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Updated Jun 24, 2024

In this Section

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

1.  NOD Considerations
 

Introduction

  
This topic contains information about Notices of Disagreement (NODs), including

Change Date

   May 27, 2022

7.B.1.a.         NOD Processing and the Role of the Appeals Team

  
Initial review of potential NODs, and NOD establishment procedures are detailed in M21-5, Chapter 6, Section B.
 
Based upon locally-established workload management procedures, appeals team members are responsible for the following steps when processing NODs.
 

Stage

Description
1
Identify and review newly established NODs.
2
Request clarification of any appellate issues, when required.
3
Complete the ISSUES tab in the Veterans Appeals Control and Locator System (VACOLS) record to accurately reflect all valid NOD issues.
4
Develop the NOD, when required, including completing any requested telephone contact or scheduling a formal hearing or informal conference, when requested.
5
Complete a decision on the NOD and send notice to the appellant and their representative, if any.
 

7.B.1.b. Requesting Clarification from Claimants

  
If it is uncertain whether a communication from the claimant is an NOD, request clarification from the claimant.
 
Important:  If the Department of Veterans Affairs (VA) requests clarification of an unclear NOD and there are less than 60 days remaining in the appeal period, provide the claimant 60 days from the date of request for clarification to respond.
 
References:  For more information on requesting clarification from a claimant, see

7.B.1.c.  Sympathetic Review of Appeal Submissions

  
Veterans Benefits Administration (VBA) policy is to consider all claims sympathetically or liberally by generously construing the evidence and resolving any ambiguities in the appellant’s favor.
 
VA employees should liberally evaluate all evidence and statements from appellants to ensure all appealed issues are addressed.  This policy does not require reading into the record an argument that has not been made. 
 
Important:  Effective March 24, 2015, and for claim decisions issued prior to February 19, 2019, VA will only accept issues listed on a timely VA Form 21-0958, Notice of Disagreement, if required, as part of the appeal submission for compensation.  Any additional evidence or statements suggesting appealed issues will be considered a request for application for an NOD.
 
Exception:  There is no standard form requirement for an NOD which contests a decision regarding a claimant’s entitlement to pension, Dependency and Indemnity Compensation (DIC), or accrued benefits.   
 
Note: Under the Appeals Modernization Act, the NOD form has changed to VA Form 10182, Notice of Disagreement, for any benefit decision made on or after February 19, 2019, which the claimant would like reviewed directly by the Board of Veterans’ Appeals (Board).
 
VBA will accept the legacy appeal form, VA Form 21-0958, for VBA decisions made prior to February 19, 2019 only if postmarked on, or prior to, February 18, 2020, unless an extension has been granted under 38 CFR 3.109 and M21-5 Chapter 7, Section, B.1.d.
 
In cases where there is no postmark, VBA will presume that the postmark date is five days prior to the date VA received the NOD (excluding Saturdays, Sundays, and legal holidays). Therefore, unless an extension has been granted under 38 CFR 3.109 and M21-5, Chapter 7, Section B.1.d, the latest that VBA will accept a VA Form 21-0958 NOD is February 25, 2020.
 
For any VA Form 21-0958s received after that date, please follow the guidance found under M21-5 Chapter 6, Section B.
 
Important: The Federal Circuit, in Shea v. Wilkie, 926 F.3d 1362 (2019), held that under certain circumstances, medical records should be interpreted as informal claims for benefits. The table below outlines the criteria under which this ruling would apply.
 
If … Then …
  • the pending appeal includes an NOD received prior to March 24, 2015, and
  • the claimant has referred to specific medical records in communication with VA, with a reasonable implication of a claim for benefits related to disabilities listed in these records, and
  • those records contain a reasonably ascertainable diagnosis of a disability

the claimant has raised an informal claim for disability for that condition under 38 CFR 3.155(a)

If the issue is … Then …
previously unadjudicated, or the informal claim not considered defer the issue for appropriate EP establishment
part of a pending appeal consider Shea criteria when reviewing for development actions and effective dates

 
  • the pending appeal does not include an NOD received prior to March 24, 2015, or
  • the claimant has not referred to specific medical records in communication with VA, or
  • the specific records referenced by the Veteran do not contain a reasonably ascertainable diagnosis of a disability
 an informal claim has NOT been raised and no further action related to Shea is required.
 
Note:  In Shea, the Federal Circuit noted that general, non-specific, or non-concrete references to records would not be sufficient under this standard to raise an informal claim for benefits. The holding in Shea is limited by the factual circumstances underlying its analysis, and VA should only apply the decision to cases with similar factual scenarios.
 
