§3.103. Procedural due process and other rights.

An adverse action based solely on factual and unambiguous information or statements as to income, net worth, or dependency or marital status that the beneficiary or his or her fiduciary provided to VA in writing or orally (under the procedures set forth in § 3.217(b)), with knowledge or notice that such information would be used to calculate benefit amounts.

An adverse action based upon the beneficiary's or fiduciary's failure to return a required eligibility verification report.

Evidence reasonably indicates that a beneficiary is deceased. However, in the event that VA has received a death certificate, a terminal hospital report verifying the death of a beneficiary or a claim for VA burial benefits, no notice of termination (contemporaneous or otherwise) will be required.

An adverse action based upon a written and signed statement provided by the beneficiary to VA renouncing VA benefits (see § 3.106 on renouncement).

An adverse action based upon a written or electronic statement provided to VA by a veteran that indicates that the veteran has received, is in receipt of, or will receive active service pay as defined by § 3.654(a), or, in the case of compensation, written or electronic notice from the Department of Defense that indicates that the veteran has received or is in receipt of active service pay as defined by § 3.654(a), provided that, in cases involving notice from the Department of Defense, the veteran has on a previous occasion of concurrent receipt of compensation and payment for the type of service at issue received the notice described in paragraph (b)(2), but with a period of 30 rather than 60 days to respond, as well as notice that suspension of compensation payments based on subsequent payments for the same type of service will be made without additional advance notice. The statement from the veteran or notice from the Department of Defense must include the date on which the service resulting in receipt of active service pay began or, in the case of a statement from the veteran, the date on which the service resulting in receipt of active service pay is expected to begin, or, in the case of training duty, the number of training days performed, or, in the case of a statement from the veteran, the number of training days expected to be performed, during a specified period of time (e.g., last month, last quarter, last year, next month, etc.). In order for this paragraph to apply, the veteran must have received prior notice that receipt of active service pay precludes concurrent receipt of VA benefits, or VA must have received a statement from the veteran that indicates knowledge of such preclusion. In cases to which § 3.700(a)(1)(iii) of this part applies, the Veteran must also have waived VA benefits. When notice provided by the Department of Defense contains information indicating that the monthly level of disability compensation for a veteran exceeds the veteran's monthly active service pay rate, the exception contained in this paragraph will only apply to a written or electronic statement provided to VA by the veteran.

An adverse action based upon a garnishment order issued under 42 U.S.C. 659(a).

Receipt of a complete claim. The agency of original jurisdiction subsequently receives a complete application for a supplemental claim or initial claim; or

Board and higher-level review returns. A claim is pending readjudication after identification of a duty to assist error (which includes an error resulting from constructive receipt of evidence prior to the notice of decision), during a higher-level review or appeal to the Board of Veterans' Appeals. Those events reopen the record and any evidence previously submitted to the agency of original jurisdiction or associated with the claims file while the record was closed will become part of the evidentiary record to be considered upon readjudication.

Constructive receipt of VA treatment records. Records within the actual custody of the Veterans Health Administration are deemed constructively received by the Veterans Benefits Administration at the time when the Veterans Benefits Administration had knowledge of the existence of said records through information furnished by the claimant sufficient to locate those records (see 38 U.S.C. 5103A(c)).