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M21-1, Part III, Subpart ii, Chapter 3, Section E – Establishing an Appellate Record

Overview


In This Section

This section contains the following topics:

1.  Reviewing Potential NODs


Introduction


Change Date

September 28, 2017

III.ii.3.E.1.a.  IPC’s Role in Reviewing and Establishing NODs

The Intake Processing Center (IPC) is responsible for reviewing all potential notices of disagreement (NODs) and controlling all valid and timely NODs by

  • establishing an end product (EP) 170 with a Pending Initial Development-Std  Notice Not Required claim-level suspense, and
  • initiating a Veterans Appeals Control and Locator System (VACOLS) record containing
    • date of receipt of the NOD
    • notification letter date, and
    • NOD Received diary.
Important:  IPC is not required to complete the ISSUES tab in the VACOLS record.  Appeals team personnel are required to review newly established NODs, complete the VACOLS record, and develop the NOD based upon established workload management procedures and NOD timeliness goals.
Exception:  Regional offices (ROs) may choose to utilize other adequately trained personnel to review and establish NODs based on station needs.
The following table provides a description of the minimum actions in the NOD establishment process for which IPC is responsible.
Stage
Description
Reference
1
IPC determines if the NOD is valid.
2
IPC determines if the NOD is complete.
3
IPC determines if the NOD is timely.
4
IPC determines if the NOD is duplicative.
5
IPC
6
IPC sends the appropriate appellate review process letter.
 
Reference:  For more information on appeals team responsibilities for NOD processing, see M21-1, Part I, 5.B.

III.ii.3.E.1.b.  Determining if an NOD Is Valid

Before establishing a VACOLS record, review all potential NODs to determine if they are valid.
A valid NOD must be filed
  • by
    • a claimant personally
    • his or her authorized representative, or
    • a fiduciary of an incompetent claimant or other individual as authorized in 38 CFR 20.301(b)
  • timely
  • in response to notification of an appealable claim decision by the RO, and
  • in the proper format as described in M21-1, Part III, Subpart ii, 3.E.1.c.
References:  For more information on

III.ii.3.E.1.c.  Acceptable Format for an NOD

Use the following table to determine if an NOD for a decision is filed in the proper format.
If the decision notice was sent …
Then the NOD …
prior to March 24, 2015
  • on or after March 24, 2015, and
  • the decision notice on a claim for compensation included VA Form 21-0958
must be timely submitted on a completedVA Form 21-0958.
Note:  An NOD must be submitted on the current version of VA Form 21-0958.
Reference:  For more information on handling NODs submitted on an outdated version of VA Form 21-0958, see M21-1, Part III, Subpart ii, 1.C.8.c.
  • on or after March 24, 2015, and
  • the decision notice on a claim for compensation did not include VA Form 21-0958
  • does not need to be submitted onVA Form 21-0958, but
  • must be a written communication from a claimant or his/her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the decision.
  • on or after March 24, 2015, and
  • the decision notice was in regards to a
    • claim for pension or death benefits, or
    • simultaneously contested claim.
  • does not need to be submitted onVA Form 21-0958, but
  • must be a written communication from a claimant or his/her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the decision.
 
Important:  There is no standard form requirement for an NOD which contests a decision regarding a claimant’s entitlement to pension, Dependency and Indemnity Compensation, or accrued benefits.
References:  For more information on

III.ii.3.E.1.d.  Handling a Disagreement With a Decision Not Submitted on VA Form 21-0958, When Required

If a claimant or his/her representative submits a written statement expressing dissatisfaction or disagreement with a compensation decision and a desire to contest the decision on anything other than VA Form 21-0958 send the Request for Application for NOD Letter from Letter Creator.
Important:  If correspondence expressing dissatisfaction or disagreement with a decision is reviewed and processed outside the one-year appellate period, do not send the Request for Application for NOD Letter.  Instead, follow the instructions inM21-1, Part III, Subpart ii, 3.E.1.j.
Follow the steps below to process a Request for Application for NOD Letter.
 
Step
Action
1
Establish EP 400 Request for Notice of Disagreement.
2
Open the Letter Creator available on the Rating Job Aids intranet site.
3
Select the IPC tab in the Letter Creator.
4
Select the Request for Application for NOD letter from the drop down menu.
5
Complete the fields for the contact information and the date of notification letter before clicking on the CREATE LETTER button.
6
Print and mail the letter to the claimant and, if necessary, the authorized representative.
Reference:  For more information on providing notices to an authorized representative, see M21-1, Part I, 3.B.1.
7
  • Associate the document with the claims folder.
  • For electronic documents, proceed to Step 8.
8
  • Open the ACTIONS drop down menu in the Veterans Benefits Management System (VBMS) electronic claims folder (eFolder).
  • Select Upload Document.
Example:
Image of the upload document drop down menu option.
  • Complete the fields as follows:
    • SUBJECT:  leave blank
    • CATEGORY-TYPE:  Correspondence – Miscellaneous: Report of Contact
    • SOURCE:  VBMS
    • ASSOCIATE TO:  EP 400 Request for Notice of Disagreement
    • DATE OF RECEIPT:  date of receipt of the non-standard NOD.

