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M21-1, Part III, Subpart vi, Chapter 1, Section A – Compensation Service and Pension and Fiduciary (P&F) Service Guidance

Overview


In This Section

This section contains the following topics:
Topic
Topic Name
1
2
3
4

1.  General Information on Requesting Compensation Service and P&F Service Guidance


Introduction

This topic contains general information on requesting Compensation Service and P&F Service guidance, including

Change Date

February 19, 2019

III.vi.1.A.1.a.  Types of Guidance Available

It is important to understand the purpose of, and the differences between, each type of guidance that may be requested from Compensation Service and Pension and Fiduciary (P&F) Service (hereafter referred to as Central Office (CO), if the reference applies to both Compensation Service and P&F Service).
The table below describes the purpose of each type of guidance that may be requested from CO.
Type of Guidance
Purpose
Advisory Opinion
An advisory opinion provides regional offices (ROs) with consistent, reasonable guidance and advice for handling complex or unusual cases before a decision is made.
Administrative Review
An administrative review provides a binding directive to RO decision-makers.  They differ from advisory opinions in that ROs request them after having made a formal decision.
Administrative Determination on a Difference of Opinion
An administrative determination is required to change a prior decision if
  • the sole reason for the contemplated change is a difference of opinion, and/or
  • a difference of opinion arises during supervisory review of a rating decision or Decision Review Officer (DRO) decision.
Reference:  For more information on differences of opinion, see

III.vi.1.A.1.b.  Determining the Type of Guidance to Request

The table below describes the type of request to initiate based on the
  • timing of the request for guidance during the claims process, and
  • type of issue requiring resolution.

If guidance is needed …

Then …

Reference
prior to making a formal decision request an advisory opinion. See M21-1, Part III, Subpart vi, 1.A.2.
after making a formal decision that resolves any issue other than a difference of opinion request an administrative review. See M21-1, Part III, Subpart vi, 1.A.3.
after making a formal decision to resolve a difference of opinion regarding applicable regulations or other directives request an administrative determination on the difference of opinion under 38 CFR 3.105(b). See M21-1, Part III, Subpart vi, 1.A.4.

III.vi.1.A.1.c.  Requirements for Formal Requests for CO Guidance

All formal requests from ROs for CO guidance must
  • relate to an actual case and not be based on a hypothetical situation
  • have the concurrence of the Veterans Service Center Manager (VSCM), Pension Management Center Manager (PMCM), or their designee, and
  • be accompanied by the letter referenced in
Identify the basic issues that require resolution before initiating a formal request for guidance.  Many issues may be quickly resolved through informal contact with CO.  Informal contact may also be helpful in preparing a formal request.
Reference:  For more information on the types of individual cases eligible for CO guidance, see M21-1, Part III, Subpart vi, 1.A.1.d.

III.vi.1.A.1.d.  Types of Cases Eligible for CO Guidance

The types of individual cases eligible for CO guidance are limited to the following issues:
  • a matter of program policy or procedure
  • the applicability of
    • a provision in the regulations
    • the rating schedule, or
    • other CO directives, such advisory opinions and instructions contained in M21-1
  • the propriety of establishing service connection, other than a question involving the evaluation of evidence, or when rating schedule provisions are not adequate for evaluation (refer such cases to the Compensation Service Advisory and Court of Appeals for Veterans Claims Staff (211B) with a statement of the RO’s proposed action)
  • a proposed rating or authorization action involving a difference of opinion with a prior rating or other action based on the same set of facts (per 38 CFR 3.105(b)), and
  • a rating under 38 CFR 3.105(a) awarding monetary benefits for a retroactive period of more than five years.
Note:  Following a 2009 decision by the U.S. Court of Appeals for the Federal Circuit, ROs are no longer required to submit pending awards of benefits to CO for review and approval (prior to final award action) for cases involving
  • payments equal to or exceeding $250,000, or
  • an effective date that is eight or more years in the past.

III.vi.1.A.1.e.  Information That Letters Requesting Guidance From P&F Service Must Contain

The table below describes the information to include in specific sections of the letter that ROs must submit when requesting the following from P&F Service:
  • advisory opinion
  • administrative review, or
  • administrative determination on a difference of opinion under 38 CFR 3.105(b).
Section of the Letter
Content
Background Information
  • Pertinent service information, such as, date(s), branch(es), and places of service.
  • Relevant information about the claimant and the type of claim in question.
Facts
Facts pertinent to the case.
Discussion
Discussion of the facts as they relate to the laws, regulations, and procedures involved.
Questions at Issue
Clearly and concisely stated questions.  The requester should
  • ask a separate question for each issue
  • not combine multiple issues into one question, and
  • number the questions, if more than one exists.
Recommendation
VSCM or PMCM recommendation or comments on the presented questions.

