Attention: This bulletin has been superseded and is inactive.

EEOICPA BULLETIN NO.04-03

Issue Date: October 17, 2003

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Effective Date: October 17, 2003

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Expiration Date: October 17,2004

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Subject: Reopening Claims.

Background: At any time after the Final Adjudication Branch (FAB) has issued a decision, the Director of the Division of Energy Employees Occupational Illness Compensation (DEEOIC) is given sole discretion to reopen a claim and/or vacate the FAB’s decision. This rule applies to all decisions issued by the FAB.

The Director may exercise this discretion at any time after the FAB issues a final decision (FD), or any other type of decision. When a claim is reopened and/or a FAB decision vacated, the Director will issue a Director’s Order that sets the FAB decision aside and outlines the course of action required to resolve the issue(s) identified in the Director’s Order. The Director may reopen a claim and return it to the district office (DO) for further development and issuance of a new recommended decision (RD). The Director may also reopen a claim and vacate a final decision or vacate a remand order of the FAB and return the claim file to the FAB for the issuance of a final decision. 20 CFR § 30.320 gives the Director the unique power to conduct these actions, and the regulations make it clear that all matters pertaining to granting a reopening and/or vacating a FAB decision remain within the realm of the Director’s authority. Unless otherwise authorized in this Bulletin, the DO and the FAB must comply precisely with any and all instructions provided by the Director in the Director’s Order.

Additionally, at any time after the FAB issues a FD a claimant may submit in writing to the Director a specific request to reopen his or her claim. While every specific written request for a reopening submitted by a claimant after the issuance of the FAB’s FD will be reviewed by the Director, in most circumstances new and compelling evidence must accompany the request in order for the Director to grant the reopening. The submission of new evidence regarding covered employment; exposure to radiation, beryllium or silica; a change in the probability of causation guidelines or dose reconstruction methods; or the addition of a class of employees to the Special Exposure Cohort (SEC) may prompt a reopening by the Director. If the Director deems the new evidence material to the claim, the Director may grant the request for a reopening and either return the claim to the DO for further development and the issuance of a new RD, or return the claim to the FAB for the issuance of a new FD.

A new RD or FD promulgated as a result of a reopening by the Director is subject to the adjudicatory process as outlined in Subpart D of the governing regulations.

Reference: 20 CFR § 30.319 and 20 CFR § 30.320.

Purpose: To provide guidance on reopening claims and/or vacating a FAB decision after the FAB has issued a decision.

Applicability: All staff.

Actions:

1. Pursuant to 20 CFR § 30.319 a claimant has 30 days from the date on which the FAB issues its final decision to request a reconsideration of that final decision. 20 CFR § 30.319(b) allows the FAB to use the postmark date, if available, as the filing date. Where the postmark date is not available, the FAB is to use the earliest date of receipt in any DO or FAB. Once a request for reconsideration is received in a DO or a district FAB, it must be forwarded to the National Office (NO) FAB for review. There is no requirement that evidence accompany the claimant’s reconsideration request, and the FAB will consider each request on its own merits, provided that the request is submitted within the timeframe allowed under the governing regulations. If the FAB denies the request for reconsideration no new final decision will be issued.

2. Any specific request for reconsideration or other unspecific correspondence or evidence not specifically requesting a reopening that is filed within 30 days from the date on which the FAB issued its FD will be treated as a potential request for reconsideration. All such correspondence and/or evidence must be immediately forwarded to NO FAB for review. This will be program policy until further notice (3-6 months), at which time additional guidance will be provided. Once received in NO FAB, the specific request for reconsideration or unspecific correspondence or evidence will be assigned to a NO FAB representative other than the FAB FD’s author. During this time period any specific request for reopening bypasses NO FAB review and is sent immediately to the Director.

