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M21-1, Part III, Subpart v, Chapter 1, Section A – General Information

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3

1.  General Information on Administrative Decisions


Introduction

This topic contains general information on administrative decisions, including

Change Date

February 19, 2019

III.v.1.A.1.a.  Issues Requiring an Administrative Decision

The table below lists
  • the types of issues that require a formal administrative decision, and
  • references to additional information about the issues.
Unless otherwise specified, complete an administrative decision regardless of whether the decision is favorable or unfavorable.
Important:
  • The information in this table may not be all-inclusive.
  • Instructions for handling specific issues found elsewhere in the M21-1 may vary from the general guidelines in this section.  Those specific instructions override the general instructions provided here.
Issue
Reference
Character of Discharge (COD)
  • Line of Duty
  • Willful Misconduct
Lack of Qualifying Service
Exception:  There is no requirement to complete an administrative decision to deny a claim for Veterans and/or Survivors Pension for lack of qualifying service under the circumstances described in last row of the table inM21-1, Part III, Subpart ii, 6.A.1.f.
Former Prisoner of War Status
Common Law Marriage
Inference of Remarriage
Deemed Valid Marriage
Continuous Cohabitation (unfavorable decisions only)
Cessation of Marital Relationship Due to a Finding of Death
Parental Relationship (unfavorable decisions only, unless contested)
Note:  Administrative decisions of this type do not require approval by a Veterans Service Center Manager (VSCM)/Pension Management Center Manager (PMCM) designee.
Child by Adoption (unfavorable decisions only)
Note:  Administrative decisions of this type do not require approval by a VSCM/PMCM designee.
Stepchild Relationship (unfavorable decisions only)
Note:  Administrative decisions of this type do not require approval by a VSCM/PMCM designee.
Child Income Hardship Exclusion
Note:  Administrative decisions of this type do not require approval by a VSCM/PMCM designee.
Presumed Death
Findings of Fact and Date of Death
Homicide
Forfeiture of Benefits Based on Fraud or Treasonable Acts
Insanity
Note:  The rating activity makes insanity determinations which may be used in making an administrative decision regarding eligibility for benefits.
Administrative Error
Note:  Administrative decisions of this type require approval by a VSCM/PMCM or a designee only if the amount of the erroneous payment is at least $2,000.
Apportionments
Note:  Administrative decisions of this type do not require approval by a VSCM/PMCM designee.
Contested Claims (other than apportionments)
 

III.v.1.A.1.b.  Who Makes, Documents, and Approves Administrative Decisions

The development activity typically makes and documents administrative decisions.
Except as noted in M21-1, Part III, Subpart v, 1.A.1.a, administrative decisions must be approved by a VSCM or PMCM designee including, but not limited to, a coach.
Note:  A Veterans Service Representative (VSR) below General Schedule (GS) 11 who makes an administrative decision affecting permanent entitlement to benefits (such as decisions on COD or willful misconduct) must obtain signed concurrence from a GS 11 or higher VSR before referring this type of administrative decision to a VSCM/PMCM designee for review.
Reference:  For more information on delegations of authority, see 38 CFR 3.100(a)and 38 CFR 2.6.

2.  Making an Administrative Decision


Introduction

This topic contains information about making an administrative decision on issues involving a pending claim, including


Change Date

February 19, 2019

III.v.1.A.2.a.  Definition:  Evidence

The term evidence signifies all of the means by which an alleged matter of fact may be established or disproved.  For decision-making purposes in the Department of Veterans Affairs (VA), the term generally refers to
  • testimony (including statements in support of a claim)
  • various kinds of documentary proof, and
  • medical or field examination reports.

Evidence may be

  • “positive,” meaning it supports a claimant’s position, or
  • “negative,” meaning it disproves the claimant’s position.
When there is an approximate balance between positive and negative evidence regarding any issue, the evidence is said to be “in equipoise.”
Reference:  For more information about negative evidence, see Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc).