III.ii.3.E.1.e.  Response to Invalid Premature NODs

Do not accept an NOD as valid if it is filed prior to notice of a final claim decision.
Use the table below to respond to an invalid, premature NOD.
If the NOD is filed in response to …
Then do not establish a VACOLS record, and …
a notice of proposed adverse action
send the NOD Against a Proposal letter from theLetter Creator, or Personal Computer Generated Letters (PCGL) equivalent, to advise the claimant that a proposed adverse action is merely a preliminary action that is not appealable and that a notice of appellate rights will be furnished when a final decision is made.
provisional rating
send a notice with the following language:
We have received your notice of disagreement based on the provisional rating decision of which we sent notification on [date of notification letter].  This was not a final decision and did not include appeal rights.
If you have additional relevant evidence pertaining to the issues decided in that decision that you would like us to consider, please submit it to our office within one year of the date that we notified you of the decision, and we may reconsider the decision.
If you want to receive a final decision with appeal rights before the one year provisional period ends, send VA a signed statement as follows:
“All necessary evidence was considered by VA.  I request that this provisional decision be made final.”
  • exclusion from the Fully Developed Claim (FDC) Program, and
  • prior to a final decision on the claim
Exception:  A timely NOD filed after a final decision on the excluded claim must be accepted as valid.
advise the claimant that the NOD is not valid as no final decision had been made at the time he/she filed the disagreement.
Reference:  For more information on appealing an exclusion from the FDC Program, see M21-1, Part III, Subpart i, 3.B.5.a.
a currently pending claim for which no decision has been issued
send the NOD Against Pending Claim letter from theLetter Creator, or PCGL equivalent, to advise the claimant that the NOD is premature as we have not yet made a decision on the claim.

III.ii.3.E.1.f.  Identifying an Incomplete NOD

An NOD is incomplete if it lacks any of the following information:

  • information necessary to identify the claimant
  • the decision to which the NOD pertains
  • information necessary to identify the category of disagreement, or
  • the signature of the claimant or his/her accredited representative.
Exception:  Do not consider an NOD incomplete if it fails to identify the category of disagreement or the date to which the decision pertains, but this information can be reasonably ascertained.
Example 1:  Appellant submits a VA Form 21-0958 identifying a rating decision that denied service connection (SC) for a back condition but does not identify the category of disagreement.  In this scenario, the category of disagreement can be reasonably ascertained as a disagreement with VA’s decision to deny SC.
Example 2:  Appellant submits VA Form 21-0958, states he disagrees with the denial of his back claim, but does not input the date of the decision in Item 10.  A review of the eFolder reveals only one decision on the back has been made in the last year.  In this scenario, the decision to which the NOD pertains can be reasonably ascertained.
 
Notes:
  • The current version (September 2015) of VA Form 21-0958 contains Part III – Appeal Process Election.  Failure to complete this section of the form does not render the NOD incomplete.
  • If VA requests missing information from the claimant on an incomplete NOD and there are fewer than 60 days remaining in the appeal period, provide the claimant 60 days from the date of the request for information to respond.
  • If an NOD requires clarification, refer the NOD to the appeals team or other designated personnel.
References:  For more information on

III.ii.3.E.1.g.  Processing an Incomplete NOD

Follow the steps in the table below to process an incomplete NOD.
Step
Action
1
Can the claimant be identified?
2
Is the form signed by the claimant and/or authorized representative?
3
Did the claimant identify the decision to which the NOD pertains and the category of disagreement?
Reference:  For more information on the specificity required on VA Form 21-0958, see 38 CFR 20.201.
 
References:  For more information on

III.ii.3.E.1.h.  Instructions for Processing the Incomplete NOD Letter

Follow the steps in the table below to process an Incomplete NOD letter.
Step
Action
1
Establish an EP 400 with the CORRESPONDENCE claim label.
Note:  Use the date of the incomplete NOD as the date of claim.
2
Generate the Incomplete NOD letter in the Letter Creator, or equivalent letter from PCGL.
Important:  Make sure to select the relevant option(s) for the specific information needed to submit a complete NOD.
3
Send the Incomplete NOD letter, or PCGL equivalent, to the claimant and his/her accredited representative, if applicable.
4
Clear the EP 400
 
References:  For more information on

III.ii.3.E.1.i.  Computing the NOD Time Limit

The NOD time limit is calculated based on the date VA mails notice of a decision to the claimant and the date the claimant files an NOD.  Generally, the date an NOD is filed is determined by the date VA receives the document (date stamp), but consideration must also be given to the post mark date, if available, as noted in the table below.
Note:  A postmark refers to the date marked on an envelope by the mail carrier service, while date stamp refers to the date of receipt marked on the mail when it is received by VA.
When computing the NOD time limit
  • exclude the first day of the specified period
  • include the last day of the specified period, and
  • if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.
Follow the steps in the table below to calculate the NOD time limit.
Step
Action
1
Determine the date VA mailed the decision notice to the appellant by accessing the claimant’s eFolder in VBMS, and in the DOCUMENTS tab, locate the decision notice and the rating decision associated with the issues on the claimant’s NOD.
Note:  If the decision notice is undated, presume the notice was mailed on the date the award was authorized.
Example:  In SHARE,
  • enter the claim number
  • select CORPORATE INQUIRIES
  • select the CLAIMS/DENIALS button
  • on the BENEFIT CLAIM INFORMATION tab, select the relevant EP, and
  • identify the date of authorization as shown below.
 Image of SHARE Benefit Claim Information tab screen.
2
Determine the date the appellant filed the NOD by reviewing the relevant date stamp on the document and post mark, if available.
Consider the postmark date as instructed in the table below.
If the NOD was filed by mail, and the postmark date is …
Then …
prior to the expiration of the substantive appeal period
  • consider the NOD timely, and
  • retain the postmarked envelope.
not of record
presume the postmark date to be five days prior to the date VA received the NOD, excluding Saturday, Sundays, and legal holidays.
3
Follow the guidance in M21-1, Part III, Subpart ii, 3.E.1.j to determine if the NOD is timely.
 
