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M21-1, Part III, Subpart iv, Chapter 2, Section B – Revision of Decisions

Overview


In This Section
This section contains the following topics:

1.  Confirming Rating Activity Jurisdiction


Change Date

May 15, 2017

III.iv.2.A.1.a.  Pre-rating Review to Confirm Rating Activity Jurisdiction

The rating activity must review cases routed for a rating decision, to confirm that the claimed issues require a rating decision in accordance with M21-1, Part III, Subpart iv, 1.1.b.
Before issuing a rating decision, the rating activity must also ensure that any needed administrative decisions, such as a line of duty determination, have been completed and authorized.
References:  For more information on

2.  Reviewing for Compliance With VA’s Duty to Notify and Assist


Introduction

The following topic contains information about considering VA’s duty to notify and assist, including

Change Date

April 9, 2018

III.iv.2.A.2.a.  Duty to Notify Review by the Rating Activity

The decision maker is responsible for ensuring that the Department of Veterans Affairs’ (VA’s) duty to notify has been satisfied before proceeding to a decision.  Use the table below to review the evidence of record and ensure VA’s duty to notify requirements have been met.
If …
Then review …
VA receives a claim on the prescribed form
  • the form to ensure it is substantially complete, and
  • the claim to ensure it is not inherently incredible or lacking merit.
References:  For more information on
the form is substantially complete
the Section 5103 notice to ensure it meets the legal requirements for the claim.
Exception:  If all benefits sought can be granted, Section 5103 notice is not required.
Notes:
  • EZ forms provide the Section 5103 notice for most types of claims.
  • A notification letter providing the Section 5103 notice must be sent to the claimant if
    • the claim was not filed on an EZ form
    • the EZ form did not provide the Section 5103 notice for the specific type of claim, or
    • the claim was filed by a power of attorney.
References:  For more information on
VA becomes aware of the existence of relevant records before the claim is decided
the claims folder to ensure that VA has notified the claimant
  • of the relevant records
  • of the need for a release of records (if applicable), and
  • to obtain the records and provide them to VA if the claimant does not provide the necessary release.
evidence requested by VA from a third party does not exist or cannot be obtained
the claims folder to ensure that VA has
  • identified the records that could not be obtained
  • explained the efforts VA made to obtain the records
  • described any further action VA will take regarding the claim, including, but not limited to notice that VA will decide the claim based on the evidence of record unless the claimant submits the records VA was unable to obtain, and
  • indicated that the claimant is ultimately responsible for providing the evidence.
Note:  For non-Federal records requests, VA may provide the notice at the same time it makes a follow-up attempt to obtain the relevant records.
a proposed adverse action is referred for final decision
the notice of proposed adverse action to ensure all the elements of due process have been met.
References:  For more information about
References:  For more information on

III.iv.2.A.2.b.  Duty to Assist Review by the Rating Activity

The decision maker is responsible for ensuring that the duty to assist has been satisfied before proceeding to a decision.  Use the table below to review the evidence of record and ensure VA’s duty to assist requirements have been met.
If the information or evidence is …
Then ensure VA …
collected by VA on a prescribed form
notified the claimant
  • what form must be completed
  • how the form can be obtained, and
  • when the form must be received by.
requested from Federal agencies
  • received complete records, or
  • if the records were not obtained, determined that they do not exist or additional efforts would be futile.
Reference:  For more information on duty to assist with Federal records, see
requested from the claimant and/or private providers
  • received complete records, or
  • if the records are not received, made reasonable efforts to obtain them.
References:  For more information on
VA treatment records
  • obtained all VA treatment records pertinent to the issues, and
  • associated them with the electronic claims folder.
Note:  Vet Center records require the Veteran’s authority to release records and are not stored in the Compensation and Pension Record Interchange (CAPRI).
References:  For more information on
an examination request
  • requested all exams and medical opinions, when required, and
  • included the correct information to the examiner in the request(s).
Reference:  For more information on VA’s duty to provide medical examinations or medical opinions, see
an examination report
  • received a complete examination report that is sufficient for rating purposes, or
  • received notice that the claimant failed to report.
References:  For more information on
References:  For more information on

3.  Considering Matters of Law


Introduction

This topic contains information about considering matters of law, including

Change Date

April 9, 2018

III.iv.2.A.3.a. Referring Claims to Authorization That Are Unsupported by Law

Refer a claim to the authorization activity for an administrative denial of benefits when the claimed entitlement is unsupported by law.
Example:  Such claims include pension claims from Veterans with only peacetime service.
Reference:  For more information on denying a claim without a rating decision, seeM21-1, Part III, Subpart v, 2.A.3.c.