References:  For more information on

7.B.1.d.  Handling a Time Limit Extension Request

  
Except in the case of simultaneously contested claims, a claimant, or their representative, must file an NOD within one year from the date of the notification letter of a VBA decision.  A claimant may request an extension of the time limit for filing an NOD.  When an extension is requested, provide the claimant with a decision on the request.  If denying the request, include appeal rights with the decision notice.  For any disagreements of decisions made on or after February 19, 2019, on VA Form 10182, claimants must submit requests for extensions directly to the Board.
 
Important:  If the claimant requests an extension after the expiration of the time limit for filing an NOD, they must
  • submit a completed NOD simultaneously with the request for extension, and
  • demonstrate good cause.
Notes:
  • A claimant may request an extension before or after the expiration of the NOD period.
  • An extension may be granted when good cause is shown.
  • A claimant may appeal to the Board a denial to extend the time limit to disagree with a legacy appeal.  For disagreements under AMA submitted directly to the Board, requests for extensions to submit NODs must be likewise made directly to the Board.  The options to contest a Board denial include appealing to the Court of Appeals for Veterans Claims (CAVC) or filing a supplemental claim along with new and relevant evidence.
Reference:  For more information NOD time limits, see 38 CFR 19.52(a).

 

2.  Processing an NOD

 

Introduction

  
This topic contains information on processing an NOD, including

Change Date

  
June 25, 2024

7.B.2.a.  Completing an NOD VACOLS Record

  
When an NOD is first received, the Intake Processing Center will ensure it is valid and create a “placeholder” VACOLS record and an end product (EP) 170.  Thereafter, appeals team personnel are required to complete an initial review of newly established NODs, clarify issues, and ensure the completeness of the VACOLS record.
 
Once an NOD is identified by the appeals team, follow the steps in the table below to complete an NOD VACOLS record.
 
Step
Action
1
Review the information input in the NOD VACOLS record.
2
If it is unclear as to whether or not a letter from the claimant is an NOD for a particular issue, follow the procedures for clarification of issues in M21-5, Chapter 7, Section B.3.b.
3
Update the placeholder issue input upon establishment of the NOD record.  Navigate to the ISSUES TAB and add the appropriate issues in the VACOLS record.
 
On the ADD ISSUE screen, add the appealed issue(s) and relevant details by populating the relevant fields, including:
  • PROGRAM AREA
  • ISSUE
  • SUBSIDIARY QUESTIONS OR OTHER TRACKING IDENTIFIERS, and
  • NOTES.

Example:

image of the Add Issue screen in VACOLS

Note:  Select ADD for each contention until all issues have been added, then select EXIT.
 

7.B.2.b.        Requests for Telephone Contact

  
VA Form 21-0958 provides appellants an opportunity to request telephone contact from a regional office (RO) employee.  The Decision Review Operations Center Manager (DROCM), Veteran Service Center Manager (VSCM), or Pension Management Center Manager (PMCM) has authority to designate the individual(s) responsible for conducting the telephone contact.
 
Note:  The purpose of the telephone contact is to
  • confirm the issues with which the appellant disagrees, and
  • explain the appeals process.

7.B.2.c.  Documenting Telephone Contact

  
When an appellant requests telephone contact from an RO employee on the VA Form 21-0958, the designated employee will make at least two attempts to contact the appellant at the time they requested.
  • If contact cannot be made, document the negative contact on VA Form 27-0820, Report of General Information.  Provide a copy of the form to the appellant’s accredited representative and associate it with the claims folder.
  • If contact is made, document it on VA Form 27-0820.  Provide a copy of this documentation to the appellant’s accredited representative and associate it with the claims folder.
Note:  The appeals team representative reserves the right to not call the appellant when circumstances indicate that such a call would not prove to be productive (due to a service-connected condition, for example).  In such cases, the appeals team coach will be notified, as well as the appellant’s accredited representative.
 
Reference:  For a sample phone script, see M21-5, Chapter 7, Section B.5.

7.B.2.d.  Receiving an NOD with a Request for a Hearing

  
If a hearing request is received with an NOD
  • schedule and hold the hearing, and then
  • send the statement of the case (SOC), if the appeal remains denied.
Note:  This policy applies to both the Decision Review Officer (DRO) and the traditional appellate review processes.
 
References:  For more information on

7.B.2.e.  Handling Disagreements Regarding Inadequate or Not Timely Filed NODs

  
If the claimant disagrees with a determination that an NOD was not adequate or timely filed, send him/her an SOC because that determination may be appealed.
 
References:  For more information on

7.B.2.f.  New Issues Raised on an NOD

  
If the appellant raises issues on the NOD that have not yet been adjudicated, do not delay sending an SOC covering those issues that were previously decided unless there is outstanding evidence related to an SOC issue or issue within the scope of the appeal.
 