References:  For more information on

III.ii.3.E.1.j.  Determining if an NOD Is Timely

An NOD must be filed within the time periods specified in 38 CFR 20.302(a).
Important:  When a VA Form 21-0958 is required to initiate an appeal, submitting the incorrect form does not extend, toll, or otherwise delay the time limit for filing the correct form.
Follow the steps in the table below to determine if an NOD is timely.
Step
Action
1
Use the table below for guidance on NOD timeliness.
An NOD for …
Must be filed …
a simultaneously contested claim, including an apportionment claim
60 days from the date the VA mailed the decision notice to the unsuccessful claimant.
References:  For more information on
all other claims
one year from the date VA mailed the decision notice to the claimant.
Reference:  For more information on requiring VA Form 21-0958, see 38 CFR 20.201.
 
Reference:  For more information on computing the one-year NOD time limit, see M21-1, Part III, Subpart ii, 3.E.1.i.
2 Is the NOD timely?

  • If yes, continue NOD establishment procedures.
  • If no, proceed to the next step.
3
Did VA grant the appellant an extension to file the NOD as described in M21-1, Part I, 5.B.1.d?
  • If yes, proceed to the next step.
  • If no, proceed to Step 5.
4
Did the claimant submit the NOD within the extension period?
  • If yes, continue with NOD establishment procedures.
  • If no, proceed to Step 7.
5
Did VA request the claimant to clarify or provide missing information on the NOD?
  • If yes, proceed to the next step.
  • If no, proceed to Step 7.
6
Did the claimant provide the clarification or missing information within 60 days of the letter requesting it?
  • If yes, consider the NOD timely and continue NOD establishment procedures.
  • If no, proceed to the next step.
7
For all appeals found not timely
Note:  The decision that an NOD was not timely filed is appealable to the Board of Veterans’ Appeals (BVA).
 
References:  For more information on

III.ii.3.E.1.k.  Determining if an NOD Is Duplicative

Before taking action to establish an NOD, verify it is not a duplication of a pending appeal or claim.
Use the table below to determine if an otherwise valid NOD is duplicative of a pending appeal or claim.
Important:  If the currently pending VACOLS record is in any status other than NOD status, the RO should not follow the table below.  Instead, ROs must establish a new separate appeal record for any new, valid NOD.
If the potential NOD …
And …
Then …
does not contain any of the same issue(s) as the pending appeal
is part of the same decision notice as an already pending NOD
  • do not establish a separate VACOLS NOD record
  • add the new appellate issue(s) as a contention to the pending appeals EP in VBMS
  • follow the procedures inM21-1, Part III, Subpart ii, 3.E.2.e to determine which appellate review process letter to send, and
  • refer the appeal to the appeals team based on established workload management procedures.
is part of a different decision notice as an already pending NOD
follow the guidance in
contains only the same issue(s) as the pending appeal
  • print a copy of the VA Form 21-0958
  • send the claimant theDuplicate Documents letter available under the APPEALS tab in the Letter Creator, and
  • no further action is necessary.
contains both new appellate issues and issues already pending appeal
the same decision notice as an already pending NOD
  • do not establish a separate VACOLS NOD record
  • add the new appellate issue(s) as a contention to the pending appeals EP in VBMS
  • follow the procedures inM21-1, Part III, Subpart ii, 3.E.2.e to determine which appellate review process letter to send, and
  • refer the appeal to the appeals team based on established workload management procedures.
a different decision notice as an already pending NOD
follow the guidance in
contains the same issue(s) which are currently pending under a claim EP
the NOD issues are valid and timely
Important:  If there are no issues remaining under the pending claim EP, cancel the EP.
the NOD issues are not valid or not timely
follow the guidance relevant to the reason the NOD is not valid in M21-1, Part III, Subpart ii, 3.E.1.bj.
 
Exception:  Pension management centers (PMCs) send locally generated letters for appeals.
References:  For more information on

 2.  Establishing and Tracking an NOD


Introduction


Change Date

 June 23, 2017

III.ii.3.E.2.a.  Jurisdiction for Control of an Appellate Record

The following divisions will establish the appeal record for their respective NODs:

  • Veterans Service Center (VSC)
  • PMC
  • Fiduciary Hub
  • Education Division
  • Philadelphia Insurance Center
  • Vocational Rehabilitation and Employment (VR&E) Division, and
  • Veterans Health Administration (VHA).
Program offices other than those listed above will refer an NOD to the VSC to establish and maintain the appeal record in VACOLS.  The VSC is entitled to EP credit for those appeals tracked for other program offices.
Note:  Effective April 1, 2002, VHA’s Administration Service assumed responsibility for establishing appeal records in VACOLS and managing the VHA appellate workload.

III.ii.3.E.2.b.  Accepting an NOD

Follow the steps in the table below once an NOD is determined to be valid as described in M21-1, Part III, Subpart ii, 3.E.1.
Step
Action
1
Annotate the NOD based on the table below.
If processing …
Then IPCs must …
paper correspondence accepted as a valid NOD in lieu of VA Form 21-0958
annotate NOD in the upper right hand corner of the document.
Important:  For paper submissions that are going to be scanned into an electronic format, this annotation should be placed on the NOD prior to scanning into a Veteran’s eFolder.
a paperless NOD
Examples:  VA Form 21-0958 or other correspondence accepted as a valid NOD.
ensure the document properties in VBMS show NOD as the document type under the APPEALS dropdown menu in the CATEGORY-TYPE:  ALTERNATE field.
Reference:  For more information on editing document properties in VBMS, see the VBMS User Guide.
2
Establish a VACOLS and VBMS appeal record as described in M21-1, Part III, Subpart ii, 3.E.2.c and d.
Exception:  Establish non-Veteran appeals and PMC-related appeals in VACOLS and Share.
Reference:  For more information on establishing claims in Share, seeM21-1, Part III, Subpart ii, 3.D.2.e.
3
Address the election of an appellate review process as described inM21-1, Part III, Subpart ii, 3.E.2.e.

