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Updated Jul 22, 2024

In This Section

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

 
 

1.  Claims Received With Folders at the U.S. Court of Appeals for Veterans Claims (CAVC)

 
 

Introduction

  
This topic contains information on claims received while the claims folder awaits processing by the Court of Appeals for Veterans Center (CAVC), including

Change Date

  
July 23, 2024

7.J.1.a.  Avoidance of Undue Delay

  
Despite the fact that an individual’s appeal is before the Court of Appeals for Veterans Claims (CAVC), VA must place any newly received, unrelated claim under control and process it as quickly as possible.
 
References:  For more information on

7.J.1.b.  Determining Issues Under Appeal

  
If there is uncertainty about whether the claim relates to the issue under appeal, call the Office of the General Counsel (OGC), CAVC Litigation Staff, at (202) 632-7143.

7.J.1.c.  The Process of the CAVC Litigation Staff for Obtaining and Returning a Claims Folder from the Regional Office of Jurisdiction (ROJ)

  
The table below describes the process that Litigation Staff follows to obtain and return the claims folder from the regional office of jurisdiction (ROJ) when an appeal to CAVC is filed.
 
 
Step
Description
1
CAVC issues an order directing the Litigation Staff to provide a copy of the claims folder to the appellant within 60 days.
2
The Litigation Staff sends an e-mail request for the claims folder to the Decision Review Operations Center in Washington, DC (DROC DC).
3
DROC DC coordinates with the regional office (RO), Board of Veterans’ Appeals (Board), or Veterans Health Administration (VHA) facility, as appropriate, to promptly transfer the claims folder to the Litigation Staff.
4
  • If a paper claims folder exists, the Litigation Staff ships it to a scanning vendor, who
    • scans the entire folder, and
    • returns an electronic copy. 
  • If an electronic claims folder (e-folder) exists, the Litigation Staff will obtain copies of the records directly from the Veterans Benefits Management System (VBMS) and/or Legacy Content Manager (LCM).
Note:  In most cases, the Litigation Staff receives the claims folder back from the scanning vendor within 30 days after scanning is complete.
5
The Litigation Staff promptly returns the claims folder to the ROJ, unless DROC DC or the Board needs it to process a remand.
 
Note:  The Litigation Staff does not wait for CAVC to issue its decision before transferring the claims folder back to the RO, Board, or DROC DC.

7.J.1.d.  Handling Claims Related to an Issue Before CAVC

  
Upon receipt of a claim related to an issue before CAVC after the claims folder has been forwarded to the Litigation Staff
  • do not process the claim
  • acknowledge receipt of the material
  • file it in the temporary claims folder, and
  • notify the Litigation Staff that material related to the appeal before CAVC
    • has been received, and
    • is being maintained at the RO.

7.J.1.e.  Handling Claims Unrelated to an Issue Before CAVC

  
Upon receipt of a claim unrelated to an issue before CAVC after the claims folder has been forwarded to the Litigation Staff, process the claim as expeditiously as possible.
 
The table below describes the process for obtaining the claims folder from the Litigation Staff if the claims folder is needed to process the claim.
 
 

Step

Description
1
The development activity determines if the claim can be processed based on the information in the temporary claims folder.
  • If yes, the development activity processes the claim.
  • If no, go to step 2.
2
The development activity requests the return of the claims folder by faxing a request to the CAVC Litigation Staff at (202) 632-7122.
The faxed request should include the
  • claimant’s name
  • claim number, and
  • reason for requesting the claims folder.
3
The attorney to whom the case is assigned determines whether the claims folder may be returned to the RO immediately.
  • If yes, the attorney
    • determines whether the claims folder must subsequently be returned to the Litigation Staff, and
    • returns the claims folder to the RO.
  • If no, go to step 4.
4
The attorney either
  • advises the development activity of the
    • reason for delay, and
    • date the claims folder will be available, or
  • contacts the RO development activity to discuss the matter and determine the best course of action to take, such as faxing copies of necessary documents to the RO.
Note:  If the attorney advises the RO development activity that the return of the claims folder is delayed, the RO may request the specific information from the claims folder needed to process the claim.

7.J.1.f.  Handling Supplemental Service Treatment Records (STRs) Pertinent to an Appeal Before CAVC

  
Upon receipt of supplemental service treatment records (STRs) that are pertinent to an appeal pending before CAVC, the DROC Manager (DROCM), Pension Management Center Manager (PMCM), or other designee at the RO will contact OAR Program Administration at oaradmin.vbawas@va.gov.