Important: 
  • Develop and decide the new issue(s) raised on an NOD received prior to March 24, 2015.
  • Do not accept non-appeal issues raised on an NOD received on or after March 24, 2015, as a new claim.  The correspondence is a request for application pertaining to the non-appeal issues except if the new issue is within the scope of the issue on appeal.  Issues within the scope of the appeal issue do not require a separate claim.
References:  For more information on

7.B.2.g.  Example of New Issue Raised on an NOD Prior to March 24, 2015

  
Situation:  Prior to March 24, 2015, VBA receives an NOD listing the issues of entitlement to increased evaluation for a knee condition and service connection (SC) for a back condition.  The knee condition was recently decided, and the appeal is valid.  Entitlement to SC for a back condition has not been previously claimed or decided.  No new evidence is identified on the NOD. 
 
Result:  Proceed with the appeal of entitlement to increased evaluation for the knee condition.  Since the NOD was received prior to March 24, 2015, accept the correspondence as a claim for SC for the back condition and develop and decide the back claim.  Do not delay the appeal decision on the knee for a rating decision on the back, or vice versa.

7.B.2.h.   Example of New Issue Not Within the Scope of an Appeal Raised on an NOD

  
Situation:  After March 24, 2015, VBA receives an NOD on VA Form 21-0958 listing the issues of entitlement to increased evaluation for a knee condition and SC for a back condition.  The knee condition was recently decided, and the appeal is valid.  Entitlement to SC for a back condition has not been previously claimed or decided.  No new evidence is identified on the NOD. 
 
Result:  Proceed with the appeal of entitlement to increased evaluation for the knee condition.  Since the NOD was received after March 24, 2015, accept the correspondence as a request for application for the back condition.  Do not delay sending the SOC for the appealed knee issue.

7.B.2.i.   Example of New Issue Within the Scope of an Appeal Raised on an NOD

  
Situation:  After March 24, 2015, VBA receives an NOD on VA Form 21-0958 listing the issue of entitlement to service connection of erectile dysfunction as secondary to service-connected prostate cancer.  On the NOD, the Veteran notes a diagnosis of erectile dysfunction.  Treatment records accompanying the NOD show that the Veteran has been diagnosed with erectile dysfunction.  The erectile dysfunction was recently decided due to no diagnosis, and so the appeal is valid. 
 
Result:  After ensuring all appropriate development is completed, the decision maker issues a rating decision establishing entitlement to service connection for erectile dysfunction and entitlement to special monthly compensation (SMC) K, loss of use of a creative organ. 
 
Rationale:  The issue of SMC K is considered within the scope of the appealed evaluation of service connection for erectile dysfunction because the evidence establishes the relationship between the two issues.  Therefore, a separate claim for SMC K is not required.
 

3.  Multiple-Issue NODs

 

Introduction

  
This topic contains information on multiple-issue NODs, including

Change Date

  
June 25, 2024

7.B.3.a.  Multiple-Issue NODs

  
An NOD may express disagreement with a decision that contains multiple issues, but may not be clear as to which issue is being appealed.
 
Note:  A single-issue NOD that is complete does not require clarification.
 
Reference:  For more information on identifying an incomplete NOD, see M21-5, Chapter 6, Section B.1.f.

7.B.3.b.  Clarifying Multiple-Issue NODs

  

Follow the steps in the table below when an NOD contains multiple issues, and at least one of the issues requires clarification.

Step

Action
1
Can you identify one or more issues that are being appealed?
  • If yes, but other issues require clarification
    • inform the appellant of the issues VBA accepts as an appeal
    • track the issue(s) identified as being appealed as an NOD in VACOLS
    • go to M21-5, Chapter 7, Section B.4 for action on the issues identified as being appealed, and
    • go to Step 2 for action on the issue(s) requiring clarification.
  • If no, go to Step 2.
2
  • Contact the claimant by telephone or in writing using the Clarification of NOD letter from the Letter Creator application, or equivalent letter from Personal Computer-Generated Letters (PCGL), to request clarification of which issue(s) is being appealed
  • notify the claimant that if they fail to respond within the remainder of the appeal period, the earlier, unclear communication will not be considered an NOD, and
  • go to Step 3.
Important:  Clarification of any appeals that required a VA Form 21-0958 to initiate must also be submitted on a VA Form 21-0958 if information is not received over the phone.
 
Notes:
  • If none of the issues listed on the NOD require clarification, explain in the letter that all issues are accepted and considered to be under appeal.
  • If the appeal period is expired, or has less than 60 days remaining, provide the claimant 60 days to respond to the request for clarification in order to keep the appeal viable. Explain this 60-day time limit in your oral or written contact with the appellant.
  • Document any telephone conversation with the claimant on VA Form 27-0820.
3
Did the claimant send clarification within the given time limit?
  • If yes,
  • If no, take no further action.
Note:  If the claimant files a response past the time limit, follow the procedures in M21-5, Chapter 6, Section B.1.j.
 