III.v.1.A.2.b.  Considering the Absence of Evidence as Negative Evidence

According to the Federal Circuit Court in Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the absence of evidence that supports a claimant’s position is considered negative evidence that must be weighed when making a decision.
Scenario:  A Veteran files a claim for disability compensation for a knee disorder that was first diagnosed 40 years after his discharge from service.  He submits no lay testimony of symptoms of knee problems and no medical evidence showing treatment or complaint of knee problems during service or the 40-year period that followed.
Analysis:  The absence of evidence (lay or otherwise) showing the existence of a knee disorder during service or the 40-year period that followed constitutes negative evidence for decision-making purposes.

III.v.1.A.2.c.  Assigning Weight to Each Piece of Evidence

When deciding an issue, decision-makers must first determine the “weight” of each piece of evidence, based on its probative value, as defined in M21-1, Part III, Subpart iv, 5.A.
In Gilbert v. Derwinski, 1 Vet.App. 49 (1990), the Court of Appeals for Veteran’s Claims (CAVC) noted that an equipoise decision is
necessarily more qualitative than quantitative; it is one not capable of mathematical precision and certitude.  Equal weight is not accorded to each piece of material contained in the record; every item of evidence does not have the same probative value.

III.v.1.A.2.d.  Weighing All of the Evidence

After collecting all of the available evidence that is relevant to a pending issue,
  • weigh the positive and negative evidence as a whole, and
  • determine if the weight of the positive evidence is greater than, less than, or equal to the weight of the negative evidence.
The table below shows how this activity affects the outcome of the decision-making process.
If …
Then …
a majority of the evidence is positive
decide in the claimant’s favor.
a majority of the evidence is negative
decide against the claimant.
the evidence for and against the claimant’s position is in equipoise
resolve reasonable doubt in the claimant’s favor.
 
Exception:  For exceptions to the “reasonable-doubt rule,” see M21-1, Part III, Subpart v, 1.A.2.e.
Reference:  For more information about the reasonable-doubt rule, seeM21-1, Part III, Subpart v, 1.A.2.f.
 
Reference:  For more information on evaluating evidence, see 38 CFR 4.6.

III.v.1.A.2.e.  Evidence Thresholds

In most cases, when the evidence for and against a claimant’s position is in equipoise, VA resolves reasonable doubt as to the claimant’s entitlement in his/her favor, as described in M21-1, Part III, Subpart v, 1.A.2.f.  There are issues, however, that require “a preponderance of the evidence” to decide in the claimant’s favor.  These include questions of status, such as a person’s relationship to a Veteran.
A preponderance of the evidence exists if the evidence is not in equipoise, which means it is not evenly balanced both for and against the fact or proposition at issue.  When there is a fair preponderance of the evidence, one side clearly outweighs the other.
Note:  Despite erroneous guidance to the contrary, which existed for many years, claims processors must apply the reasonable-doubt rule when determining whether the character of a Veteran’s service renders him/her ineligible for certain VA benefits.
Reference:  For more information about and examples of issues that require a preponderance of the evidence to decide, see

III.v.1.A.2.f.  Application of the Reasonable-Doubt Rule

Except as noted in M21-1, Part III, Subpart v, 1.A.2.e, the reasonable-doubt rule applies when the evidence for and against a claimant’s position is in equipoise.  Under these circumstances, decision makers must resolve the issue in the claimant’s favor.
In Gilbert v. Derwinski, 1 Vet.App 49 (1990), CAVC likened the reasonable-doubt rule to a rule
deeply embedded in sandlot baseball folklore that the “tie goes to the runner.”  If the ball clearly beats the runner, he is out and the rule has no application; if the runner clearly beats the ball, he is safe and, again, the rule has no application; if, however, the play is close, then the runner is called safe by operation of the rule that “the tie goes to the runner.”
Example:
Scenario:
  • A Veteran files a claim for disability compensation based upon injuries acquired as the result of an automobile accident while serving on active duty.
  • The police report indicates the Veteran was speeding at the time of the accident, which occurred when his vehicle failed to negotiate a curve.  The report also states the road surface was slippery as a result of rain earlier in the night, and that there were skid marks indicating the Veteran attempted to stop the vehicle prior to the accident.
  • The combined evidence that the accident was caused by hazardous road conditions, in contrast to being caused by the Veteran’s reckless driving, is in approximate balance.
Result:  The decision maker in this case must resolve reasonable doubt in the Veteran’s favor that injuries resulting from the accident were incurred in the line of duty.
Reference:  For more information on the reasonable-doubt rule, see