 
 

2.  Administrative Appeals

 
 

Introduction

  
This topic contains information on administrative appeals, including

Change Date

  
May 27, 2022

7.J.2.a.  Time Limit for Making an Administrative Appeal

  
An administrative appeal must be made within
  • 60 days for a manager of the Veterns Service Center, Pension Management Center, DROC, or
  • six months for a Director.
References:  For more information on
Note:  VA removed the authority to submit new administrative appeals, effective February 19, 2019, by rescinding 38 CFR 19.50 to 19.53, and 38 CFR 20.400 and 20.401.

7.J.2.b.  Preparing an Administrative Appeal

  
The table below shows the steps to follow when preparing an administrative appeal.
 
 
Step
Action
1
Create a memorandum for the claims folder, entitled “Administrative Appeal,” setting forth the issues and basis for the appeal.
2
  • Notify the claimant and their representative of
    • the question at issue
    • their right to join in the administrative appeal, be represented, and appear at a formal hearing, and
  • advise the claimant and local service organization representative that Department of Veterans Affairs (VA) allows 60 days for them to join the appeal. 
Reference:  For more information on notifying the claimant and their representative, see the former 38 CFR 19.52.
3
  • Send a copy of the administrative appeal memorandum to the claimant so they can better determine whether or not to join the appeal, and
  • inform the claimant that submission of additional evidence or argument will be considered an election to join the administrative appeal.
4
Does the claimant wish to join the administrative appeal?
  • If yes,
    • prepare a statement of the case (SOC), and
    • send a copy to the claimant and their representative with notice of the time in which a substantive appeal should be perfected. (Note:  If the claimant joins the administrative appeal and subsequently requests a formal hearing, the Decision Review Officer (DRO) assumes jurisdiction over the issue.)
  • If no, inform the claimant that
    • no evidence or argument should be submitted until after the administrative appeal is decided, and
    • failure to join the administrative appeal does not adversely affect their right to a separate appeal. 
Reference:  For more information on claimants joining the administrative appeal, see the former 38 CFR 20.400.
5
If the claimant submits a
  • substantive appeal
    • merge the administrative appeal with the claimant’s appeal
    • handle the case in accordance with procedures governing legacy appeals by claimants and their representatives, and
    • establish a Veterans Appeal Control and Locator System (VACOLS) record.
  • separate appeal, explain that
    • any appellate decision made on a separate appeal will be made by members who did not participate in the decision made on the administrative appeal, and
    • the time limit for filing a separate appeal will be extended by the amount of time that passed from the date of notification to the claimant of the administrative appeal to the date of the Board decision. 
References:  For more information on
 

7.J.2.c.Board Decisions Do Not Preclude Separate Appeals

  
When the Board decides an administrative appeal, the decision does not preclude a claimant or their representative who has not merged the appeal from submitting a notice of disagreement (NOD) and a substantive appeal on the same issue.

7.J.2.d.  Time Limit for Filing a Separate Appeal

  
To determine the claimant’s time limit for perfecting a separate appeal, use the date the Board decided the administrative appeal, not the date the claimant was notified of the administrative appeal.

 

3.  Appeals After Death

 

Introduction

  
This topic contains information on appeals after death, including

Change Date

  
July 23, 2024

7.J.3.a.  Handling Appeals of Decedents Pending With the Board

  
Appeals pending before the Board at the time of the appellant’s death do not survive the appellant’s death; unless a person who is eligible for accrued benefits under 38 U.S.C. 5121(a) requests to proceed with the decedent’s appeal.
 
If the appellant dies before the Board renders a decision on a pending appeal, the Board will dismiss the appeal and return it to the ROJ.
 
If a person eligible to receive accrued benefits makes a claim to substitute the decedent’s claim or appeal, the ROJ will decide the basic eligibility for substitution.  Any adverse determination on basic eligibility is appealable to the Board.
 
If found eligible, the substitute claimant will receive the same docket number that was assigned to the original appellant’s appeal.
 
Use the table below to handle the appeal when VA receives notice of the appellant’s death.
 
If the claims folder is under the jurisdiction of the …
Then …
And …
RO
update VACOLS to show “Withdrawn Death of Veteran.”
if VA was notified of the Veteran’s death within one year, provide an application for accrued benefits to any potentially eligible survivors.
 