3. Once the specific request for reconsideration or unspecific correspondence or evidence is received in NO FAB, the NO FAB representative will weigh any new evidence and determine whether or not a reconsideration of the final decision is warranted. Only specific requests for reconsideration will automatically be treated as a request for reconsideration. All objections will nonetheless undergo review for the requisite evidence required for possible reconsideration. Evidence supporting the diagnosis of a covered condition, establishing covered employment, in support of survivorship, or other evidence showing the potential for coverage under the Act could warrant the granting of a request for reconsideration. This evidence review and evaluation remains at the NO FAB representative’s discretion. With regard to all specific requests for reconsideration and all unspecific objections submitted directly by a claimant or a claimant’s authorized representative, the claimant will be notified whether or not his or her request will be granted or denied. Should the NO FAB representative identify a piece of evidence material to the claim’s outcome that warrants granting the reconsideration, the reconsideration will be granted and the claimant notified even if such evidence is not submitted directly by the claimant or the claimant’s authorized representative. Should the NO FAB representative identify a piece of evidence not specifically requesting a reconsideration that is not submitted directly by the claimant or the claimant’s authorized representative that fails to materially impact the outcome of the claim in question, the NO FAB will not treat this as a request for a reconsideration. Rather, the NO FAB representative will return such evidence to the DO with a memo explaining that the evidence is not material and does not warrant a reconsideration of the FAB’s final decision. In order to avoid confusing the claimant, no notice will be sent to the claimant in such instances.

4. In some instances a specific request for reconsideration of a FAB final decision will be filed after 30 days from the date on which the final decision was issued. If such a request is received in the DO or district FAB it will be forwarded to the NO FAB immediately for review by a FAB representative other than the FD’s author. If an objection is filed in excess of 30 days from the date on which the final decision was issued and specifically requests a reconsideration of that final decision, the FAB representative will review the request and any attached evidence. The FAB representative will evaluate any evidence submitted with the untimely request for reconsideration and determine whether or not that evidence warrants review by the Director for possible reopening. When conducting such a review, the FAB representative will look for evidence of covered employment; exposure to radiation, beryllium or silica; a change in the probability of causation guidelines or dose reconstruction methods; the possible addition of a class of employees to the SEC; or any other evidence material to the outcome of the claim. If the FAB representative determines that the evidence is new and relevant to the claim and warrants review by the Director, the FAB will issue a denial of request for reconsideration to the claimant and inform the claimant that his or her file is being forwarded to the Director for review as a possible reopening. The case file and all documents will be forwarded to the Director for review, and the untimely request for reconsideration will be treated as a request for a reopening. The NO FAB Branch Chief will prepare a memorandum to the Director outlining the issues identified for possible reopening. If the untimely request for reconsideration is not accompanied by any new and relevant evidence that might affect the outcome of the claim, the FAB representative will treat the request as a late request for reconsideration and deny it outright for failing to comply with the objection timeframe established in 20 CFR § 30.319.

5. Every timely or untimely specific request for reconsideration of a FAB final decision, whether received in the DO or the FAB, must be forwarded to the NO FAB for proper review and adjudication. As noted above, a NO FAB representative other than the FD’s author will review all late requests for reconsideration as potential requests for a reopening and review the request for the requisite evidence required to warrant the Director’s review.

6. In some instances 30 days or more after the date on which the FAB issued its final decision denying a claim, the DO or FAB will receive correspondence regarding that decision, or evidence related to that claim, that does not contain any specific language requesting a reconsideration or a reopening. Without exception, any correspondence or piece of new evidence that does not specifically request a reconsideration or reopening and is received after 30 days from the date on which the FAB issued its final decision denying compensation will be reviewed by a NO FAB representative other than the FD’s author. Should such unspecified correspondence or evidence be received in the DO or the district FAB, the office in receipt will immediately forward the case file and all documentation to the NO FAB for review. This will not be warranted in accepted cases. The NO FAB representative will carefully examine all correspondence and/or evidence received to determine whether or not such correspondence and/or evidence is material to the claim and warrants review by the Director. When reviewing such evidence, the FAB representative will look for evidence of covered employment; exposure to radiation, beryllium or silica; a change in the probability of causation guidelines or dose reconstruction methods; the possible addition of a class of employees to the SEC; or any other evidence material to the outcome of the claim. If the FAB representative determines that the unspecified correspondence or evidence requires the Director’s review, the FAB will send the case file and all documentation to the NO for the Director’s review as a request for a reopening. In those instances where the unspecified evidence is not submitted by the claimant or fails to request any specific action and is not material to the outcome of the claim, the FAB representative will return such evidence to the DO with a memo explaining that the evidence does not warrant a reconsideration of the final decision and no further action will be taken. In order to avoid confusion, no letter will be sent to the claimant at that time, as the FAB has determined that the clamant did not request any specific action on his or her claim.