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4
5 Favorable Findings
6

1.  Finality of Decisions


Introduction

This topic contains general information on revising prior determinations, including

Change Date

February 19, 2019

III.iv.2.B.1.a.  Binding Determinations

Under 38 CFR 3.104 a decision of a Department of Veterans Affairs (VA) rating agency is binding on all VA field offices as to the conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. 5104.

III.iv.2.B.1.b.  Significance of Binding Determinations

Binding determinations are not subject to revision except by the Board of Veterans’ Appeals (BVA), by Federal court order, or as provided in 38 CFR 3.105,38 CFR 3.2500, and 38 CFR 3.2600.

III.iv.2.B.1.c.  Finally Adjudicated Claims

Public Law 115-55, Veterans Appeals Improvement and Modernization Act of 2017, required VA to update the definition of finally adjudicated claim in 38 CFR 3.160(d).
Use the table below to determine the applicable definition of a finally adjudicated claim.
If the claim was decided …           
Then the claim is finally adjudicated …
 
prior to February 19, 2019,
  • when the appeal period has expired without an appeal being initiated, or
  • upon disposition on appellate review.
on or after February 19, 2019,
  • upon expiration of the period in which to file a review option available under 38 CFR 3.2500, or
  • upon disposition on judicial review where no such review option under 38 CFR 3.2500 is available.

III.iv.2.B.1.d.  Binding but Not Finally Adjudicated Claims

A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c).

III.iv.2.B.1.eRevising Binding Decisions

Use the table below if revising a prior decision that is binding as defined in M21-1, Part III, Subpart iv, 2.B.1.b to determine which revision authority(ies) can be applied.
If …
Then the decision may be revised …
  • the Veteran filed a timely legacy notice of disagreement (NOD), and
  • elected de novo review in a timely manner
by a Decision Review Officer (DRO)
  • on the same evidentiary basis
    • under de novo review authority, or
    • when a clear and unmistakable error (CUE) is identified, or
  • when new and material evidence is submitted or developed after the prior decision.
  • the Veteran filed a timely legacy NOD, and
  • did not elect de novoreview (or did not make a timely election)
by a DRO or other appropriate decision maker as assigned by division management
  • on the same evidentiary basis
    • based on a difference of opinion, if approved by Compensation Service or Pension and Fiduciary (P&F) Service, or
    • when a CUE is identified, or
  • when new and material evidence is submitted or developed after the prior decision.
there is no legacy NOD or request for decision review
by a member of the rating activity or other appropriate decision maker as assigned by division management on the same evidentiary basis
  • based on a difference of opinion, if approved by VA Central Office, or
  • when a CUE is identified.
there is a supplemental claim
by a member of the rating activity or other appropriate decision maker as assigned by division management
  • on the same evidentiary basis
    • based on a difference of opinion, if approved by VA Central Office, or
    • when a CUE is identified, or
  • when new and relevant evidence is submitted or developed after the prior decision.
the claimant requested higher-level review (HLR)
by a higher-level reviewer on the same evidentiary basis
  • under de novo review authority
  • based on a difference of opinion, if approved by VA Central Office, or
  • when a CUE is identified.
References:  For more information on

2.  Considering Additional Service Records


Introduction

This topic contains general information on considering additional service records after VA issues a decision on a claim, including

Change Date

February 19, 2019

III.iv.2.B.2.a.  Considering Additional Service Records

If VA receives or associates with the claims folder additional qualifying service records that existed and had not been associated with the claims folder when VA first decided a claim, VA will reconsider the claim under the provisions of 38 CFR 3.156(c).  See M21-1, Part III, Subpart iv, 2.B.2.b for what is considered “qualifying service records.”
Important:  If qualifying service records are received after VA initially decided a claim, VA must follow the procedures in M21-1, Part III, Subpart iv, 2.B.2.d to reconsider the claim, even if a subsequent decision awarded service connection (SC) for the disability.
References:  For more information on

III.iv.2.B.2.b.Service Records That Warrant Consideration Under 38 CFR 3.156(c)(1)

Qualifying service records for the purpose of 38 CFR 3.156(c)(1) are any service records forwarded to VA from the Department of Defense or service departments, including

  • records related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name, and
  • declassified records that could not have been obtained because they were classified when VA decided the claim.