Reference:  For more information on providing an application for accrued benefits, see M21-5 Chapter 7, Section J.3.b.
DROC
request return of the claims folder from DROC DC if it does not independently return the claims folder to the ROJ.
address any potential benefits for eligible survivors.
Board
provide the Board Inbound Operations Team with evidence of death (e.g., death certificate and/or Social Security Administration printout).
Note:  If the appeal is in an active or remand status, email evidence of death to the Board’s Inbound Operations Team at BVACSBTeam@va.gov.
 
Note: The email should include the Veteran’s name, file number, date of death, and reference to where the evidence can be found in the eFolder (such as date of receipt, document label, etc.)
OGC
notify the appropriate OGC staff, CAVC Litigation Staff.
Result:  OGC will notify the appropriate court, if necessary.
 
References:  For more information on

7.J.3.b.  Providing Accrued Benefits Application

  
A claim for accrued benefits or request to substitute is necessary to act on a claim or appeal pending before VA at the time of the Veteran’s death.
 
If VA is notified within one year following the death of the Veteran
Note:  Send VA Form 21P-0847 when there is no evidence of accrued benefits and a claim or appeal was pending at the time of the original claimant’s death.
 
References:  For more information on

7.J.3.c.  Death Occurring During the One Year Appeal Period

  
If the original claimant’s death occurs within the one-year period in which an NOD may be filed
  • the claim is considered pending, and
  • a substitute claimant may file an NOD.

Reference:  For more information on accrued claims and requests to substitute, see M21-1, Part XI, Subpart ii, 3.C. 

 

4. Understanding New and Material Evidence

 
 

Introduction

 
This topic contains information on understanding new and material evidence, including

Change Date

 

May 27, 2022

7.J.4.a.  Appeals Modernization Act:  Changing Material to Relevant

 
Effective February 19, 2019, Public Law 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act (AMA)) changed the evidentiary standard for reopening benefit decisions from new and material to new and relevant.  In essence, the difference between material and relevant is that the latter has broader application.  To be material, evidence had to specifically address at least one reason for the prior denial.  However, to be relevant, evidence must simply help prove or disprove any matter at issue in a claim, or raise a theory of entitlement not previously addressed.
Material evidence still applies to appeals resulting from decisions made before February 19, 2019, including legacy appeals.
Reference:  For more information on new and relevant evidence, see 38 CFR 3.2501(a).

7.J.4.b.  Importance of New and Material Evidence

  
A claimant must submit new and material evidence to reopen a claim that has become final because the
  • appeal period has expired, or
  • appellate review is complete.
References: For more information on the definition of new and material evidence, see
Note:  Interpret 38 CFR 3.156 as creating a low threshold for reopening claims.
 

7.J.4.c.  Effect of New and Material Evidence

 
VA’s determination that evidence is new and material means the evidence, by itself or when considered with evidence already of record,
  • relates to an unestablished fact that is required to substantiate the claim, and
  • raises a reasonable possibility of substantiating the claim.
New and material evidence reopens the previously denied claim, and may require VA to develop evidence before deciding the claim or appeal on its merits.  
 
Note:  VA may ultimately confirm and continue the previous denial if the evidence of record, while sufficient to reopen a claim, still fails to establish the facts necessary to substantiate it.
 
Reference:  For more information on substantiating a claim, see M21-5, Chapter 7, Section J.4.f.

7.J.4.d.       Definition of  New and Material Evidence

 
Evidence is new if VA has not previously considered it.
 
Evidence is material if, by itself, or when considered with previous evidence of record, it relates to any unestablished fact necessary to substantiate the claim.
 
New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final decision, and must raise a reasonable possibility of substantiating the claim.
 
Reference:  For more information on new and material evidence, see

7.J.4.e.       Cumulative Evidence

 
Evidence that is merely cumulative is not to be considered new evidence.
 
Cumulative evidence reinforces a previously proven or conceded element of the claim, or merely rehashes previously submitted statements.
 
Important:  Corroborating witness statements and supplemental medical nexus opinions are neither cumulative nor redundant if they address an element of the claim that has not already been proven or conceded.

7.J.4.f.         Reasonable Possibility of Substantiating the Claim

 
The phrase, “must raise a reasonable possibility of substantiating the claim,” does not create a third element for new and material evidence.  Instead, it provides guidance in determining whether the evidence submitted meets the new and material requirements.
 
The threshold of a reasonable possibility of substantiating the claim does not necessarily mean the new and material evidence must establish entitlement.  It merely means that the new and material evidence must support or provide substance to the claim.
 
