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Updated Sep 19, 2024

In This Section

  
This section contains the following topics:
 
 
 
1.  Substantive Appeal
 
  
 

Introduction

  
This topic contains information on substantive appeals, including

Change Date

  
May 27, 2022

7.E.1.a.  Purpose of a Substantive Appeal

  
An appellant and/or representative must file a substantive appeal within the applicable time period in order to perfect or complete the appeal.
 
Notes: 
  • Upon receipt of a substantive appeal, regional offices (ROs) will establish an end product (EP) and update the Veterans Appeals Control and Locator System (VACOLS) record.
  • When the Board of Veterans Appeals (Board) assumes jurisdiction of the appeal, VACOLS will assign a docket number to the case.
  • The Veterans Appeals Improvement and Modernization Act of 2017, Public Law 115-55, 131 Stat. 1105 (AMA) transferred the jurisdiction of all new notices of disagreements to the Board, effective February 19, 2019.  The Board and VBA no longer share jurisdiction. This section pertains to legacy appeals only, unless otherwise specified.
References:  For more information on

7.E.1.b.  Overview of the Substantive Appeal Process

  
Initial review of incoming substantive appeals and initial handling procedures are detailed in M21-5, Chapter 6, Section B.3.

 
Based upon locally established workload management procedures, appeals team members are responsible for the following steps in the substantive appeals process.
 

Step

Action

1
Ensure VACOLS reflects the appropriate issues by following the table below.
 

If…

Then follow the procedures in…

issues covered by the substantive appeal are not clear as described in M21-5, Chapter 7, Section E.1.c

M21-5, Chapter 7, Section E.1.d to clarify the issues.

any issues were withdrawn by the appellant

M21-5, Chapter 7, Section A.3.c to process the withdrawal.
 

2
Take any required action, including
  • development for additional evidence
  • scheduling and conducting a local hearing
  • issuing a decision, and
  • completing the certification process. 
Reference:  For more information on
 

7.E.1.c.  When to Clarify Substantive Appeal Issues

  
Request clarification of a substantive appeal when a statement of the case (SOC) or supplemental statement of the case (SSOC) addresses multiple issues and the substantive appeal does not
  • indicate that the appeal is being perfected as to all of the issues, or
  • specifically identify the issues being appealed. 
Follow the table below when a substantive appeal is timely received in response to an SOC or SSOC that addressed multiple issues.
 

If the appellant…

Then…

does not indicate which issues are being appealed

request clarification as instructed in M21-5, Chapter 7, Section E.1.d.
  • consider the substantive appeal to be for all issues covered in the SOC or SSOC, and
  • do not request clarification.
  • checks Box 8a on VA Form 9, and
  • lists specific issues
  • consider the substantive appeal to be for only the issues listed, and
  • do not request clarification.
 
References:  For more information on

7.E.1.d.  Procedures for Clarifying a Substantive Appeal Involving Multiple Issues

  
The table below describes how to process VA Form 9 and/or a substantive appeal when the
  • SOC/SSOC contains multiple issues, and
  • appellant does not indicate which issues are being appealed.
Step
Action
1
To clarify which issues are being appealed, the development or appeals development activity
  • contacts the appellant and/or representative by telephone to obtain clarification
  • documents any telephone contact with the appellant and/or representative on VA Form 27-0820, Report of General Information, for association with the claims folder, or
  • if telephone contact is unsuccessful, sends the appellant a letter requesting to clarify the issues under appeal within 30 days from the date of the letter. 
Note:  Extend the time limit to file the substantive appeal through the end of the 30-day response period if the time limit to file the substantive appeal
  • has already expired, or
  • will expire during that 30-day period.
Reference:  For more information on notification requirements for representatives following documentation of telephone contact on VA Form 27-0820, see M27-1, Part I, 3.1.e.
2
If clarification is not received within 30 days, the development or appeals activity sends the appellant a notification letter that
 

7.E.1.e.  Processing a Time Limit Extension Request

  
An appellant may request an extension of the time limit for filing a substantive appeal.  In this situation, the time limit may be extended if an appellant shows good cause.
 
38 CFR 19.53 provides that a request to extend the 60-day time limit to file a substantive appeal, or to respond to an SOC/SSOC when such a request is required, must be made in writing before the time limit has elapsed.
 
38 CFR 3.109(b) provides that a request to extend the one-year time limit to file a substantive appeal may be submitted after the time limit has elapsed, but only if the appellant has completed, or is in the process of completing, the action for which the extension is requested.
 
When an extension is requested, provide the claimant with a decision on the request.  Associate a copy of the decision notice with the claims folder.  If denying the request, include appeal rights with the decision notice.
 