7. Any claimant correspondence that specifically requests a reopening in writing at any time after the issuance of a FAB final decision, whether received in the DO or the FAB, must be forwarded to the NO for review by the Director, whether or not this request is accompanied by evidence new and relevant to the case file. If the DO receives such a specific request for reopening, the DO will forward all documents and the claim file directly to the NO for the Director’s review. There is no need for the DO to submit such requests to the FAB for evaluation, as only the Director is authorized to review a request to reopen a claim and make a determination as to whether or not such a request should be granted or denied. If a request for a reopening is received in the FAB, the FAB will forward all documentation and the claim file to NO for review by the Director. Under no circumstances is the FAB to make any determination regarding the viability of a specific request for reopening, as only the Director is granted the authority to evaluate a request for reopening filed after the FD is issued.

8. In certain instances the DO director may request that the Director of DEEOIC review any kind of FAB decision. Such a request may be made at any time after a FAB decision has been rendered, regardless of whether the decision is a FD, a remand order, or a reversal of the district office’s recommended decision. Should the DO district director disagree with a FAB decision, that particular case file will be forwarded to the Director of DEEOIC for review. The district director will prepare a memorandum to the Director of DEEOIC outlining his or her concerns and requesting that the Director review the claim file. Pursuant to 20 CFR § 30.320, the Director will determine whether or not to reopen a case file by vacating a FAB final decision. In the case of remand orders, the Director will determine whether or not the order should be vacated as outlined in 20 CFR § 30.320(a), as a remand order is not a final decision and does not close a claim and require reopening.

9. In other instances it may be necessary for the Director to initiate review of a claim for possible reopening, even in the absence of an overt request from any other concerned party. In some cases, whether for administrative reasons, a change in the law, or for any other reason at the sole discretion of the Director, it may be necessary to reopen a claim and vacate a decision of the FAB. If the Director initiates such a review, the NO will request the case file from the DO.

10. Once the Director has reviewed a claim file for reopening and rendered a decision as to whether or not a reopening is in order, the claim file in question will be forwarded to the proper office for further handling and file maintenance. In instances where a claim is in posture for reopening and the FAB FD must be vacated and a new FD issued, a Director’s Order will be issued reopening the file, vacating the FD, and returning the claim file to the FAB for the issuance of a new FD. In instances where a reopening is not required but a FAB remand order must be vacated, a Director’s Order will be issued vacating the FAB remand order and the claim file will be returned to the FAB with instructions for further handling and the issuance of a new final decision. In instances where the claim is in posture for reopening and further development is required by the DO, a Director’s Order will be issued vacating the FAB final decision and the claim file will be forwarded to the DO to perform the required further development and issue a new recommended decision. In cases where a claim is not in posture for reopening, a denial letter will be sent from the Director to the party requesting the reopening, and the claim file will be returned to the proper DO for file maintenance and storage. An unfavorable decision by the Director does not prevent a claimant or other interested party from filing subsequent requests for reopening. In each and every instance outlined above, the proper ECMS coding will be entered by all staff.

11. Once the Director has decided to reopen a claim or vacate a FAB remand order, the Director will draft a Director’s Order vacating the final decision or remand order of the FAB and the file, depending upon the circumstances, will be returned to either the DO or the FAB pursuant to the process outlined above. Once the Director’s Order is received in the DO or the FAB, it is imperative that the DO or the FAB adhere to strict compliance with the instructions outlined by the Director. In the case of a Director’s Order vacating a FAB remand order, under no circumstances will the FAB deviate from the instructions in the Director’s Order. In most cases, the DO must also strictly comply with the Director’s instructions outlined in the Director’s Order. However, district-specific knowledge of unique development procedures that might broaden the scope of the Director’s Order may be utilized provided the DO’s actions are in keeping with the spirit of the Director’s Order. Should the DO or the FAB disagree with the Director’s Order or any of the Director’s findings, such disagreement must be channeled to the NO through the DO director or the FAB branch chief. Nonetheless, the Director will only entertain disagreements deemed material to the potential outcome of a claim. The procedural aspect of the reopening process remains solely in the realm of the Director’s authority as granted by the governing regulations.