If newly submitted medical evidence, when viewed with the existing evidence of record, would be sufficient to trigger a VA examination under 38 CFR 3.159(c)(4), then the evidence is sufficient to reopen the claim.
 
When SC was previously denied because multiple facts necessary to substantiate the claim were not established, new and material evidence relating to only one of the facts may be sufficient to raise a reasonable possibility of substantiating the claim.  Make that determination on a case-by-case basis.  New and material evidence relating to a single unestablished fact will not be sufficient to reopen every claim.
 
Example 1:  A claim for SC for a skin disorder showed dermatitis in service but a VA examination showed no current disability.  The Veteran later filed a claim to reopen and submitted a medical record showing a diagnosis of a current skin disorder.  No further records were identified or could be obtained. 
 
Result:  The claim for SC is reopened.  Nexus information is not needed to reopen.  The competent evidence goes to one element of the claim that formed the basis of the prior denial, providing a reasonable possibility of substantiating the claim.  The new evidence, when viewed with the prior evidence, is sufficient to trigger VA’s duty to assist to provide a VA examination.
 
Example 2:  A claim for SC for asthma found no complaints, findings, or diagnoses related to asthma in service.  The VA examination was normal.  VA denied the claim.  The Veteran later requested to reopen and submitted private medical records showing that he was treated for upper respiratory infections in service.  No further records were identified or could be obtained. 
 
Result:  The claim for SC is not reopened.  The Veteran submitted new evidence on one element needed to substantiate the claim but there is still no evidence of a current disability.  There is no reasonable possibility of substantiating the claim.
 
Reference:  For more information on a reasonable possibility that new and material evidence would substantiate the claim, see Shade v. Shinseki, 24 Vet.App. 110 (2010).

7.J.4.g.  Example of New Evidence

 
Situation:  A Veteran files a claim for service connection (SC) for a back disorder and submits an examination report from a physician who states that they diagnosed the Veteran with a back disorder five years after the Veteran was discharged from service.  VA denies the claim in the absence of evidence of a relationship between service and the disability.  Two years later, the Veteran attempts to reopen the claim by submitting an examination report from a second physician.
 
Explanation:  If the second examination report
  • only confirms the diagnosis of the first physician, VA would not consider the report to be new evidence, but
  • if the report indicates the back disorder had its onset significantly closer to the Veteran’s discharge date, VA would consider the report to be new evidence.

7.J.4.h.  Example of Material Evidence

 
Situation:  VA previously decided that a current diagnosed back condition claimed by a Vietnam-era Veteran is not service-connected because it is not related to an in-service event, injury, or disease.
 
 
Explanation:  If VA subsequently receives new evidence
  • showing the claimant received treatment shortly after release from active duty, this evidence is material to the Veteran’s claim because it might establish the missing link between service and the current condition, or
  • describing only the current severity of the claimed condition, over 50 years after service ended, the evidence is not material to the Veteran’s claim because it fails to establish the missing nexus between service and the current condition.

7.J.4.i.  Examples of New and Material Evidence

 
The following are examples of evidence that are new and material and therefore,
sufficient to reopen a claim:
  • after VA denies SC due to “no nexus,” the Veteran submits a new opinion from a specialist linking the condition to service and providing a rationale.
  • after VA denies SC because “disability does not exist,” the Veteran submits medical report showing the existence of the disability.
  • after VA denies SC for back injury as “not incurred in service,” the Veteran submits a lay statement for the first time from a friend who certifies that they witnessed the Veteran injure their back in service.

7.J.4.j.  Examples of Evidence Not New and Material 

  
The following are examples of evidence not new and material and therefore, insufficient to reopen a denied claim:
  • a record photocopied from the claims folder that was considered in the previous decision
  • a new medical nexus opinion incorporating an inaccurate history (see Reonal v. Brown, 5 Vet.App. 458 (1993) for more information)
  • written testimony from an eyewitness that is substantially identical to a statement already on file
  • a layperson’s assertion about the cause (but not the onset) of a disability, or
  • medical evidence that reveals the existence of a disability when previous evidence already supported its existence.

 

5. Using New and Material Evidence to Reopen Legacy Decisions

 
 

Introduction

 
This topic contains information on using new and material evidence to reopen legacy decisions, including 

Change Date

 

July 23, 2024

7.J.5.a.  Not Applying the Benefit of the Doubt

 
The standard for reopening claims prior to February 19, 2019, required the presentation or securing of new and material evidence.  See 38 U.S.C. 5103A(f).  The weight of the evidence was not considered.  Therefore, the benefit of the doubt under 38 U.S.C. 5107(b) was not applicable to this issue.
 
