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Updated Jan 24, 2022

In This Section
This section contains the following topics:
Topic
Topic Name
1
2

1.  Binding Nature of Decisions

Introduction
This topic contains general information on the binding nature of decisions, including

Change Date

 January 24, 2022

X.ii.1.A.1.a.  Binding Determinations

 Under 38 CFR 3.104 a decision of a Department of Veterans Affairs (VA) rating agency is binding on all VA field offices as to the conclusions based on the evidence on file at the time VA issues notification in accordance with 38 U.S.C. 5104.

X.ii.1.A.1.b.  Significance of Binding Determinations
Binding determinations are not subject to revision except by the Board of Veterans’ Appeals (BVA), by Federal court order, or as provided in 38 CFR 3.105, 38 CFR 3.2500, and 38 CFR 3.2600.

X.ii.1.A.1.c.  Finally Adjudicated Claims
Public Law 115-55, Veterans Appeals Improvement and Modernization Act of 2017, required VA to update the definition of finally adjudicated claim in 38 CFR 3.160(d).
Use the table below to determine the applicable definition of a finally adjudicated claim.
If the claim was decided …           
Then the claim is finally adjudicated …
 
prior to February 19, 2019,
  • when the appeal period has expired without an appeal being initiated, or
  • upon disposition on appellate review.
on or after February 19, 2019,
  • upon expiration of the period in which to file a review option available under 38 CFR 3.2500, or
  • upon disposition on judicial review where no such review option under 38 CFR 3.2500 is available.

X.ii.1.A.1.d.  Binding but Not Finally Adjudicated Claims
A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c).

X.ii.1.A.1.e.  Binding Nature of BVA Decisions
BVA decisions are binding on the Veterans Benefits Administration decision makers unless the claimant files a supplemental claim with new and relevant evidence within one year of the BVA decision.
After BVA issues a decision on an appeal, an appellant may also file
  • an appeal with the U.S. Court of Appeals for Veterans Claims, or
  • a motion for reconsideration with BVA asserting clear and unmistakable error (CUE) or presenting new service records.
Notes:
  • In the absence of new and relevant evidence, regional offices do not have the authority to award a benefit denied by a BVA decision.
  • A motion for reconsideration of a BVA decision is not a claim; therefore, the motion does not need to be submitted to BVA on a prescribed form.
References:  For more information on

X.ii.1.A.1.f.  Revising Binding Decisions
Use the table below if revising a prior decision that is binding as defined in M21-1, Part X, Subpart ii, 1.A.1.b to determine which revision authority(ies) can be applied.
If …
Then the decision may be revised …
  • the Veteran filed a timely legacy notice of disagreement (NOD), and
  • elected de novo review in a timely manner
by a Decision Review Officer (DRO)
  • on the same evidentiary basis
    • under de novo review authority, or
    • when a CUE is identified, or
  • when new and material evidence is submitted or developed after the prior decision.
  • the Veteran filed a timely legacy NOD, and
  • did not elect de novo review (or did not make a timely election)
by a DRO or other appropriate decision maker as assigned by division management
  • on the same evidentiary basis
    • based on a difference of opinion, if approved by Compensation Service or Pension and Fiduciary Service, or
    • when a CUE is identified, or
  • when new and material evidence is submitted or developed after the prior decision.
there is no legacy NOD or request for decision review
by a member of the rating activity or other appropriate decision maker as assigned by division management on the same evidentiary basis
  • based on a difference of opinion, if approved by VA Central Office, or
  • when a CUE is identified.
there is a supplemental claim
by a member of the rating activity or other appropriate decision maker as assigned by division management
  • on the same evidentiary basis
    • based on a difference of opinion, if approved by VA Central Office, or
    • when a CUE is identified, or
  • when new and relevant evidence is submitted or developed after the prior decision.
the claimant requested higher-level review (HLR)
by a higher-level reviewer on the same evidentiary basis
  • under de novo review authority
  • based on a difference of opinion, if approved by VA Central Office, or
  • when a CUE is identified.
References:  For more information on

2.  Favorable Findings

Introduction
This topic contains information on the binding nature of favorable findings, including
Change Date
August 19, 2021

X.ii.1.A.2.a.  Binding Nature of Favorable Findings
Any finding favorable to the claimant made by either a VA adjudicator, as described in 38 CFR 3.103(f)(4), or by BVA, as described in 38 CFR 20.801(a), is binding on all subsequent VA and BVA adjudicators, unless rebutted by clear and unmistakable evidence to the contrary.

X.ii.1.A.2.b.  Overturning Favorable Findings
To overturn a prior favorable finding, there must be clear and unmistakable evidence to rebut the favorable finding.
The clear and unmistakable rebuttal standard may be satisfied by a finding that the evidentiary record as a whole completely lacks any plausible support for the favorable finding.  This does not require a determination that the outcome of the benefit adjudication would undebatably change.
Note:  Unlike CUEs, a decision to overturn a previous favorable finding does not require additional approval signature(s).  If however, the overturning of favorable findings leads to the conclusion that the previous decision to award a benefit was clearly and unmistakably erroneous, then the normal CUE signature requirements apply as outlined in M21-1, Part X, Subpart ii, 5.A.3