12. The reopening process, whether it originates with the claimant, the district office, the FAB, or under the auspices of the Director’s own discretionary authority, requires certain ECMS codes for identification and tracking. The codes authorized under this bulletin are as follows:

MC - The claimant requests a reopening. The DO or FAB received a request for reopening directly from the claimant, or an untimely request for reconsideration containing the requisite evidence warranting further review by the Director. In this case, either the DO or the FAB enters the MC code into ECMS. The status effective date is the date the request was received in the DO or FAB. In keeping with the spirit of the governing regulations, the postmark date, if available, will be used as the date of receipt. The DO or FAB then prepares a cover memo to the Director outlining the facts of the case and the issue(s) at hand and forwards the case file to NO.

MQ - Reopening request received in NO. Only NO staff will enter this code into ECMS. When a reopening request is received in NO from either the claimant, the DO, or the FAB, this code is required to denote receipt of the request and to indicate that the case file is physically present at the NO. The status effective date will be the date of receipt of the request for a reopening in the NO.

MI - DO director requests a reopening. Except in the case of a FAB remand order sent to NO for a possible Director’s Order, when the DO district director requests the Director of DEEOIC to review a claim for possible reopening, the DO will enter the MI code into ECMS prior to forwarding the file to the NO with a cover memo outlining the DO director’s concerns. The WS code should never be used under these circumstances. The status effective date will be the date of the DO director’s memo to the Director of DEEOIC.

M7 – DO director submits a FAB remand order to NO for possible Director’s Order vacating the remand. When the DO director disagrees with a FAB remand order, the DO director will prepare a memo outlining his or her concerns and forward the memo and case file to the NO for review by the Director of DEEOIC. Under no circumstances should a WS code be utilized in this instance. The status effective date will be the date of the DO director’s memo to the Director of DEEOIC.

MN – NO initiates review for reopening. Only NO staff will enter this code into ECMS. When the Director reviews a claim under the Director’s own initiative for either administrative purposes, a change in the law, or for reasons within the sole discretion of the Director, the MN code must be entered into ECMS to denote that the claim file is in NO and on review for possible reopening and/or vacating of a FAB decision. The status effective date will be the date the claim file is received in NO.

MX – Claim not in posture for reopening. Only NO staff will enter this code in ECMS. After the Director has reviewed the request for reopening and has determined that the claim is not currently in posture for reopening, the NO will enter MX into ECMS to denote the status of the review. The status effective date will be the date of the Director’s decision to deny the request for reopening.

MF – Claim is in posture for reopening and must be returned to FAB for the issuance of a new final decision. Only NO staff will enter this code into ECMS. After the Director has determined that a claim must be reopened and a new FAB final decision must be promulgated, the MF code will be entered to denote that a reopening has been granted and the file returned to the FAB for the issuance of a new final decision. The status effective date will be the date of the order granting the reopening.

MD - Claim is in posture for reopening and must be returned to the DO for further development and the issuance of a new recommended decision. Only NO staff will enter this code into ECMS. After the Director has reviewed the request for a reopening and has deemed a file in posture for reopening and further development at the district level, the MD code will be entered to denote that a reopening has been granted and the file returned to the DO for further development and the issuance of a new recommended decision. The status effective date will be the date of the order granting the reopening.

MV – A FAB remand order must be vacated and a new final decision must be issued. After review of the case file and the FAB remand to the DO, the Director has determined that the remand order was improper and must be set aside and a new final decision issued. Only NO staff will enter this code into ECMS. The status effective date will be the date of the order vacating the FAB remand order.

MZ – Receipt of Director’s Order in DO/FAB. Once the Director’s Order and accompanying case file is received from NO in the DO/FAB, the DO/FAB will enter the MZ code into ECMS to denote date of receipt. The status effective date will be the date the Director’s Order is received in the DO/FAB.

Deleting obsolete ECMS codes. With the addition of the foregoing new ECMS codes, the following ECMS codes are now obsolete and will be removed from ECMS effective immediately: MO; MU; and ML.

Disposition: Retain until incorporated in the Federal (EEOICPA) Procedure Manual.

PETER M. TURCIC

Director, Division of Energy Employees

Occupational Illness Compensation

Distribution List No. 1: Claims Examiners, Supervisory Claims Examiners, Technical Assistants, Customer Service Representatives, Fiscal Officers, FAB District Managers, Operation Chiefs, Representatives, District Office Mail & File Sections