III.vi.1.A.1.f.  Submitting a Request for Guidance to P&F Service

To request guidance from P&F Service,
Important:
  • The period behind Svc must be included when addressing the e-mail to P&F Service.
  • Before submitting a request for guidance to P&F Service, ensure all documents in the claims folder have been scanned (converted into an electronic format) and uploaded into the appropriate eFolder.
Reference:  For more information on shipping documents for scanning, see M21-1, Part III, Subpart ii, 1.F.

III.vi.1.A.1.g.  Submitting a Request for Guidance to Compensation Service 
The table below contains instructions for submitting a request for the following to Compensation Service:
  • advisory opinion
  • administrative review, or
  • administrative determination on a difference of opinion under 38 CFR 3.105(b).
Step
Action
1
Ensure all relevant documents have been uploaded into the corresponding eFolder.
2
Prepare the letter referenced in M21-1, Part III, Subpart vi, 1.A.1.h.
3
Follow the instructions in M21-1, Part III, Subpart v, 1.A.3.e, for obtaining the approval/signature of the VSCM/PMCM or designee, treating the letter referenced in the preceding step as the administrative decision referenced in M21-1, Part III, Subpart v, 1.A.3.e.
  • replace the Administrative Decision – Level 1 special issue with the Compensation Service Review – Opinion special issue, and
  • add the Compensation Service Case Review tracked item.
4
Is the corresponding end product (EP) subject to National Work Queue routing?
  • If yes, disregard the remaining step in this table.  (Routing of the EP to Compensation Service is automatic.)
  • If no, proceed to the next step.
5
Send an encrypted e-mail containing the following information toVAVBAWAS/CO/211 Policy Staff:
  • the Veteran’s name and claim number, and
  • the type of request.

III.vi.1.A.1.h. Format of Letter for Requesting Guidance From Compensation Service 
Follow the format of the letter below when preparing a letter to request guidance from Compensation Service.
DEPARTMENT OF VETERANS AFFAIRS
[RO name]
[RO address]
[current date]
Director                                                                          In Reply Refer To:
Compensation Service (211B)                                       [RO number]
Department of Veterans Affairs                                     [file number]
Central Office                                                                [Veteran’s name]
810 Vermont Ave. NW
Washington, DC 20420
SUBJECT:  [Identify the type of request:  advisory opinion, administrative decision, or administrative determination on a difference of opinion under 38 CFR 3.105.]
BACKGROUND INFORMATION AND REQUEST:  [Provide relevant information about the claimant and the type of claim at issue.  Provide pertinent service information, such as branch(es), date(s) and place(s) of service.]
DISCUSSION:  [Discuss the facts as they related to the laws, regulations and procedures involved.]
QUESTION AT ISSUE:  [Clearly and concisely state the question(s).  If there are multiple questions, do not combine them.  Instead, number each question.]
RECOMMENDATION: [Provide a recommendation and/or comments on the presented question(s).]

III.vi.1.A.1.i.  Handling an Apparent Conflict or Issue of General Interest

If a letter, advisory opinion, or other directive by a CO element, including a Board of Veterans’ Appeals (BVA) decision, conflicts with a prior decision, instruction, or guideline, or is of general interest to other ROs, then
  • forward a copy of the document(s) containing the conflicting information, or information of general interest to other ROs, to the Director of Compensation Service (21C) or the Director of P&F Service (21PF) (whichever service authored the directive), and
  • include a cover letter explaining how the information is in conflict or why it would be of general interest to other ROs.
Important:
  • Do not postpone action on a case affected by a CO directive in order to take the action described in the preceding paragraph.  Take both actions concurrently.
  • The procedure described in this block is not for application based on mere differences in the interpretation of the facts of a case.
To obtain clarification of a BVA decision, follow the instructions in the table below.
If the appellant has …
Then …
an eFolder only
e-mail a request for clarification to one of the individuals named in M21-1, Part I, 5.F.7.b.
Important:  In the body of the e-mail,
  • identify the specific matter that requires clarification, and
  • indicate that the appellant’s claims folder is available electronically.
a physical (paper) claims folder
temporarily transfer the claims folder to one of the individuals named in M21-1, Part I, 5.F.7.b with a cover letter that identifies the specific matter requiring clarification.

2.  Requesting an Advisory Opinion


Introduction

This topic contains information on requesting an advisory opinion, including

Change Date

September 22, 2014

III.vi.1.A.2.a.  When to Request an Advisory Opinion

Request an advisory opinion before making a formal decision on the issue in question.
Requesting an advisory opinion is appropriate if
  • doubts exist regarding the correct application of rating, authorization, or other principles or policies, and
  • a case involves complicated or obscure medical or legal issues.

III.vi.1.A.2.b.  Considering an Advisory Opinion When Deciding a Claim

While not directive in nature, consider an advisory opinion along with all other evidence of record, assigning it significant weight in the final adjudication of the claim.