Exception:  Records identified in M21-1, Part III, Subpart iv, 2.B.2.c are not qualifying records for the purpose of 38 CFR 3.156(c)(1).


III.iv.2.B.2.c.  Service Records That Do Not Justify Consideration Under 38 CFR 3.156(c)(1)

As stated in 38 CFR 3.156(c)(2), the receipt of service records in the following two scenarios will not trigger reconsideration under the provisions of 38 CFR 3.156(c)(1)

  • the service records did not exist when VA decided the claim, or
  • the claimant failed to provide sufficient information to enable VA to identify and obtain the service records (for example, the claimant failed to provide stressor information that would have allowed VA to contact the Joint Services Records Research Center).
Explanation:  In the first category above, the evidence did not exist to support entitlement when VA decided the prior claim.  In the second category, VA would have fulfilled its duty to assist in attempting to procure such records at the time of the prior claim if it had the information necessary to submit the request.
Note:  The exception created in 38 CFR 3.156(c)(2) became effective October 6, 2006.
Important:  Receipt of service records that do not warrant application of 38 CFR 3.156(c)(1) will still trigger review under the more applicable of

III.iv.2.B.2.d.Procedures for Rating Activity Review

All additional non-duplicate service records received at any time after VA makes a decision on a claim shall be forwarded to the rating activity for review.  See the table below for actions to take when reviewing the additional service records.
If service records …
Then the rating activity must …
do not require reconsideration of the merits of a previous claim
Example:  Military dental records are received five years after a previous rating decision awarded SC for hypertension, low back strain, and hearing loss. No formal rating is required.
indicate “no action necessary” on VA Form 21-6789, Deferred Rating Decision.  End product (EP) 699 will be cleared.
require reconsideration of the merits of a previously claimed issue(s)
Example:  Additional service treatment records received indicate treatment from a private doctor while the Veteran was on leave during active duty. Several issues were previously denied SC in two separate rating decisions. All of these issues must now be reconsidered in a formal rating decision.
complete a formal rating decision under EP 020 and include all pertinent issues that warrant reconsideration.
contain a chronic unclaimed condition refer the claim to authorization to solicit a claim. See M21-1, Part IV, Subpart ii, 2.A.1.e.
Reference:  For more information on assigning effective dates for claims reviewed under 38 CFR 3.156(c) following receipt of additional service records, see M21-1, Part III, Subpart iv, 5.C.6.f.

3.  Readjudicating a Previously Decided Claim After February 19, 2019


Introduction

This topic contains information on readjudicating a previously decided claim based on new and relevant evidence after February 19, 2019, including

Change Date

February 19, 2019

III.iv.2.B.3.a.  Requesting Readjudication of a Previously Decided Claim

Once VA issues notice of a decision on an issue, the decision is considered binding and the record closed to new evidence.  A claimant may request readjudication of the issue by filing a(n)
  • allegation of CUE
  • supplemental claim with new and relevant evidence
  • request for HLR, or
  • NOD to BVA.
References:  For more information on

III.iv.2.B.3.b.  Form Requirements For Claim Readjudication

Once the record closes, the mere submission of evidence doesn’t require readjudication of the claim.  The claimant must file a specific request, which in most cases, requires the submission of a completed form.
The table below represents the required forms for the review and readjudication of a claim after the record closes.
Review Option
Required Form
allegation of CUE
n/a
supplemental claim
HLR
Important:
  • Process submissions of evidence that are not an allegation of CUE or accompanied by a required form as a request for application as noted inM21-1, Part III, Subpart ii, 2.C.6.
  • Claimants must file NODs directly to BVA.