3.  Documenting Administrative Decisions


Introduction

This topic contains information on documenting administrative decisions, including

Change Date

February 19, 2019

III.v.1.A.3.a.  General Guidelines for Documenting Administrative Decisions

Due to the importance of administrative decisions and the fact they are subject to review by beneficiaries and their representatives, all formal decisions, including special apportionment decisions, must be documented according to the instructions in M21-1, Part III, Subpart v, 1.A.3.b.
When issuing a decision notice regarding an administrative decision, claims processors must attach a copy of the administrative decision to the decision notice for the claimant’s review.  Accordingly, those who document administrative decisions must ensure the tone they use when discussing the underlying issue is
  • audience-appropriate, and
  • non-adversarial.
Reference:  For more information about electronically signing an administrative decision in the Veterans Benefits Management System (VBMS), see M21-1, Part III, Subpart v, 1.A.3.e.

III.v.1.A.3.b.  Format for Documenting Administrative Decisions

Use the table below to determine the proper format for documenting an administrative decision, depending upon its subject and content.
If an administrative decision is needed to document a(n) …
Then document the decision using …
apportionment decision
net worth determination
COD or statutory bar determination
the approved format for such a determination, as displayed in M21-1, Part III, Subpart v, 1.B.1.l.
determination regarding any other issue specified in M21-1, Part III, Subpart v, 1.A.1.a
the approved format displayed in M21-1, Part III, Subpart v, 1.A.3.g.

III.v.1.A.3.c.  Required Elements of Administrative Decisions

All administrative decisions must include the following elements:
  • identification of the issue(s) adjudicated
  • summary of the
    • evidence considered, and
    • laws and regulations applicable to the claim
  • a listing of findings that are favorable to the claimant under 38 CFR 3.104(c), if any, and
  • identification of the element(s) required to grant the claim that were not met.
Notes:
  • In favorable administrative decisions, the requirements to address favorable findings and unmet elements may be satisfied with a general statement indicating that all of the findings were favorable, and all of the elements to grant the claim were met, as noted in M21-1, Part III, Subpart v, 1.A.3.d.
  • Favorable findings are binding on VA claims processors.  Claims processors may not subsequently overturn them without clear and unmistakable evidence.
References:  For more information on

III.v.1.A.3.d.  Providing Adequate Reasons and Bases for Administrative Decisions

In a well-written decision, with valid reasons and bases, the conclusion should be obvious to the reader.
Follow the instructions that follow the bullets below when citing the reasons and bases for an administrative decision.
  • State the reasons and bases in clear, simple, easy-to-understand terms.  Fully describe the reasoning that led to the decision.
  • Support conclusions by analysis and explanation of the credibility and value of the evidence on which they are based.  The assertion of unsupported conclusions is unnecessary.
  • Acknowledge contentions that argue against the decision, and explain why they did not prevail.
  • Quote directly from relevant laws and regulations, if/as needed, to support the conclusion reached, but do not rely on the citing of regulatory text in its entirety as a substitute for a qualitative discussion.
  • Impartially list all evidence, both favorable and unfavorable.  Generally, identify and paraphrase pertinent information from the available evidence instead of quoting from it at length.
  • Evaluate all the evidence, including sworn oral testimony and certified statements submitted by claimants, and clearly explain why that evidence is found to be persuasive or unpersuasive.
  • Explicitly address each item of evidence and each of the claimant’s contentions.
Important:
  • In all favorable administrative decisions, include the following statement as part of the reasons and bases:  All elements required to decide the issue of [issue] were met, and all findings were favorable to the claimant.
  • In all unfavorable administrative decisions,
    • discuss as part of the reasons and bases all unmet elements that were required to grant the claim
    • clearly label and identify findings that were favorable to the claimant under 38 CFR 3.104(c), if any exist.
Example (for parental relationship):
FAVORABLE FINDINGS: 
  • You are service-connected with an evaluation of 30 percent or more.
  • You provided the name of your claimed foster parent.
  • You provided the Social Security number of your claimed foster parent.
References:  For more information on