Notes:
  • 38 CFR 20.203 and 38 CFR 3.109(b) do not define “good cause.”
  • When determining whether or not to extend the time limit for filing a substantive appeal in the case of a contested claim, take the interests of the other parties involved into consideration. 
Reference:  For more information on requesting an extension of the time limit to file a substantive appeal, see Morgan v. Principi, 16 Vet.App. 20 (2002).
 
 

2.  Processing a Substantive Appeal

 
 

Introduction

  
This topic contains information on processing a substantive appeal, including

Change Date

  
 July 9, 2024

7.E.2.a.  Processing Additional Evidence Submitted With or After a Substantive Appeal Is Filed

  
Use the table below to determine how to process an appeal when the appellant or  representative submits additional evidence with or after the substantive appeal is filed.
 
Important: 
  • These procedures apply to substantive appeals filed on or after February 2, 2013.
  • Conduct at least a cursory review of evidence received in association with the substantive appeal to determine whether the evidence, on its face, requires development to prevent unnecessary remand.
 
If…
Then…
the evidence
  • does not require further development, and
  • there is no written request for RO review of the evidence
  • associate the evidence with the claims folder, and
  • immediately
    • certify the appeal, and
    • transfer jurisdiction to the Board. 
Important:  Do not complete a SSOC based on the additional evidence.
the evidence
  • does not require further development
  • there is no written request for RO review of the evidence, and
  • the RO has erroneously undertaken development for additional evidence
  • complete all necessary development actions using current procedures, and
  • issue a new decision and notify the appellant using current procedures (rating decision and/or SSOC). 
  • the evidence indicates on its face that further development is necessary, and
  • there is no written request for agency of original jurisdiction (AOJ) review
 
Example:  The appellant submits a completed VA Form 21-4142, Authorization to Disclose Information to the Department of Veterans Affairs, identifying relevant private medical evidence not of record or identifying relevant treatment records from a Department of Veterans Affairs (VA) medical facility.
  • complete all necessary development actions using current procedures, and
  • issue a new decision and notify the appellant using current procedures (rating decision and/or SSOC).  
Important:  If AOJ review has not been requested in writing, the 30-day response time to an SSOC does not preclude VA from
  • certifying the appeal, and
  • immediately transferring jurisdiction to the Board.
the appellant or representative submits a written request for AOJ review of the evidence in one or more issues on appeal
 
  • review the evidence and complete all necessary development actions using current procedures, and
  • issue a new decision and notify the claimant using current procedures (rating and/or SSOC). 
Important:  If AOJ review has been requested in writing, VA must wait 30 days for the claimant to respond to the SSOC before initiating the appeal certification process.
 
Important:  Once the Board assumes jurisdiction over an appeal, it is responsible for reviewing any additional evidence submitted by the appellant or representative.
 
References:  For more information on

7.E.2.b.  Processing an SOC/SSOC Not Sent to the Correct Address

  
If an SOC or SSOC was sent to the incorrect address
  • ensure the appellant’s address is correct in all systems
  • resend the SOC or SSOC to the correct address, and
  • enter the date the SOC or SSOC was sent to the correct address into VACOLS in the SOC or SSOCs field, as appropriate. 
References:  For more information on

7.E.2.c.  Appellant’s Right to a Hearing

  
An appellant, or representative, may request a hearing
  • locally, before a Decision Review Officer (DRO) at the station of jurisdiction (SOJ)
  • before the traveling section of the Board
  • at the Board in Washington, DC, or
  • via a videoconference between the RO and the Board in Washington, DC. 
Note:  VA cannot reimburse an appellant for any expenses incurred to attend a hearing, such as travel costs.
 
References:  For more information on

7.E.2.d.  Request for RO Hearings

  
If it appears VA Form 9 has been altered in an attempt to request a hearing at the RO, write or call the appellant to clarify whether the RO hearing is requested
  • in addition to the Board hearing, or
  • in place of the Board hearing. 
Note:  Document the results of any telephone conversation on a VA Form 27-0820.

7.E.2.e.  Request for Medical Examinations

  
Do not
  • request medical examinations solely because an appeal is pending, or
  • defer action on an appeal pending the completion of any scheduled medical examination unless the examination is
    • related to the issue under appeal, or
    • necessary to properly decide the claim.
 
 
 3.  Handling New Issues Raised on a Substantive Appeal
 
 

Introduction

  
This topic contains information about handling new issues raised on a substantive appeal, including

Change Date

  
July 9, 2024

7.E.3.a.  Determining When to Accept New Issues Raised on a Substantive Appeal

  
The table below describes when to accept claim or appeal issues raised on a substantive appeal. 
 
Important:  Do not add a new issue raised on a substantive appeal to a VACOLS record with the exception of intertwined individual unemployability as described in M21-1, Part VIII, Subpart iv, 3.C.3.b.
 