3.  Requesting an Administrative Review


Introduction

This topic contains general information on requesting an administrative review, including

Change Date

February 19, 2019

III.vi.1.A.3.a.  When to Request an Administrative Review

Limit requests for administrative review to
  • situations involving policy or procedure of more than local importance, or
  • questions concerning the adequacy or applicability of regulations and other instructions to the field.
Important:  Do not request an administrative review merely to affirm a prior decision.

III.vi.1.A.3.b.  Who May Request an Administrative Review

A request for CO’s administrative review of an RO decision may come from any internal or non-Department of Veterans Affairs (VA) source, such as
  • service organizations
  • recognized attorneys or agents, and
  • other accredited representatives.
Reference:  For more information on handling non-VA requests for an administrative review, see M21-1, Part III, Subpart vi, 1.A.3.c.

III.vi.1.A.3.c.  Handling Non-VA Requests for an Administrative Review

Advise non-VA sources, such as those enumerated in M21-1, Part III, Subpart vi, 1.A.3.b, to address their requests for administrative review to the Director of the service with jurisdiction over the issue for which administrative review is requested.
If a non-VA source erroneously addresses a request to an RO,
  • forward it, with a brief cover letter, to the Director of the service with jurisdiction over the issue for which administrative review is requested, and
  • advise the requesting party of the referral.
Exception:  Local service organizations that have national representation mustrequest an administrative review through the organization’s national headquarters.

III.vi.1.A.3.d.  Rejection of a Request for an Administrative Review

CO may reject a request for an administrative review that
Reference:  For more information on when it is appropriate to submit a request for an administrative review, see M21-1, Part III, Subpart vi, 1.A.3.a.

III.vi.1.A.3.e.  Significance of an Administrative Review Decision

Administrative review decisions are directive in nature and binding on RO decision makers.

4.  Requesting an Administrative Determination on a Difference of Opinion Under 38 CFR 3.105(b)


Introduction

This topic contains information on requesting an administrative determination on a difference of opinion under 38 CFR 3.105(b), including

Change Date

February 19, 2019

III.vi.1.A.4.a.  When to Request an Administrative Determination on a Difference of Opinion

Request an administrative determination on a difference of opinion under 38 CFR 3.105(b) to revise a prior decision when
  • the sole reason for the contemplated change is a difference of opinion, or
  • a difference of opinion arises during supervisory review of a rating or DRO decision.
Note:  If a clear and unmistakable error (CUE) was made in reaching the prior decision, the provisions of 38 CFR 3.105(a) apply.  Correct it as explained in M21-1, Part III, Subpart iv, 2.B.4 without referral to CO, unless the action awards monetary benefits for a retroactive period of five or more years.

III.vi.1.A.4.b.  Overview of Supervisory Review

Supervisory review of decisions RO personnel make is one of the methods VSCMs and PMCMs may use to
  • monitor the quality of RO decisions, and
  • ensure that RO personnel clearly understand and uniformly apply laws, regulations, and other directives.
The interpretation of laws, regulations, and general policy by a VSCM or PMCM is binding and controlling on all authorization actions, subject to decision review pursuit by the claimant, except for substantive decisions on individual cases by the rating activity or a DRO.
Important:  Whenever possible, VSCMs and PMCMs must bring errors and deficiencies they identify during supervisory review to the attention of the person responsible for them.  That person must then take whatever corrective action is necessary.

III.vi.1.A.4.c.  Handling a Difference of Opinion

A VSCM or PMCM cannot direct a change to a substantive decision of the rating activity or a DRO solely on the basis of a difference of opinion.
The table below describes the stages of the process that a VSCM, PMCM, the rating activity, and/or DRO must follow to resolve a difference of opinion.
Stage
Description
1
If the VSCM or PMCM disagrees with a final rating activity or DRO decision, then he/she
  • explains to the Rating Veterans Service Representative (RVSR) or DRO who made the decision the reason for the disagreement, and
  • requests his/her review of the decision.
2
The action(s) described in the table below take place after the RVSR or DRO reviews the decision.
If …
Then the VSCM or PMCM …
  • the RVSR or DROagrees with the VSCM’s or PMCM’s opinion, and
  • no CUE is involved
must request an administrative determination under 38 CFR 3.105(b) to change the decision.
the RVSR or DRO disagreeswith the VSCM’s or PMCM’s opinion
may request an administrative review.
Note:  DROs do not have authority to request administrative review based on a difference of opinion.  A DRO may recommend that the VSCM or PMCM submit a case to the Director of Compensation Service or the Director of P&F Service.  However, the VSCM’s or PMCM’s decision is controlling, and the DRO must abide by it.
References:  For more information on

III.vi.1.A.4.d.  Decision Review Rights and Notification Requirements

A claimant has the right to seek further review of any decision resulting from a review under 38 CFR 3.105(b).
Regardless of the outcome of the case,
  • notify the claimant that the review was conducted
  • explain the reasons for the decision, and
  • furnish review rights.
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