Reference:  For more information on the benefit-of-the-doubt rule, see Martinez v. Brown, 6 Vet.App. 462 (1994).

7.J.5.b.  Presuming Credibility of the Evidence

  
When determining whether new and material evidence has been submitted to justify reopening a claim, presume the new evidence to be credible.
 
Note:  Once a claim has been reopened, the presumption of the credibility of the evidence no longer applies, and the evidence must be weighed.
 
Reference:  For more information on credible evidence, see Justus v. Principi, 3 Vet.App. 510 (1992).
 

7.J.5.c.  Forms to Reopen Claims

 
On or after March 24, 2015, VA must receive a request to reopen a claim based on new and material evidence on a prescribed form.  On or after February 19, 2019, a supplemental claim requires VA Form 20-0995, Decision Review Request, Supplemental Claim.

7.J.5.d.       Section 5103 Requirements

 
Do not provide a case-specific Section 5103 notice to a claimant attempting to reopen a previously denied claim.  The prior denial should have included the specific reasons supporting the decision and the evidence considered.

7.J.5.e.       Making New Decisions After Final Decisions

 
To reopen claims decided prior to February 19, 2019, the following standards apply.
 
Under 38 CFR 3.156(a), a claim that is finally adjudicated under 38 CFR 3.160(d) cannot be reopened unless VA receives new and material evidence.
 
Important:  The principles of reopening a claim under 38 CFR 3.156(a) do not apply when making a new decision on a claim that is final and binding, but not finally adjudicated (that is, within the one-year appeal period).  In such cases, the claim must be reconsidered.
 
References:  For more information on

7.J.5.f.         Making New Decisions Before Final Decisions

 
Consider and evaluate any new and material evidence that VA receives after issuing a decision and prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed.  VA may consider such evidence to be filed in connection with the claim that was pending at the beginning of the appeal period.
 
Important:  Rating narratives need not include the standard new and material text when decisions are not yet final.  Claimants need not reopen non-final decisions, as a matter of law.
 
In Beraud v. McDonald, 766 F.3d 1402 (Fed. Cir. 2014), the court held that VA must directly respond to a new submission of evidence received prior to the expiration of the one-year appeal period, and that, until it does, the claim remains open.  Therefore, ROs must continue to
  • respond directly to any and all evidence submitted during the appeal period or before disposition of appellate decision (reconsideration), and
  • evaluate such evidence on its merits and complete a formal decision that addresses the new evidence.
Reference:  For more information on new and material evidence received within the appeal period, see 38 CFR 3.156(b).

7.J.5.g.  Addressing Materiality of Evidence

 
The table below describes the proper handling of cases that require rating action to address the materiality of new evidence.
 
If  …
Then …
the evidence submitted is new and material
the development and/or rating activity will
  • reopen the claim,
  • complete any necessary development, including a VA exam, and
  • redecide the claim on its merits based on all previously existing and newly submitted evidence.
the evidence submitted is new, but not material
the rating activity will prepare a rating decision that
  • confirms the previous decision, and
  • indicates that the claim is not successfully reopened.
Important:  The rating decision must explain the reason for the continued denial and why the submitted evidence is new, but not material.
 
Reference:  For more information on administrative denial of claims in which the claimant submits no evidence or duplicative evidence,see M21-1 Part X, Subpart v, 1.C.

7.J.5.h.  Legacy Appeals Involving New and Material Evidence

 
A claimant may appeal a determination that evidence is not new and material.
 
Limit the SOC to that issue, citing all of the following in the summary of evidence and adjudicative actions: 
  • the date of the
    • original denial
    • notification of that denial
    • receipt of the evidence submitted to reopen the claim
    • finding that the evidence was not considered to be new and material, and
    • notification of that decision, and
  • the evidence submitted.

7.J.5.i.  Applying New and Material Evidence to Character of Discharge

 
Statements and affidavits attesting to a claimant’s good character since their release from active duty are not material when the issue is the character of a claimant’s military service.
 
However, any new information VA receives after making an unfavorable character-of-discharge determination, which indicates mitigating circumstances behind the action(s) that resulted in the other-than-honorable discharge,
  • is material, and
  • warrants reopening the character of the claimant’s service.