III.iv.2.B.3.c.  Section 5103 Requirements

Use the table below to determine if a Section 5103 notice is needed.
If the claimant files a(n) …
Then Section 5103 notice is …
HLR
not needed.
supplemental claim within a year
not needed.
supplemental claim more than a year after decision
required.
Important:  Review VA Form 20-0995 in accordance with M21-1, Part III, Subpart ii, 2.D.1.f to determine if the claimant acknowledged receipt of Section 5103 notice on the supplemental claim form.
Reference:  For more information on Section 5103 notice, see M21-1, Part I, 1.B.

III.iv.2.B.3.d.  Definition:  New and Relevant

As defined in 38 CFR 3.2501new evidence is evidence not previously part of the actual record before agency adjudicators.  Relevant evidence is information that tends to prove or disprove a matter at issue in a claim.  Relevant evidence includes evidence that raises a theory of entitlement that was not previously addressed.

III.iv.2.B.3.e.  Determining if Evidence Is New and Relevant

If the claimant files or identifies potentially new evidence with a supplemental claim, readjudicate the claim.
When determining if evidence is relevant consider whether the evidence
  • relates to an element for which the claim was previously denied, or
  • raises a theory of entitlement not addressed by the previous decision.

III.iv.2.B.3.f.  Duty to Assist and Claim Reviews

Upon receipt of a substantially complete supplemental claim, VA’s duty to assist in gathering evidence under 38 CFR 3.159 is triggered and includes any such assistance that may help secure new and relevant evidence as defined in 38 CFR 3.2501(a) to complete the supplemental claim application.
HLRs are based on a closed evidentiary record, and therefore, no duty to assist applies.  However, as part of the HLR process, the adjudicator will determine if VA fulfilled its duty to assist during the adjudication of the prior claim.
Reference:  For more information on HLR and duty to assist errors, see

III.iv.2.B.3.g.  Handling Requests to Review a Determination Regarding New and Relevant Evidence

A claimant may request review of a determination that evidence is not new and relevant by timely filing one of the review options under 38 CFR 3.2500.
In these cases, limit the rating decision to that issue, citing all of the following in the summary of evidence and reasons for decision:
  • the date of the
    • original denial
    • notification of that denial
    • receipt of the evidence submitted
    • finding that the evidence was not considered to be new and relevant, and
    • notification of that decision, and
  • the evidence submitted.

4.  CUE


Introduction

This topic contains information on CUEs, including


Change Date

February 19, 2019

III.iv.2.B.4.a.  Definition:  CUE

Under 38 CFR 3.105(a) a clear and unmistakable error (CUE) exists if all three of the following requirements are met:
  • either the correct facts, as they were known at the time, were not before the adjudicator, (e.g., the adjudicator overlooked them) or the statutory or regulatory provisions extant at the time were incorrectly applied
  • the error must be the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and
  • the determination must be based on the record and the law that existed at the time of the prior adjudication in question.
Notes:
  • CUEs are undebatable.  If it is not absolutely clear that a different outcome would have resulted, the error complained of cannot be clear and unmistakable.
  • CUEs can be alleged by a claimant or discovered by VA during the adjudication of a claim.
Reference:  For more information on the definition of CUE, see

III.iv.2.B.4.b.  Provisions of 38 CFR 3.105(a)

38 CFR 3.105(a) provides that if a CUE is established in a previous, final decision, then the
  • previous decision is reversed or amended, and
  • the effect is the same as if the corrected decision had been made on the date of the reversed decision.
Note:  Binding decisions may be revised based on CUE prior to final adjudication if the outcome is clearly erroneous, as discussed in M21-1, Part III, Subpart iv, 2.B.1.e38 CFR 3.104, and 38 CFR 3.105(a)(2).
Exceptions:
  • protection of evaluation in effect for 20 years or more under 38 CFR 3.951(b), and
  • protection of SC in effect for 10 years or more under 38 CFR 3.957.
References:  For more information on

III.iv.2.B.4.c.  Identifying a CUE

A CUE will fall into one or more of the following categories:
  • the decision maker failed to apply or incorrectly applied the appropriate laws or regulations.  (Note: These legal errors commonly involve pre-reduction due process or the failure to apply a statutory or regulatory presumption)
  • the decision maker overlooked material facts of record, or
  • the decision maker failed to follow a procedural directive that involved a substantive rule (a rule that regulates a right).
Important:  A duty to assist deficiency such as an insufficient examination cannot form a basis for CUE since such deficiency creates only an incomplete rather than an incorrect record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012) andCaffrey v. Brown, 6 Vet.App.377, 384 (1994).
Exception:  A failure to consider VA medical records, which were in VA’s constructive possession at the time of the prior decision, may constitute a CUE, if such failure affected the outcome of the claim.  See VAOPGCPREC 12-1995.
References:  For more information on

