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M21-1, Part III, Subpart ii, Chapter 4, Section I – Folders Meeting the Criteria for Review by the United States Court of Appeals for Veterans Claims (CAVC)

Overview

In This Section
This section contains the following topics:

 

1.  Special Handling of Claims Folders After a BVA Decision

 

Introduction
This topic contains information on the special handling of claims folders after a BVA decision, including

Change Date
August 17, 2018

III.ii.4.I.1.a.  General Policy on the Handling of Claims Folders After a BVA Decision
Special procedures exist for the handling of paper claims folders containing a decision by the Board of Veterans’ Appeals (BVA) that meets the criteria for review by the Court of Appeals for Veteran Claims (CAVC).
Note:  Whenever possible, send paper claims folders to the scanning vendor for conversion into an electronic claims folder (eFolder).
Reference:  For more information on

III.ii.4.I.1.b.  Effect of the Veterans Judicial Review Act
The Veterans Judicial Review Act, Public Law 100-687, enacted into law on November 18, 1988,
  • created CAVC (originally the Court of Veterans Appeals), and
  • granted CAVC exclusive jurisdiction to review BVA decisions.
BVA decisions resulting from a notice of disagreement filed on or after November 18, 1988, are subject to review by CAVC.

III.ii.4.I.1.c.  Special-Handling Period After a BVA Decision
In accordance with 38 U.S.C. 7266, appeals of BVA decisions must be filed directly with CAVC within 120 days of an adverse BVA decision.
Prior to the expiration of this appeal period, the Department of Veterans Affairs (VA) requires special handling of the paper claims folder in order to
  • preserve the record that served as the basis for the BVA decision, and
  • ensure the paper claims folder is available for transfer to the Office of General Counsel’s (OGC’s) CAVC Litigation Group if the claimant files an appeal.
Important:  Although the statute allows only 120 days for an appeal to be filed, VA policy is to maintain special handling of the paper claims folder for a period of 150 days to allow for mail processing.
References:  For more information on

III.ii.4.I.1.d.Converting a Paper Claims Folder Into an eFolder After a BVA Decision
When applicable, regional offices (ROs) and decision review operations centers (DROCs) should route paper claims folders they receive after a BVA decision to the scanning vendor for conversion into an eFolder.
Exception:  Do not ship a claims folder to the scanning vendor if a claim is pending that cannot be processed in the Veterans Benefits Management System (VBMS).
Once the scanning vendor converts a paper claims folder into an eFolder,
  • the claims folder requires no special handling if it contains a BVA decision that meets the criteria for review by CAVC
  • the scanning vendor will use BVA decision as the document type when scanning in the pink file insert BVA uses to identify claims folders that require special handling, and
  • the CAVC Litigation Group will have access to the eFolder if the appellant files an appeal with CAVC.
 Notes:
  • Claims folders sent for scanning with no end product pending will not be prioritized by the scanning vendor.
  • Do not send a paper claims folder to the scanning vendor once the CAVC Litigation Group has requested the folder, as this may prevent the CAVC Litigation Group from accessing the claims folder in a timely manner.
  • When a DROC is in possession of a paper claims folder, and an RO notifies the DROC it needs the folder to decide a claim that requires priority processing, the DROC is responsible for sending the claims folder to the scanning vendor.
References:  For more information on

III.ii.4.I.1.e.  BVA Responsibility to Identify Cases Requiring Special Handling
BVA determines which of its decisions meet the criteria for review by CAVC.
The table below describes the process of identifying claims folders that meet the criteria for review by CAVC.
Stage
Description
1
To preserve the integrity of records contained in the claims folder, BVA places pink file inserts over the top of them.
Note:  ROs do not stock the file inserts, because BVA maintains the inserts for their exclusive use.
Reference:  For more information about the pink file inserts, see M21-1, Part III, Subpart ii, 4.J.
2
BVA annotates the center file insert with the date on which the claims folder no longer requires special handling.
Note:  The date is 150 days from the date of the BVA decision.
Reference:  For more information on the special-handling period after a BVA decision, see M21-1, Part III, Subpart ii, 4.I.1.c.
3
BVA returns the paper claims folder to the regional office of jurisdiction (ROJ).

III.ii.4.I.1.f.  Removal of BVA Evidence Tabs
Do not remove any BVA evidence tabs before the end of the 150-day control period.
Note:  In the event of an appeal, the CAVC Litigation Group relies on the BVA evidence tabs to identify the records to copy for the Record on Appeal (ROA).

III.ii.4.I.1.g.  VSCM and PMCM Responsibilities
Veterans Service Center Managers (VSCMs) and Pension Management Center Managers (PMCMs) are responsible for designing and implementing local procedures to keep claims folders that are subject to CAVC review in a secure area that is separate from the main file bank.
During the special-handling period referenced in M21-1, Part III, Subpart ii, 4.I.1.c, VSCMs and PMCMs must
  • maintain control of the claims folder
  • protect the integrity of the records contained in the claims folder
  • ensure the claims folder is available for transfer to the CAVC Litigation Group upon request if an appeal is filed with CAVC
  • ensure that if the claims folder is removed from the secured area, it is returned by the end of the same business day
After the special-handling period ends, VSCMs and PMCMs are responsible for
  • certifying that, while controlling the claims folder, no material was added to or deleted from the record that was the basis for the BVA decision, and
  • returning the claims folder to the main file bank.
Reference:  For more information on transferring folders during the special-handling period, see M21-1, Part III, Subpart ii, 5.H.