III.ii.3.E.2.c.Initiating an NOD in VACOLS

Follow the steps in the table below to initiate a claimant’s NOD in VACOLS.
Step
Action
1
  • From the VACOLS main screen, select ADD NEW APPEAL.
  • Enter the claims folder number or Social Security number (SSN).
  • Reenter the claimant’s information to confirm.
2
On the ADD APPEAL screen, input the following information in the designated fields, including:
  • NAME OF VETERAN
  • ADDRESS
  • PHONE NUMBER
  • NAME OF APPELLANT (when applicable),
  • VETERANS SERVICE ORGANIZATION (VSO),
  • SSN (if not previously indicated as the claims folder number), and
  • DATES fields, including
    • NOTIFICATION (enter the date from the decision notice shown in VBMS)
    • NOD (enter the date the NOD was received by VA), and
    • DRO Elect (when applicable).
Example:
screen shot that shows the fields that must be completed to add an appeal
 
Note:  For electronic submissions, the earliest date stamp on VA Form 21-0958, or the correspondence accepted as the NOD, must be used as the date the NOD is recorded.
3
Initiate completion of the ISSUES tab.
On the ADD ISSUE screen enter the first issue listed on the NOD.
Example:
Image of the add issue screen in VACOLS.
4
Create a VACOLS diary.
On the VACOLS main screen, enter the claimant’s identification (ID) number, select the newly created NOD record, and then select the DIARY tab to ADD the information listed below on the DIARY DETAIL screen.
  • ASSIGNED TO (VSR)
  • DIARY CODE (NOD received)
  • DAYS (in compliance with local guidance).
Example:
Imgae of the VACOLS Diary Detail screen.
5
Select UPDATE to save the information.
 
Notes:
  • VACOLS allows the tracking of fiduciary appeals. The following are the user names for the Fiduciary Hubs:
    • Columbia Fiduciary Hub RO64
    • Indianapolis Fiduciary Hub RO65
    • Lincoln Fiduciary Hub RO66
    • Louisville Fiduciary Hub RO67
    • Milwaukee Fiduciary Hub RO68
    • Salt Lake City Fiduciary Hub RO69, and
    • the Manila RO fiduciary activity will continue to use the RO’s user name.
  • VACOLS allows the tracking of pension related appeals. The following are the user names for the PMCs:
    • Philadelphia PMC RO81
    • Milwaukee PMC RO82, and
    • St. Paul PMC RO83.
References:  For more information on

III.ii.3.E.2.d.Establishing an NOD in VBMS

Follow the steps in the table below to establish a claimant’s NOD in VBMS.
Important:  Establish non-Veteran appeals and PMC-related appeals in Share.
Step
Action
1
Open the claimant’s profile and select NEW CLAIM from the ACTIONS drop down menu.
2
Review and update the following fields:
  • ADDRESS
  • TELEPHONE NUMBER, and
  • POWER OF ATTORNEY (POA).
3

Select the appropriate

  • 170 series EP, and
  • claim label based on the following table.
If the appellant …
Then in the EP & CLAIM LABEL field select …
failed to elect either the traditional review process or the de novoreview
170NOD – NOTICE OF DISAGREEMENT.
elected traditional review process
170TRADNOD – TRAD Notice of Disagreement.
elected de novo review
170DRONOD – DRO Notice of Disagreement.
 
Notes:
  • The EP 170 will be shown as the default EP in the MODIFIER field.
  • When establishing the subsequent EP 170 based on guidance in M21-1, Part III, Subpart ii, 3.E.1.b, select the next available, appropriate 170 series EP in the MODIFIER field.
References:  For more information on
4
Enter the date of receipt of the NOD in the DATE OF CLAIM field.
5
Assign the EP 170 to Appeals (National) in the SEGMENTED LANE field.
Example:
screen shot showing selection of Appeals (National) in segmented lane field
6
Select SUBMIT to save the information.
7
From the CONTENTIONS tab, add each contention specified by the claimant.
Note:  If the VA Form 21-0958 is received after March 24, 2015, treat any contentions without a previous decision as a request for application in accordance with M21-1, Part III, Subpart ii, 2.C.3.
8
From the PROFILE screen, select MANAGE EVIDENCE from the ACTIONS drop down menu.
  • Select ADD UNSOLICITED and populate the following fields:
    • RECEIPT DATE
    • DOCUMENT TYPE, and
    • EVIDENCE NAME.
Example:
screen shot of fields that must be completed to identify and manage evidence
  • Select COMPLETE on the right panel of the screen to update and save the information.
9
If the appellant or authorized representative requests a formal hearing or informal conference, establish control of the request as detailed inM21-1, Part III, Subpart ii, 3.D.4.a.
References:  For more information on
 