III.iv.2.B.4.d.  Considering Requests for Revision Based on CUE

Although there is no specific claim form required to request revision of a decision based on CUE, the request must be submitted in writing and signed by either the claimant or his/her authorized representative.
In a valid claim of CUE, the claimant must set forth clearly and specifically the alleged error, or errors, of fact or law in the prior decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error.
Notes:
  • A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.
  • If the CUE alleged is different from a CUE issue previously rejected, use a rating to determine whether or not a CUE was made on the new issue.
Important:  If a CUE finding has been determined, it may affect subsequent rating decisions to the extent that revisions in the subsequent rating decisions may be required.  See Pirkl v. Shinseki, 718 F. 3d 1379 (Fed. Cir. 2013).
Reference:  For more information on responding to an invalid CUE request, seeM21-1, Part III, Subpart iv, 2.B.4.e.

III.iv.2.B.4.e.  Responding to Invalid Requests of CUE

Use the table below to determine how to respond to an invalid CUE request.
If the assertion of CUE …
Then send a letter that includes the following notification language …
is non-specific as defined inM21-1, Part III, Subpart iv, 2.B.4.d
We received your allegation of a clear and unmistakable error (CUE) with our decision dated [insert date].  For VA to consider your request for revision based on CUE, you must specify the factual or legal error you believe VA made in our prior decision.  We will take no further action on your request until we receive this information.
was previously denied on the same factual basis
We received your allegation of a clear and unmistakable error (CUE).  We previously decided your allegation of CUE on the same basis and notified you of our decision on[insert date].  That decision is now final.  A claimant is not entitled to request CUE again once there has been a final decision denying CUE on the same basis.  We will take no further action on your request.

III.iv.2.B.4.f.  Determining a Case of CUE

When determining whether there is a CUE
  • consider only the
    • law that existed at the time of the prior decision, and
    • evidentiary record that was before the rating activity at the time of the prior decision (to include medical records in VA’s constructive possession), and
  • determine whether the error would have by necessity changed the original rating decision.
Notes:
  • Errors that would not have changed the outcome are harmless and the previous decisions do not need to be revised.
  • A new medical diagnosis (not erroneous diagnosis that warrants severance)  that corrects an earlier diagnosis ruled in a previous rating would not be considered an error in the previous adjudication of the claim.
  • The duty to assist from 38 CFR 3.159 does not apply to requests for revision based on CUE.
Important:  Although CUEs are based on the record that existed at the time of the prior adjudication in question, a CUE finding that SC was predicated on a clearly erroneous diagnosis may be based on evidence that accumulated after the original decision to award SC.  In such cases, if severance of SC is warranted, follow the provisions of 38 CFR 3.105(d).  See Stallworth v. Nicholson, 20 Vet.App. 482, 488 (2006) and Daniels v. Gober, 10 Vet.App. 474 (1997).
References:  For more information on

III.iv.2.B.4.g.  Applying the Benefit of the Doubt Under 38 U.S.C. 5107(b)

The benefit of the doubt under 38 U.S.C. 5107(b) is not applicable to a CUE determination since

  • an error either undebatably exists, or
  • there was no error within the meaning of 38 CFR 3.105(a).

Reference:  For more information on applying the benefit of the doubt under 38 U.S.C. 5107(b), see Russell v. Principi, 3 Vet.App. 310 (1992).


III.iv.2.B.4.h.Approval of Ratings Prepared Under 38 CFR 3.105(a)

All rating decisions prepared under 38 CFR 3.105(a) require the approval of the Veterans Service Center Manager (VSCM) or Pension Management Center Manager (PMCM), or designee at the coach level or higher.

Ratings prepared by DROs require the approval of the VSCM, PMCM, or Assistant VSCM or PMCM if they address

  • severance of SC, or
  • a reduction in evaluation of a service-connected (SC) disability(ies).