III.v.1.A.3.e.  Process for Electronically Signing Administrative Decisions in VBMS

The table below describes the process for electronically signing an administrative decision in VBMS.
Stage
Who Is Responsible
Description
1
decision maker
Saves the completed administrative decision on a shared drive.
Note:  Regional offices may set up folders on a shared drive for this purpose.
2
decision maker
Adds the special issue titled Administrative Decision Review – Level 1 and the Admin Decision tracked item.
Reference:  For more information about adding special issues and tracked items, see the VBMS User Guide.
3
decision maker
4
decision maker
Signs the VA Form 21-0961 by
  • clicking on the First Signature field on the form, and
  • clicking the SIGN button on the SIGN DOCUMENT box that pops up.
5
decision maker
  • Saves the VA Form 21-0961 in the same location as the corresponding decision after the SAVE AS box pops up.
  • Enters his/her personal identification number or local area network password, as applicable, when the ACTIVECLIENT LOGIN box pops up.
6
decision maker
Reassigns the corresponding work item in VBMS to a reviewer using one of the following two methods:
Method 1:  Select
  • the work item from the work queue in VBMS, and
  • Reassign in the ACTION drop-down list.
Example:

VBMS work queue showing reassign function and first item circled in red

Method 2:  Select the number in the ID column from the VBMS work queue that corresponds to the work item associated with the administrative decision.
Example:

VBMS work queue showing the number ID field circled for the first item in the queue