Reference:  For more information on establishing claims in

III.ii.3.E.2.e.  Handling an Election of an Appellate Review Process

Use the table below to handle an election of an appellate review process.
Notes:
  • Only one of the following appellate review process letters is required.
  • The September 2015 version of VA Form 21-0958 includes an option for the appellant to choose either the Decision Review Officer (DRO) review process or the traditional appellate review process.
If the appellant …
Then …
requests the DRO review process
send the appellant the DRO Process Explanation Letter from Letter Creator, or equivalent letter from PCGL.
requests the traditional appellate review process
send the appellant the Traditional Process Explanation Letter from Letter Creator, or equivalent letter from PCGL.
selects both option checkboxes on the September 2015 version of VA Form 21-0958
  • accept it as an election of the DRO process, and
  • send the appellant the DRO Process Explanation Letter fromLetter Creator, or equivalent letter from PCGL.
  • left both checkboxes in Block 9 blank on VA Form 21-0958, or
  • files an NOD in another valid format, but does not specify which appellate review process he/she prefers
  • send the appellant the Appeals Process Explanation Letter fromLetter Creator, or equivalent letter from PCGL, and
  • give the appellant 60 days from the date the letter is sent to elect an appellate review process.  This time limit cannot be extended.
Notes:
  • Failure to reply to the letter is considered an election of the traditional appellate processing method and an indication that a DRO review process is not desired.
  • An appellant does not have to submit an election of an appellate review process in writing.  Such election may be received verbally.
 
References:  For more information on

III.ii.3.E.2.f. Appeal EP Claim Labels 

Whether established in Share or VBMS, all NODs require a 170 series EP and appropriate claim label.
When establishing a 170 series EP for an NOD, select the appropriate claim label from the table below.
Claim Label
Code
D2D Notice-Of-Disagreement
170NODD2D
Notice of Disagreement
170NOD
TRAD Notice of Disagreement
170TRADNOD
DRO Notice of Disagreement
170DRONOD
PMC – Notice of Disagreement
170NODPMC
PMC-TRAD Notice of Disagreement
170TRADNODPMC
PMC-DRO Notice of Disagreement
170DRONODPMC
 
Reference:  For more information on establishing claims in

III.ii.3.E.2.g. Establishing VACOLS Control for an NOD Regarding an Untimely Appeal

The following example represents the standard way to control an NOD in VACOLS when an appellant files an NOD disagreeing with VA’s determination that an appeal was not filed timely.
Example:  The RO completed a rating decision denying SC for arthritis of a joint.  The Veteran filed an NOD disagreeing with the denial of SC.  The RO notified the Veteran that his NOD was not timely filed.  He then filed an NOD disagreeing with VA’s determination that his NOD was untimely.  The IPC established a VACOLS record as follows:

Image of an example of a completed VACOLS record


 3.  Reviewing Substantive Appeals


Introduction


Change Date

 January 6, 2017

III.ii.3.E.3.a. Identifying a Substantive Appeal

A substantive appeal is one of the following documents containing the necessary information as provided in 38 CFR 20.202:
Note:  The submission of a substantive appeal is also known as perfecting the appeal.

III.ii.3.E.3.b.  Substantive Appeal Requirements

In order to be valid, a substantive appeal must be filed timely.  An appellant is not required to complete a specific form in order to file a substantive appeal.
Notes:
  • A signature is not required for proper completion of a substantive appeal.
  • If a substantive appeal requires clarification, refer it to the appeals team or other designated personnel.
References:  For more information on

III.ii.3.E.3.c. Computing the Substantive Appeal Time Limit

The substantive appeal time limit is calculated by determining the time period between the
  • filing of a substantive appeal, and
  • later of the
    • response period from the date a decision on the appeal was mailed to the appellant (statement of the case (SOC) or supplemental statement of the case (SSOC)), or
    • remaining appeal period, if any, from the date the decision notice being appealed was mailed to the appellant.

Notes:

  • Generally, the date a substantive appeal is filed is determined by the date VA receives the document (date stamp), but consideration must also be given to the post mark date, if available, as noted in the table below.
  • postmark refers to the date marked on an envelope by the mail carrier service, while date stamp refers to the date of receipt marked on the mail when it is received by VA.
When computing the substantive appeal time limit
  • exclude the first day of the specified period
  • include the last day of the specified period, and
  • if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.
Follow the steps in the table below to calculate the substantive appeal time limit.
Step
Action
1
Determine the date VA mailed the decision notice to the appellant.
Reference:  For more information on determining the date the decision note was mailed, see M21-1, Part III, Subpart ii, 3.E.1.i.
2
Determine the date VA mailed an appeal decision (SOC or SSOC) to the appellant by reviewing
  • SOC or SSOC in the claims folder, and
  • VACOLS to locate the date in the SOC field, and if applicable, the date in the SSOCS field.
The table below provides additional considerations when determining the date VA mailed the SOC or SSOC to the appellant.
If an SOC or SSOC …
Then …
had to be mailed again because it was not mailed to the latest address of record at the time it was prepared
compute the substantive appeal time limit from the date that it was remailed.
is undated
presume the date entered in the applicable field in VACOLS is the date the appeal decision was mailed to the appellant.
3
Determine the date the appellant filed the substantive appeal by reviewing the relevant date stamp on the document.
Consider the postmark date as instructed in the table below.
If the substantive appeal was filed by mail, and the postmark date is …
Then …
prior to the expiration of the substantive appeal period
  • consider the substantive appeal timely, and
  • retain the postmarked envelope.
not of record
presume the postmark date to be five days prior to the date VA received the substantive appeal, excluding Saturday, Sundays, and legal holidays.
4
Follow the guidance in M21-1, Part III, Subpart ii, 3.E.3.d to determine if the substantive appeal is timely.
 