Exception:  Approval of the VSCM, PMCM, or designee is not necessary if the rating decision is the result of a BVA or U.S. Court of Appeals for Veterans Claims (CAVC) decision.


III.iv.2.B.4.i.  Preparing a CUE Decision

Use the table below to prepare a CUE decision.
If …
And …
Then …
a DRO
  • finds a CUE on a prior decision
  • prepares a draftdecision that proposes on the basis of the CUE to
    • reduce an SC evaluation, or
    • sever SC for a disability
the VSCM or PMCM agrees
  • the DRO finalizes and signs the decision, and
  • the VSCM or PMCM (or designee) signs the decision.
a DRO
  • finds a CUE on a prior decision
  • prepares a draftdecision that proposes on the basis of a CUE to
    • reduce an SC evaluation, or
    • sever SC for a disability
the VSCM or PMCM does notagree
a DRO
  • finds a CUE on a prior decision, and
  • writes up an allowance on the basis of a CUE
the DRO signs the decision.
a member of the rating activity
  • believes there is a CUE, and
  • prepares a draft decision
the VSCM or PMCM agrees
  • the member of the rating activity who prepared the draft decision finalizes and signs it, and
  • the VSCM or PMCM signs the decision.
a member of the rating activity
  • believes there is a CUE, and
  • prepares a draft decision
the VSCM or PMCM doesnot agree
  • the VSCM or PMCM documents his/her disagreement on VA Form 21-0961, and
  • the member of the rating activity who prepared the draft decision removes the proposed CUE and confirms the existing decision.
Important:
  • If the CUE involves a rating issue, the decision maker who corrects the prior rating decision must include a certificate of error on the Codesheet.
  • The final decision reducing the evaluation or severing SC does not require the signature and approval of the VSCM, PMCM, Assistant VSCM or PMCM unless new evidence has been received since the proposed decision was approved.
  • In all cases where a decision is revised through CUE authority, a copy of the revised decision should be provided to the person who prepared the original decision (or his/her supervisor) as a training tool.

III.iv.2.B.4.j.  Tracking Compensation CUE Decisions in the CUE Log

To minimize overpayments, underpayments, and inaccurately continuing beneficiaries for Compensation benefits, VSCMs must log each CUE decision in the Compensation Service CUE SharePoint site.
Follow the steps in the table below to enter each CUE into the Compensation Service CUE SharePoint site.
Step
Action
1
Go to the Compensation Service CUE SharePoint site.
2

5.  Favorable Findings


Introduction
This topic contains information on the binding nature of favorable findings, including

Change Date
February 19, 2019

III.iv.2.B.5.a.  Definition:  Favorable Finding

As stated in 38 CFR 3.104(c), a favorable finding means a conclusion either on a question of fact or on an application of law to facts made by an adjudicator concerning the issue(s) under review.
Reference:  For more information on findings of fact and conclusions of law, seeM21-1, Part III, Subpart iv, 5.A.1.c.

III.iv.2.B.5.b.  Requirement to Notify Claimant of Favorable Findings

Each notice of a decision affecting benefits must address any findings made by the adjudicator that are favorable to the claimant.
Note:  This requirement applies to decision notices issued on or after February 19, 2019.
Reference:  For more information on providing notice of favorable findings in a

III.iv.2.B.5.c.  Binding Nature of Favorable Findings

Any finding favorable to the claimant made by either a VA adjudicator, as described in 38 CFR 3.103(f)(4), or by BVA, as described in 38 CFR 20.801(a), is binding on all subsequent VA and BVA adjudicators, unless rebutted by clear and unmistakable evidence to the contrary.

III.iv.2.B.5.d.  Overturning Favorable Findings

To overturn a prior favorable finding, there must be clear and unmistakable evidence to rebut the favorable finding.
The clear and unmistakable rebuttal standard may be satisfied by a finding that the evidentiary record as a whole completely lacks any plausible support for the favorable finding.  This does not require a determination that the outcome of the benefit adjudication would undebatably change.
Note:  Unlike CUEs, a decision to overturn a previous favorable finding does notrequire additional approval signature(s).  If however, the overturning of favorable findings leads to the conclusion that the previous decision to award a benefit was clearly and unmistakably erroneous, then the normal CUE signature requirements apply as outlined in M21-1, Part III, Subpart iv, 2.B.4.h.