III.ii.4.I.1.h.  Use of Charge Cards to Identify the Location of Claims Folders That Are Subject to CAVC Review
While a claims folder that is subject to CAVC review is secured in a location outside the main file bank, place a charge card in the location in the main file bank where the claims folder is normally stored.

2.  Using Temporary Files During the Special-Handling Period

Introduction
This topic contains information on the use of temporary files during the special-handling period, including

Change Date
August 17, 2018

III.ii.4.I.2.a.  General Policy for Maintaining a Temporary File
During the special-handling period referenced in M21-1, Part III, Subpart ii, 4.I.1.c,do not add or delete material contained in the permanent paper claims folder.
During the special-handling period, ROs must maintain the temporary file they created when they transferred a permanent paper claims folder to BVA for appellate review.
Reference:  For more information on using a temporary file, see M21-1, Part III, Subpart ii, 4.I.2.d.

III.ii.4.I.2.b.  Definition:  Temporary File
A temporary file
  • is a paper folder that contains
    • copies of documents from the permanent paper claims folder, and
    • original documents received
  • is not subject to the same stringent restrictions as the permanent claims folder, and
  • should have a charge card.
Reference:  For more information on material a temporary file should contain, seeM21-1, Part I, 5.F.4.c.

III.ii.4.I.2.c.  Disposition of the Temporary File if a Claimant Files an Appeal With CAVC
A claimant’s temporary file remains at the RO if the claimant files an appeal with CAVC.

III.ii.4.I.2.d.  Use of a Temporary File During the Special-Handling Period
Whenever possible, use the temporary file without the claims folder to process issues that arise during the special-handling period.
Reference:  For more information on limiting access to the paper claims folder during the special-handling period, see M21-1, Part III, Subpart ii, 4.I.3.b.

III.ii.4.I.2.e.  Annotating a Temporary File After a BVA Decision
After a paper claims folder is returned with a decision from BVA, ROs must annotate the cover of the temporary file with BVA Decision [date].

III.ii.4.I.2.f.  Storing a Temporary File During the Special-Handling Period
At the discretion of the VSCM or PMCM during the special-handling period, store the temporary file in
  • a secured area with the claims folder, or
  • the main file bank.

3.  Reviewing Paper Claims Folders During the Special-Handling Period

Introduction
This topic contains information about reviewing the paper claims folder during the special-handling period, including

Change Date
August 17, 2018

III.ii.4.I.3.a. Restrictions on Review of Paper Claims Folders During the Special-Handling Period
When reviewing a claims folder that is subject to CAVC review, do not change the order of the material that is filed in it.
All reviewers must document the
  • purpose of the review
  • date and time of the review
  • record reviewed
  • reviewer’s name, and
  • certification that nothing has been added to or deleted from the material BVA identified as subject to review by CAVC.
Note:  The required certification appears on the file insert that BVA places over the center flap of the paper claims folder.

III.ii.4.I.3.b.  Limited Employee Access to Paper Claims Folders During the Special-Handling Period
During the special-handling period, ROs must limit access to paper claims folders that are subject to CAVC review to the fewest number of VA employees.
After each review, the VSCM, PMCM, or his/her designee must certify that no material was added to or deleted from the record.

III.ii.4.I.3.c.  Non-VA Personnel Access to Paper Claims Folders During the Special-Handling Period
In order to protect the integrity of records contained in the paper claims folder, a VA employee must be present when non-VA personnel, such as a claimant, service officer, or attorney, reviews a claims folder during the special-handling period.
The VA employee does not need to be from the Veterans Service Center or pension management center, but he/she must
  • certify over his/her signature that no material was added to or deleted from the record that is subject to review by CAVC, and
  • not comment on or offer explanations of material contained in the claims folder.

4.  Handling Paper Claims Folders After the Special-Handling Period

Introduction
This topic contains information about handling paper claims folders when special handling is no longer required, including

Change Date
August 17, 2018

III.ii.4.I.4.a.  Handling Claims Folders After CAVC Issues a Decision
Follow the steps in the table below when handling claims folders after CAVC issues a decision.
Step
Action
1
The CAVC Litigation Group transfers the claims folder and a copy of the decision to BVA for appropriate action.
2
Did CAVC issue a decision that requires the RO to take specific action?
  • If yes, take appropriate action to process the CAVC decision.
  • If no, proceed to Step 3.
Reference:  For more information on handling CAVC decisions, seeM21-1, Part III, Subpart ii, 5.H.3.
3
If CAVC declines jurisdiction or issues a decision that does not requireVA to take specific action, the CAVC Litigation Group will remove from the claims folders the
  • outside labels
  • file inserts, and
  • BVA evidence tabs.
4
The CAVC Litigation Group returns the claims folder to the RO using the routine transfer procedures.  The RO must
  • transfers documents not already of record from the temporary file to the paper claims folder
  • destroy the temporary file and any duplicate documentation it contains under current directives, and
    • store the paper claims folder in the main file bank, or
    • send the paper claims folders to the scanning vendor to convert into an eFolder, when applicable.