References:  For more information on

III.ii.3.E.3.d.  Determining if a Substantive Appeal Is Timely

A substantive appeal must be filed within the time periods specified in 38 CFR 20.302(b) or 38 CFR 20.501(b).
Follow the steps in the table below to determine if a substantive appeal is timely.
Step
Action
1
Use the table below for guidance on substantive appeal timeliness.
A substantive appeal for …
Must be filed …
a simultaneously contested claim, including an apportionment claim
30 days from the date the VA mailed the SOC.
References:  For more information on
all other claims
before the later of the following dates:
  • the last day of the one-year period from the date VA mailed the decision notice of the issue being appealed, or
  • 60 days from the date VA mailed the SOC or SSOC.
Important:  After issuing an SOC or SSOC, VA must provide a claimant with a 60-day period in which to file a substantive appeal.  This applies even when the one-year appeal period will expire before the 60-day period ends.
Example:  A claimant submits additional evidence without a substantive appeal on the last day of the one-year appeal period.  This evidence requires VA to prepare an SSOC.  The time limit for the claimant to file a substantive appeal shall end no sooner than 60 days after the SSOC is mailed to the claimant.
 
Reference:  For more information on computing substantive appeal time limit, see M21-1, Part III, Subpart ii, 3.E.3.c.
2
Is the substantive appeal timely?
3
Did VA grant the appellant an extension to file the substantive appeal?
  • If yes, proceed to the next step.
  • If no, proceed to Step 5.
4
Did the claimant submit the substantive appeal within the extension period?
5
Did VA request the claimant to clarify issues on the substantive appeal?
  • If yes, proceed to the next step.
  • If no, proceed to Step 7.
6
Did the claimant provide the clarification within 60 days of the letter requesting it?
7
For all appeals found not timely
Note:  The decision that an appeal was not timely filed is appealable to BVA.
References:  For more information on

III.ii.3.E.3.e.  Determining if a Substantive Appeal Is Duplicative

Before taking action to update VACOLS upon receipt of a substantive appeal, review the issues listed on the ISSUES tab of any pending VACOLS records to verify it is not a duplication of a pending appeal.
Use the table below to determine if an otherwise timely substantive appeal is duplicative of a pending appeal.
If the substantive appeal contains …
Then …
only issues listed in a VACOLS record in ADV (SOC) status
follow the substantive appeal processing steps inM21-1, Part III, Subpart ii, 3.E.4.a.
only the same issue(s) as a VACOLS record in ADV (Form 9) or ADV (SSOC) status
refer the appeal to the appeals team based on established workload management procedures.
  • both
    • new appellate issues, and
    • issues already pending in a VACOLS record in ADV (Form 9) orADV (SSOC)status, and
  • the new issues are part of the same VACOLS record
  • establish an EP 170, and
  • send an e-mail to the coach of the appeals team, or other designated personnel, to review the correspondence and determine the next appropriate action.
  • both
    • new appellate issues, and
    • issues already pending in a VACOLS record in ADV (Form 9) orADV (SSOC)status, and
  • the new issues are part of a different VACOLS record in ADV (SOC)status
follow the substantive appeal processing steps for the new issues in M21-1, Part III, Subpart ii, 3.E.4.a.
issues not covered in one of the above scenarios
  • establish an EP 170, and
  • send an e-mail to the coach of the appeals team, or other designated personnel, to review the correspondence and determine the next appropriate action.

4.  Controlling Substantive Appeals 


Introduction

This topic contains information pertaining to controlling an appellate claim perfected by the submission of a substantive appeal, including

Change Date

June 23, 2017

III.ii.3.E.4.a.  Accepting Substantive Appeals

Follow the steps in the table below once a substantive appeal is determined to be timely and non-duplicative as described in M21-1, Part III, Subpart ii, 3.E.3.d ande.
Step
Action
1
Annotate the substantive appeal based on the table below.
If processing …
Then IPCs must …
paper correspondence accepted in lieu of VA Form 9
annotate Form 9 in the upper right hand corner of the document.
Important:  For paper submissions that are going to be scanned into an electronic format, this annotation should be placed on the substantive appeal prior to scanning into a Veteran’s eFolder.
a substantive appeal in VBMS
Examples:  VA Form 9 or correspondence accepted in lieu of a VA Form 9.
ensure the document properties in VBMS show Substantive Appeal to Board of Veterans’ Appeals as the document type under the APPEALS dropdown menu in the CATEGORY-TYPE:  ALTERNATE field.
Reference:  For more information on editing document properties in VBMS, see the VBMS User Guide.
2
Establish a VBMS appeal record as described in M21-1, Part III, Subpart ii, 3.E.4.c.
3
Update VACOLS as described in M21-1, Part III, Subpart ii, 3.E.4.d.

III.ii.3.E.4.b. Reactivating a VACOLS Record

If a substantive appeal is not timely input, the VACOLS record will automatically close and show a status of history (HIS).  To input a timely filed substantive appeal after the appeal record has closed, reactivate the VACOLS record.
Note:  RO users can only reactivate a VACOLS record that was closed out in the pre-Form 9 stage.
Follow the steps in the table below to reactivate an appeal record in HIS status in VACOLS.
Step
Action
1
In VACOLS, enter the relevant APPELLANT ID to display the appellant’s VACOLS record(s).
2
  • Highlight the relevant appeal record, and
  • click on the VIEW APPEAL button to access the record.
3
From the UTILITIES menu, select Reactivate Appeal.
4
Click YES to reactivate the appeal.
Note:  When the appeal is reactivated, a VACOLS diary titledReactivated Appeal is automatically generated.
 