6.  Jurisdiction When There Has Been a BVA Decision


Introduction

This topic contains information on determining jurisdiction for BVA determinations, including


Change Date

February 19, 2019

III.iv.2.B.6.a.  Determining Jurisdiction for Review of a CUE Allegation

Whether a decision was appealed to BVA or not determines the jurisdiction for review of a CUE allegation, either in fact or in substance.
Use the table below to determine
  • who has jurisdiction to review an allegation for a CUE determination, and
  • how to notify the claimant.
If …
Then the Regional Office (RO) …
And a claims processor …
a decision has been affirmed by BVA
does not have jurisdiction to review the claim for a CUE determination
Rationale:  The RO does not have jurisdiction to consider a claim of CUE in a decision that has been subsumed by a BVA decision.
notifies the claimant
  • that the RO does not have jurisdiction to review the claim for a CUE determination
  • of his/her decision review rights, and
  • that he/she should file a motion for reconsideration by BVA, if a review at that level is desired.
  • the decision was not appealed, but
  • a subsequent legacy reopened or supplemental claim was followed by a BVA affirmance
does not have jurisdiction to review the claim for a CUE determination
Rationale:  General Counsel has concluded that the RO does not have jurisdiction to consider a CUE claim where BVA has
  • reviewed the entire record of the claim following reopening, and
  • denied the benefits previously denied in the unappealed decision.
notifies the claimant
  • that the RO does not have jurisdiction to review the claim for a CUE determination
  • of his/her decision review rights, and
  • that he/she should file a motion for reconsideration by BVA, if a review at that level is desired.
Note:  All SOCs for legacy appeals in which the issue on appeal involves a prior unappealed RO decision, followed by a claim to reopen the claim that was decided by BVA, should contain a citation toVAOPGCPREC 14-1995.
  • the decision was not appealed, and
  • a subsequent BVA decision merely
    • concludes that new and material or new and relevant evidence has not been submitted, and
    • denies reopening/readjudication of the prior claim
does have jurisdiction to review the claim for a CUE determination
Rationale:  The BVA decision does not bar a claim of CUE in the prior unappealed RO decision.  General Counsel has concluded that when BVA limits its decision to whether new and material/relevant evidence was submitted, it does not decide the merits of the issues raised in the claim.
reviews the unappealed decision for CUE.
the allegation of CUE involves an issue that has not been affirmed by a BVA decision
does have jurisdiction to review the claim for a CUE determination
reviews the unappealed decision for CUE.

III.iv.2.B.6.b.  Binding Nature of BVA Decisions

BVA decisions are binding on the Veterans Benefits Administration decision makers unless the claimant files a supplemental claim with new and relevant evidence within one year of the BVA decision.
After BVA issues a decision on an appeal, an appellant may also file
  • an appeal with CAVC, or
  • a motion for reconsideration with BVA asserting CUE or presenting new service records.
Notes:
  • In the absence of new and relevant evidence, ROs do not have the authority to award a benefit denied by a BVA decision.
  • A motion for reconsideration of a BVA decision is not a claim; therefore, the motion does not need to be submitted to BVA on a prescribed form.
References:  For more information on
2-19-19_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 86 KB
Historical_M21-1III_iv_2_SecB_8-20-15.docx May 15, 2019 106 KB
Historical_M21-1III_iv_2_SecB_9-22-17.docx May 15, 2019 87 KB
Historical_M21-1III_iv_2_SecB_7-22-16.docx May 15, 2019 110 KB
3-31-17_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 86 KB
11-17-15_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 79 KB
9-22-17_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 88 KB
1-28-16_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 84 KB
11-19-18_Key-Changes_M21-1III_iv_2_SecB.docx May 15, 2019 70 KB
Change-August-20-2015-Transmittal-Sheet-M21-1III_iv_2_SecB_TS.docx May 15, 2019 38 KB
Change-June-25-2015-Transmittal-Sheet-M21-1MRIII_iv_2_SecB_TS.doc.docx May 15, 2019 49 KB
Change-March-24-2015-Transmittal-Sheet-M21-1MRIII_iv_2_SecB_TS.docx May 15, 2019 40 KB
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