Reference:  For more information on the definition of an appellant, see M21-5, Chapter 7, Section A.1.b.
 
References:  For more information on

 

4.  Reviewing an NOD for Further Development

 

Introduction

  

This topic contains information on reviewing an NOD for further development, including

Change Date

  

May 27, 2022

7.B.4.a.  Who Reviews the NOD

  
When a timely NOD is received, the Veterans Service Representative, Rating Veterans Service Representative, or DRO, as appropriate, reviews the appeal to determine if
  • the prior decision was correct, or if the prior decision contains a clear and unmistakeable error (CUE), and
  • any development or other action is needed.

7.B.4.b.         VA’s Duty to Assist the Appellant in Obtaining Necessary Evidence

  
As with every substantially complete claim, VA has a duty to assist the appellant in obtaining the necessary evidence to substantiate their claim. 
 
Reference:  For more information on VA’s duty to assist with requesting records, see M21-1, Part III, Subpart i, 2.

7.B.4.c.  Reviewing an NOD

  
Follow the steps in the table below to review an NOD.
 

Step

Action

1
Review the entire record, including the appellant’s statement on the NOD, to determine if additional development is needed.
2
Is additional development action required?
3
Was the decision a clear and unmistakable error (CUE)?
  • If yes, take corrective action.
  • If no, go to Step 4.
Reference:  For more information on CUEs, see M21-1, Part X, Subpart ii, 5.A.1.a.
4
Take any necessary action, including
  • submission to the DRO with a request for the DRO review process, or
  • submission to the VSCM or PMCM, to request an advisory opinion.
Reference:  For more information on requesting an advisory opinion, see M21-1, Part X, Subpart v, 1.A.2.a.
5
Send the claimant a decision on the NOD, either through a grant or SOC.
 
Important: Ensure that the notice of any grant sent to the appellant provides review rights, when applicable.
 
References:  For more information on
 

7.B.4.d.  Developing an NOD

  
Follow the steps in the table below to develop an NOD for further evidence. 
 
Step
Action
1
  • Request evidence, performing follow-up requests as appropriate.
  • Go to Step 2.
2
Was the evidence received within the given time limit?
  • If yes, go to Step 3.
  • If no,
    • take no further development action
    • send an SOC to the appellant and their representative on the basis of the evidence of record explaining which requested evidence was not received
    • clear the appropriate EP, and
    • allow the appellant to perfect the appeal.
3
Did the evidence result in a complete grant of the benefits sought or did the appellant or their representative withdraw the NOD?
  • If yes, close out any VACOLS controls.
  • If no,
    • issue an SOC
    • update VACOLS
    • clear the appropriate EP, and
    • allow the appellant to perfect the appeal.
Note:  Do not prepare an SOC until development is completed or the time limit for submission of evidence has expired.
 
References:  For more information on
                                                     

5. Exhibit: Telephone Script, General Appeal Response

 

Change Date

   May 27, 2022

7.B.5.a.  Sample Telephone Script

  
A sample script for telephone contact with appellants is shown below.
 
Good morning/afternoon. May I speak with [Veteran’s name]?
 
My name is [your name], a [your title] at the [location of regional office] Regional Office. I am calling you today regarding your Notice of Disagreement we received on [date].
 
Verification Steps:
 
To protect your privacy, I need to verify the following information:
 
[Verify identity of appellant with questions shown in M21-1, Part III, Subpart i, 2.D.1.f]
 
Thank you for providing your information.
 
On your Notice of Disagreement, you indicated you wanted someone to contact you about your appeal.  First, please let me verify the issue(s) you disagree with.  [Verify the issue(s) on the NOD form].  [Discussion between VBA employee and appellant].
 
I will document our conversation and include it with your claims folder.  We will also provide a copy of this documentation to your appointed representative, [insert name of representative, if applicable].
 
CLOSING – UNREPRESENTED VETERAN
 
Do you have any additional evidence you would like to submit regarding this/these issue(s)?  If so, please submit the evidence to our office within 30 days.  Can I answer any questions for you related to the issue(s) addressed in this appeal?  Thank you for your time and service to our country.
 
CLOSING – REPRESENTED VETERAN
 
Do you have any additional evidence you would like to submit regarding this/these issue(s)?  If so, please submit additional evidence through your appointed representative, [name of representative], or directly to our office within 30 days.  If you don’t have any additional questions for us to answer at this time, we will move forward with processing your appeal.  Let me also encourage you to communicate with your appointed representative, [name of representative], if you have any questions or concerns.  Thank you for your time and service to our country.