References:  For more information on

III.ii.3.E.4.c.Controlling a Substantive Appeal in VBMS

After receiving a decision on an NOD, the claimant may choose to submit a VA Form 9, or other acceptable form or a substantive appeal, to show his/her continued disagreement with the NOD decision.
Follow the steps in the table below to establish control of a substantive appeal.
Step
Action
1
Open the appellant’s VBMS profile and select NEW CLAIM.
2
Review the following information and update fields as necessary:
  • ADDRESS
  • TELEPHONE NUMBER, and
  • POWER OF ATTORNEY (POA).
3
Enter 170FRM9 – FORM 9 in the EP & CLAIM LEVEL field.
4
Enter the date the VA received the VA Form 9 in the DATE OF CLAIM field.
5
Assign the 170FRM9 to Appeals (National) as the SEGMENTED LANE.
Example:
screen shot of the field where you select which EP and claim label the appeal will be controlled under
6
Select SUBMIT to save the information.
7
Use the table below to complete the contentions screen in VBMS.
If on the VA Form 9 the claimant checks …
Then …
box 8A
enter the issues indicated by the claimant as contentions.
box 8b
enter the issues listed under the ISSUES tab in VACOLS.
 
Important:  If there is any ambiguity as to what the claimant is appealing or if the claimant adds a new contention, the IPC
  • enters “miscellaneous” as the contention
  • forwards the EP to an appeals Veterans Service Representative (VSR) VBMS work queue, and
  • leaves a system note regarding the ambiguity.
Notes:
  • The issue(s) indicated on the VA Form 9 must be listed on the ISSUES tab in VACOLS.
  • Ensure issues reviewed in VACOLS are from the correct appeals record, as there may be multiple appeals records.
  • If the VA Form 9 is received after March 24, 2015, treat any new contentions received on the form as a request for application, in accordance with M21-1, Part III, Subpart ii, 2.C.3.
8
Return to the claimant’s PROFILE screen and select MANAGE EVIDENCE from the ACTIONS drop down menu.
  • Select ADD UNSOLICITED and populate the following fields.
    • RECEIPT DATE
    • DOCUMENT TYPE, and
    • EVIDENCE NAME.
Example:
screen shot of the fields that must be completed to track any unsolicited evidence received
  • Select COMPLETE on the right panel of the screen to update and save the information.
9
If the appellant or authorized representative requests a formal hearing or informal conference, establish control of the request as detailed inM21-1, Part III, Subpart ii, 3.D.4.a.
References:  For more information on
 
Exception:  Establish non-Veteran appeals in Share.
References:  For more information on

III.ii.3.E.4.d.  Updating VACOLS for Tracking of a Substantive Appeal

In addition to establishing an EP 170 in VBMS for a substantive appeal, VACOLS must also be updated for tracking purposes.
Follow the steps in the table below to update VACOLS for substantive appeals.
Step
Action
1
  • On the VACOLS main screen, enter the APPELLANT ID.
  • Locate the relevant VACOLS record by reviewing the issues listed in the substantive appeal with the issues listed in VACOLS on the ISSUES tab.
Note:  If more than one appeal record exists, review the issues on the substantive appeal and the issues in the VACOLS records per the instructions in M21-1, Part III, Subpart ii, 3.E.3.e.
2
Use the table below to determine the next step.
If VACOLS shows a status of …
Then …
ADV (SOC)
proceed to the next step.
  • HIS, and
  • the substantive appeal was received within the applicable time limit
  • HIS, and
  • the substantive appeal was notreceived within the applicable time limit
follow the procedures in M21-1, Part III, Subpart ii, 3.E.3.d.
any other status
  • establish an EP 170, and
  • send an e-mail to the coach of the appeals team, or other designated personnel, to review the correspondence and determine the next appropriate action.
 
Note:  If there is no VACOLS record for the claimant listed on the substantive appeal, send the appropriate Request for Application letter from Letter Creator, or PCGL equivalent.
3
  • Highlight the relevant appeal record, and
  • click on the UPDATE APPEAL button.
4
  • Enter the date the substantive appeal was received in the FORM 9 field, and
  • select UPDATE to save the information.
5
  • Navigate to the DIARY tab
  • click ADD
  • enter the following information on the DIARY DETAIL screen:
    • ASSIGNED TO (in compliance with local guidance)
    • DIARY CODE (VA Form 9 RECEIVED)
    • DAYS (in compliance with local guidance), and
  • select UPDATE to save the information.
Note:  Refer to local RO guidance regarding assignment of a substantive appeal.  In many cases, a DRO, the appeals rating activity, or other designee will be assigned the perfected appeal in order to expeditiously certify it to BVA.

5.  Lost NODs


Introduction

This topic contains information pertaining to lost NODs, including


Change Date

August 19, 2016

III.ii.3.E.5.a.  Identifying Lost NODs

Identify lost NODs through review of diaries in

  • VACOLS
  • Share
  • Modern Award Processing – Development (MAP-D), and
  • VBMS notes.

Consider an NOD lost if there is an electronic record of a pending NOD but the claims folder contains no documents related to the NOD.