7
decision maker
Selects the reviewer’s name from the drop-down list in the SELECT A USER FOR REASSIGNMENT field of the REASSIGN WORK ITEM box that pops up.
8
decision maker
Enters the location on the shared drive where the decision and VA Form 21-0961 are saved in the PERMANENT NOTE field.
Note:  The note will be displayed on the CLAIM screen.
9
reviewer
  • Navigates to the CLAIM screen in VBMS.
  • Uses the note the decision maker left in Stage 8 to determine the location on the shared drive where the decision and VA Form 21-0961 were saved.
  • Reviews the decision.
  • Takes the actions described in the table below.
If …
Then the reviewer …
  • the reviewer approves the decision with no changes, and
  • a third signature is notrequired
  • adds a signature in the Second Signature field on the VA Form 21-0961, as described in Stage 4
  • resaves the form to the shared drive, as described in Stage 5
  • reassigns the work item to the decision maker in VBMS, as described in Stages 6 and 7 (substituting the reviewer’s name with the decision maker’s name)
  • explains the action taken in the PERMANENT NOTE field on the REASSIGN WORK ITEM box
  • enters the current date in the RECEIVED column of theAdministrative Decision tracked item
  • removes the special issue titledAdministrative Decision Review – Level 1, and
  • updates the claim-level suspense to ensure correct routing for continued development or notification of the claimant.
Note:  The process continues at Stage 11.
  • the reviewer approves the decision with no changes, and
  • a third signatureisrequired
  • adds a signature in the Second Signature field on the VA Form 21-0961, as described in Stage 4
  • resaves the form to the shared drive, as described in Stage 5
  • replaces the special issue titledAdministrative Decision Review – Level 1 with the special issue titled Administrative Decision Review – Level 2 , and
  • assigns the work item to the next reviewer, as described in Stages 6 and 7.
corrections are needed on the decision
  • returns the decision to the decision maker for corrections, using the follow-up feature associated with the Admin Decision tracked item
  • explains the correction(s) that need(s) to be made to the decision in the PERMANENT NOTE field on the REASSIGN WORK ITEM box, and
  • repeats the actions described in Stage 9 after the decision maker makes the necessary corrections and returns the decision for review.
10
reviewer
  • Navigates to the CLAIM screen in VBMS.
  • Uses the note the decision maker left in Stage 8 to determine the location on the shared drive where the decision and VA Form 21-0961 were saved.
  • Reviews the decision.
  • Takes the actions described in the table below.
If …
Then the reviewer …
the reviewer approves the decision with no changes
  • adds a signature in the Third Signature field on the VA Form 21-0961, as described in Stage 4
  • resaves the form to the shared drive, as described in Stage 5
  • reassigns the work item to the decision maker in VBMS, as described in Stages 6 and 7 (substituting the reviewer’s name with the decision maker’s name)
  • explains the action taken in the PERMANENT NOTE field on the REASSIGN WORK ITEM box
  • enters the current date in the RECEIVED column of theAdministrative Decision tracked item
  • removes the special issue titledAdministrative Decision Review – Level 2, and
  • updates the claim-level suspense to ensure correct routing for continued development or notification of the claimant.
corrections are needed on the decision
  • returns the decision to the decision maker for corrections, using the follow-up feature associated with the Admin Decision tracked item
  • explains the correction(s) that need(s) to be made to the decision in the PERMANENT NOTE field on the REASSIGN WORK ITEM box, and
  • repeats the actions described in Stage 10 after the decision maker makes the necessary corrections and returns the decision for review.
11
decision maker
  • Opens VA Form 21-0961 from its location on the shared drive.
  • Verifies all required signatures are present on the form.
12
decision maker
Uploads the administrative decision and VA Form 21-0961to the corresponding electronic claims folder (eFolder).
Reference:  For information about uploading documents into an eFolder, see the VBMS User Guide.
13
decision maker
Deletes the decision and VA Form 21-0961 from the shared drive.
14
decision maker
Deletes all entries in the NOTES field on the CLAIM screen in VBMS regarding the decision review.

III.v.1.A.3.f.  Notifying Claimants of an Unfavorable Administrative Decision

When an administrative decision is unfavorable, send notice to the claimant in a letter containing the elements in M21-1, Part III, Subpart v, 2.B.1.b.
Important:  A single decision notice will be prepared and released to the claimantafter the administrative decision is completed and the claims processor
  • denies benefits, or
  • denies benefits based on a rating decision.
Reference:  For more information on claimant notification following a COD determination, see M21-1, Part III, Subpart v, 1.B.1.i.

III.v.1.A.3.g.  Sample Format for Documenting an Administrative Decision

The following exhibit contains a sample format for documenting an administrative decision:
[Designation of VA Office]                    [File Number]
[Location of VA Office]                    [Veteran’s Name]
 
ADMINISTRATIVE DECISION
  
ISSUE:  [State the question at issue.]
  
EVIDENCE:  [List all documents and information reviewed in making the decision by
Example:
  • Maryland Highway Patrol Accident Report of November 9, 2000, received on January 17, 2017.
  • VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, received on January 17, 2017.
PERTINENT LAWS AND REGULATIONS:  [List all laws and regulations applicable to the decided issue.]
Example:
  • 38 CFR 3.12 (COD)
  • 38 CFR 3.301 (line of duty/misconduct)
  • 38 CFR 3.53 (continuous cohabitation)
DECISION:  [Clearly and briefly state the decision.]
  
REASONS AND BASES:  [The reasons and bases section must be included on all administrative decisions, including favorable ones.]
FAVORABLE FINDINGS:  [In all unfavorable decisions, list findings that were favorable to the claimant, if any.]
 
Note:  If an eFolder exists, the claims processor will use a VA Form 21-0961 to obtain electronic signatures, using the same process described in M21-1, Part III, Subpart v, 1.A.3.e.
References:  For more information about
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