Type of Issue

Date Substantive Appeal Received

Action Required

new appeal or claim

before March 24, 2015

develop and decide the issue.

new appeal issue not raised on the prescribed form

on or after March 24, 2015

consider the correspondence or evidence a request for notice of disagreement (NOD) and follow the procedures described in M21-5, Chapter 7, Section B.1.c.

new issue 

  • not raised on the prescribed form, and
  • not within the scope of the issue on appeal

on or after March 24, 2015

consider the correspondence or evidence a request for application and follow the procedures described in M21-1, Part II, Subpart iii, 1.A.16.a.

new issue 

  • not raised on a prescribed claim form, but
  • considered within the scope of the issue on appeal

on or after March 24, 2015
add special issue “Appeal Issue Intertwined,” develop and decide the issue under the pending appeal EP.
 
Note:  Issue a decision for the within scope issue only when it can be favorably decided.
 
References:  For more information on

7.E.3.b.  Example of New Issue Within Scope of Substantive Appeal

  
Situation:  A Veteran timely files a substantive appeal after the RO issued an SOC for the evaluation of his service-connected (SC) degenerative disc disease.  On his substantive appeal, the Veteran states he has neuropathy in his left leg, which has been treated at the VA Medical Center. 
 
Result:  The RO updates VACOLS with the date of the substantive appeal for the back and establishes an appeal EP.  The appeals activity obtains the relevant VA records, which establish the diagnosis of left leg neuropathy and are sufficient to establish the level of disability.  The decision maker completes a rating decision awarding left leg neuropathy and issues an appeal decision on the back evaluation based on the new relevant VA records.
 
Rationale:  As stated in 38 CFR 3.155(d)(2), VA will consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition.  As neurological conditions are complications contemplated in the evaluation criteria for the spine disability, the neuropathy is within scope of the appeal for an increased evaluation for the SC back disability.

7.E.3.c.  Processing Inextricably Intertwined Issues on a Substantive Appeal

  
When a new appeal or claim is filed that is inextricably intertwined with the issues on a substantive appeal as defined in M21-5, Chapter 7, Section A.1.g, do not certify the substantive appeal until the inextricably intertwined claim/appeal has been decided.
 
If a valid claim or appeal issue is raised with or after receipt of a substantive appeal, use the table below to determine how to handle the new issue(s).
 

If the issue(s) is…

Then…

a new NOD inextricably intertwined with the issue(s) on a substantive appeal

do not send the case to the Board until

  • the appeal of the new issue is perfected or completed, or
  • the appellant fails to respond to the SOC/SSOC on the new issue within 60 days or the remainder of the one-year appeal period.

Note:  If the appellant does not perfect the appeal relating to the new issue, send the case to the Board once the appellate time limits for the new issue have elapsed.
a new NOD not inextricably intertwined with the issue(s) on a substantive appeal
certify and transfer jurisdiction of the appeal to the Board regardless of whether or not the appellant files a substantive appeal regarding the new issue.
 
Important:  If a determination is made that the issues are not inextricably intertwined, but the appellant alleges the issues are inextricably intertwined, any decision rendered on the new issue(s) should include a discussion of this determination.
 
Reference:  For more information on certification and transfer of the appeal, see M21-5, Chapter 7, Section F.
a non-appeal claim submitted on a standard claim form inextricably intertwined with the issue(s) on a substantive appeal
do not certify the appeal until the following is completed:
  • establish claim with special issue “Appeal Issue Intertwined”
  • complete any necessary development actions on the newly raised issue
  • make a decision once all development is complete
  • send the appellant
    • VA Form 21-0958, if VA decided the non-appeal compensation claim before February 19, 2019.

a non-appeal claim submitted on a standard claim form not inextricably intertwined with the issue(s) on a substantive appeal
  • continue processing the appeal
  • complete any necessary development actions on the newly raised issue
  • make a decision once all development is complete, and
  • send the appellant
    • VA Form 20-0998, and
    • VA Form 21-0958, if VA decided the non-appeal compensation claim before February 19, 2019.
 
References:  For more information on

7.E.3.d.  Example of Processing Inextricably Intertwined Issues

  
Situation:  The appeals activity reviews a substantive appeal for service connection (SC) of erectile disorder for possible certification and notes a new claim was filed by the Veteran for SC of prostate cancer.  The RO has not issued a decision on the new claim.
 
Result:  The appeals activity defers certification procedures pending the outcome of the new claim for prostate cancer.
 
Rationale:  The outcome of the appeal is so closely tied to the outcome of the newly raised issue of prostate cancer, that the appeal cannot be referred for a final decision by the Board until the new claim is decided.