not available for the examination because of the veteran’s return to active duty, what is the status of the veteran’s claim?  What actions should or may VA take?

C.  When a veteran with a pending claim returns to active duty and is able to attend a scheduled examination while on active duty, what is the status of the veteran’s claim?  What actions should or may VA take?

D.  If a veteran with a pending claim returns to active duty and dies while on active duty, what is the effect of the pending claim on a subsequent claim for accrued benefits?

HELD:

A.  A veteran’s return to active duty while his or her claim for benefits from the Department of Veterans Affairs (VA) is pending does not alter the rights and duties of the claimant and VA under any statute or regulation with respect to the development and adjudication of the claim or the status of the claim within the meaning of any statute or regulation.  VA should process the claims of such veterans in the same fashion as it would had the veterans not returned to active duty.  If a veteran’s return to active duty temporarily prevents VA from providing a necessary medical examination or taking other action necessary to a proper decision on the claim, VA may suspend or defer action on the claim until the necessary actions can be accomplished.  VA may not deny a claim solely because the veteran has returned to active duty or solely because the veteran is temporarily unavailable for a necessary examination due to his or her return to active duty.

B.  When a veteran’s claim has been remanded to a regional office for an examination and the veteran is not available for the examination because of the veteran’s return to active duty, VA may defer action on the claim until the required examination can be conducted.  VA may not deny the claim solely because the veteran is temporarily unavailable for examination due to his or her return to active duty.  The veteran’s return to active duty does not alter the status of the veteran’s claim within the meaning of any statute or regulation.

C.  When a veteran has a pending claim and returns to active duty, but is able to attend a VA examination while on active duty, VA should process the claim in the same manner as it would if the veteran had not returned to active duty.  The veteran’s return to active duty does not alter the status of the veteran’s claim within the meaning of any statute or regulation.

D.  If a veteran with a pending claim returns to active duty and dies on active duty before the claim is decided, the pending claim may provide the basis for an award of accrued benefits to a survivor under 38 U.S.C. § 5121(a).  Accrued benefits consist only of amounts “due and unpaid” to the deceased beneficiary.  Because 38 U.S.C. § 5304(c) prohibits VA from paying compensation or pension to a veteran for any period in which the veteran received active service pay, accrued benefits under 38 U.S.C. § 5121(a) may not include compensation and pension amounts for any period for which the veteran received active service pay.