III.ii.3.E.5.b.  Handling a Lost NOD

Follow the steps in the table below upon identification of a lost NOD.
Step
Action
1
Establish EP 400.
2
Review all available systems (such as VACOLS, MAP-D, Share, and VBMS) and records for the following information regarding the NOD:
  • date received, and
  • issue(s) identified.
3
Prepare a Lost NOD Memorandum, including the following information, as applicable:
  • which electronic system(s) were checked for lost NOD information, including, but not limited to
    • MAP-D
    • VBMS
    • VACOLS
    • Share
    • Legacy Content Manager (LCM)
  • if the claims file was reviewed for the NOD
  • if the duly appointed representative, including a VSO, was contacted regarding information on the lost NOD, and
  • if the lost NOD can be re-established from the record
    • the date the NOD was re-established
    • which system(s) were used to re-establish the NOD, and
    • the specific issue(s) identified for the NOD.
Note:  The employee’s supervisor must sign the memorandum.
References:  For a sample of
4
Does the review of records
  • establish the date the NOD was received, and
  • identify at least one issue on the NOD?
  • If yes, go to Step 5.
  • If no, go to Step 6.
5
  • Select the Lost Notice of Disagreement Letter from the Letter Creator
  • select Yes in the LOST NOTICE OF DISAGREEMENT field, and
  • proceed to Step 7.
Note:  A letter may also be generated in PCGL.  The letter should include the following information:
  • the date the lost NOD was received by VA
  • the issue(s) identified on the NOD
  • a request that the appellant inform VA of any additional issues or corrections by submitting
    • a copy of the previously submitted NOD, if available, or
    • a new VA Form 21-0958, and
  • notification that VA will continue to process the appeal for the issue(s) listed in the letter if no corrections or additional issues are received within
    • 60 days of the date of the Lost NOD – Some Issues Identified letter, or
    • one year after the date of the decision notice for the decision(s) being appealed, whichever is later.
References:  For more information on
6
  • Select the Lost Notice of Disagreement Letter from the Letter Creator
  • select No in the LOST NOTICE OF DISAGREEMENT field, and
  • proceed to the next step.
Note:  A letter may also be generated in PCGL.  The letter should include the following information:
  • the date the lost NOD was received by VA
  • a request that the appellant inform VA of the issue(s) he/she wishes to appeal by submitting
    • a copy of the previously submitted NOD, if available, or
    • a new VA Form 21-0958, and
  • notification that VA will consider the attempt to appeal abandoned if the appellant does not re-submit the NOD within
    • 60 days of the date of the Lost NOD – No Issues Identified letter, or
    • one year after the date of the decision notice for the decision(s) being appealed, whichever is later.
Reference:  For more information on the time to respond to a request for clarification of an NOD, see 38 CFR 19.26(c).
7
Clear the EP 400 after sending the letter.
 
Note:  If the appellant resubmits an NOD within the specified time limits, use the date of receipt of the initial (lost) NOD as the date of claim when reestablishing EP control.  Otherwise, use the date of receipt of the resubmitted NOD.

6.  Exhibits: Lost NODs


Introduction

This topic contains exhibits, including


Change Date

August 19, 2016

III.ii.3.E.6.a.  Exhibit: Completed Lost NOD Memorandum

A sample of a completed Lost NOD Memorandum is shown below.
Reference:  For more information on the Lost NOD Memorandum, see M21-1, Part III, Subpart ii, 3.E.6.b.
Department of                                 Memorandum

Veterans Affairs

 

Date:   11/23/2015

Subj:   Lost Notice of Disagreement

File Number: 999999999

Name of Veteran/claimant:  G. I. Joe

The following steps were taken when trying to locate evidence associated with:

EP:  170                    Date of NOD:  10/27/2015

For Completion by VSR

√ Checked VACOLS

√ Checked Map-D/VBMS notes

√ Checked eFolder/LCM/paper claims file (if applicable)

¤ Checked Share to see if claim established at HRO

¤ Checked VBMS to see if there are any documents pending with the scanning vendors

√ Checked with VSO (if applicable)

VSR signature:  V. S. Representative     Date:  11/21/2015

For Completion by Supervisor

Have you cancelled above EP due to lost NOD?      √ YES          ¤  NO

If so, please note date of PCAN:  11/25/2015

Was lost NOD letter released?                         ¤  YES          √ NO

If so, on what date:  ______________

¤  Update Lost NOD Log (upload copy of memo to eFolder/LCM/c-file)

 

      Ima D. Coach

Coach Signature


III.ii.3.E.6.b.  Exhibit: Lost NOD Memorandum

A sample of the Lost NOD Memorandum  is shown below.
Department of                                 Memorandum

Veterans Affairs

Date:   [MM/DD/YYYY]

Subj:   Lost Notice of Disagreement

File Number: [Claim Number]

Name of Veteran/claimant: [Veteran/claimant’s name] 

The following steps were taken when trying to locate evidence associated with:

EP:  [EP number]                    Date of NOD:  [MM/DD/YYYY]

For Completion by VSR

¤ Checked VACOLS

¤ Checked Map-D/VBMS notes

¤ Checked eFolder/LCM/paper claims file (if applicable)

¤ Checked Share to see if claim established at HRO

¤ Checked VBMS to see if there are any documents pending with the scanning vendors

¤ Checked with VSO (if applicable)

VSR signature: ___________________      Date:  [MM/DD/YYYY]

For Completion by Supervisor

Have you cancelled above EP due to lost NOD?      ¤  YES          ¤  NO

            If so, please note date of PCAN:  [MM/DD/YYYY]

Was lost NOD letter released?                         ¤   YES          ¤  NO

            If so, on what date:  [MM/DD/YYYY]

¤  Update Lost NOD Log (upload copy of memo to eFolder/LCM/c-file)

 

____________________

      Coach Signature

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