III.ii.4.I.4.b.  Actions to Take After Expiration of the Special-Handling Period
Follow the steps in the table below if the
Step
Action
1
Remove the paper claims folder from the secured area.
2
Remove from the folder the
  • outside label
  • file inserts, and
  • BVA evidence tabs.
3
Transfer the contents of the temporary file to the permanent claims folder.
4
Route the paper claims folder to the main file bank or, when applicable, send it to the scanning vendor to convert into an eFolder.
5
Destroy the temporary file according to current procedures.

5.  Return of Paper Claims Folders From the CAVC Litigation Group

Introduction
This topic contains information on the return of paper claims folders from the CAVC Litigation Group, including

Change Date
August 17, 2018

III.ii.4.I.5.a.  Controlling Paper Claims Folders the CAVC Litigation Group Returns
The table below describes the policy for controlling paper claims folders the CAVC Litigation Group returns.
Date
Policy
Prior to June 1, 1997
The CAVC Litigation Group retained control of the paper claims folder until CAVC made a final determination concerning an appellate issue.
Effective June 1, 1997
The CAVC Litigation Group returns the paper claims folder to the RO when CAVC completes the ROA process.
Note:  The ROA is an extract of the claims folder to which both parties agree.

III.ii.4.I.5.b.  Role of the CAVC Litigation Group
After CAVC completes the ROA process, the CAVC Litigation Group
  • attaches to the front of the paper claims folder a letter indicating the folder is associated with an unresolved appeal at CAVC
  • marks the paper claims folder DO NOT OPEN IN MAILROOM, and
  • returns the paper claims folder to the attention of the VSCM or PMCM at the ROJ.

III.ii.4.I.5.c.  Receipt of Claims Folders From the CAVC Litigation Group
ROs must follow the steps in the table below after receiving a paper claims folder from the CAVC Litigation Group following completion of the ROA process.
Step
Action

1
Merge the temporary file with the permanent claims folder.
2
If present, remove the following from the claims folder:
  • outside label
  • file inserts that do not bear the signature of a Veterans Benefits Administration or Veterans Health Administration employee, and
  • BVA evidence tabs.
Note:  Maintaining the integrity of the paper claims folders is not necessary because the ROA is filed at CAVC.
Reference:  For more information on handling claims folders after a CAVC decision, see M21-1, Part III, Subpart ii, 4.I.4.a.
3
In the center section of the claims folder, permanently maintain all file inserts

III.ii.4.I.5.d.  Requests for the Return of a Paper Claims Folder
If the CAVC Litigation Group determines it needs a claims folder after it returned the folder to an RO, the group will request the return of the paper claims folder.
After receiving a request from the CAVC Litigation Group for the return of a claims folder, send the folder to the group using VA’s contracted shipping service.
If a delay of more than five days in sending the claims folder to the CAVC Litigation Group is unavoidable, notify the group by e-mail (OGC PSG7 CFILES) of the
  • reason for the delay, and
  • date the RO expects to send the claims folder.
Important:
  • Do not delay sending a claims folder to the CAVC Litigation Group because a claim for other benefits is pending.  In that situation, make photocopies of documents required to process the pending claim and place them in a temporary file.
  • Do not send a paper claims folder to the scanning vendor once the CAVC Litigation Group has requested the folder, as this may prevent the group from accessing the folder in a timely manner.

III.ii.4.I.5.e.  First Dispositive Pleadings
The CAVC Litigation Group will return paper claims folders to ROs when the CAVC has taken final action before a first dispositive pleading has been filed.  Such cases involve, but are not limited to, findings that the
  • CAVC lacks jurisdiction over the appellate issue(s), and
  • appellant did not comply with CAVC rules.

III.ii.4.I.5.f.  Requests for a Claims Folder Prior to Completion of the ROA Process
If an RO requires the return of a paper claims folders prior to completion of the ROA process, the RO must send a request to the CAVC Litigation Group.
Note:  The CAVC Litigation Group will determine if the paper claims folders can be temporarily returned to the RO.
Historical_M21-1MRIII_ii_4_SecI_5-28-2014.doc May 11, 2019 115 KB
8-17-18_Key-Changes_M21-1III_ii_4_SecI.docx May 11, 2019 65 KB
Change-July-20-2015-Transmittal-Sheet-M21-1III_ii_4_SecI_TS.docx May 11, 2019 42 KB
2-19-19_Key-Changes_M21-1III_ii_4_SecI.docx May 11, 2019 52 KB
in Chapter 4 Files and Folder Control, Part III General Claims Process, Subpart ii Initial Screening and Determining Veteran Status
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