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Updated Jun 24, 2024

In This Section

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

                                                         

1.  Common Appeals Terminology and Definitions

 

Introduction

  

This topic contains information on common appeals terminology and definitions, including the definitions of

Change Date

   June 25, 2024

7.A.1.a.  Definition:  Claimant

  
A claimant is a person who has filed a claim for entitlement to a specific benefit under the laws adminstered by the Department of Veterans Affairs (VA).

 
Reference:  For more information on claimants, see 38 CFR 20.3(g).

7.A.1.b.  Definition: Appellant

  
An appellant is a claimant who has initiated an appeal to the Board of Veterans’ Appeals (Board) by filing a timely notice of disagreement (NOD) with the agency of original jurisdiction (AOJ) that completed the decision pursuant to the provisions of
Note:  This definition, as well as all other definitions and guidance in M21-5, Chapter 7, Legacy Appeal Procedures, pertains to legacy appeals ONLY, unless otherwise specified. 
 

7.A.1.c.  Definition: DRO

  
The Decision Review Officer (DRO) is a senior technical expert who is responsible for holding post-decisional hearings and processing appeals.  The DRO may have jurisdiction of any legacy appeal.
 
Reference:  For more information on DROs, their duties, and their decision process, see M21-5, Chapter 7, Section C.

7.A.1.d.  Definition: NOD

  

A notice of disagreement (NOD) about a decision rendered with notification sent prior to March 24, 2015, is a written communication from a claimant or their representative expressing

  • dissatisfaction or disagreement with a decision, and
  • a desire to contest the result.
Although no specific wording is required in the NOD received prior to March 24, 2015, it must be written in terms that can be reasonably interpreted as a disagreement with a decision and a desire for appellate review.
 
Effective March 24, 2015, a timely and complete VA Form 21-0958, Notice of Disagreement, is required for VA to accept the NOD as a legacy appeal of a previous decision issued prior to February 19, 2019.  VA will not accept as a notice of disagreement an expression of dissatisfaction or disagreement with an adjudicative determination for compensation by the AOJ and a desire to contest the result that is submitted in any other format, including on a different VA form.
 
Exception: There is no standard form requirement for a legacy NOD which contests a decision regarding a claimant’s entitlement to pension, Dependency and Indemnity Compensation (DIC), or accrued benefits.
 
A benefit decision made on or after February 19, 2019, requires a properly completed VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), submitted directly to the Board.  The claimant may choose a direct review of the record considered by the AOJ at the time of the contested decision, a Board hearing, or the opportunity to submit additional evidence to the Board. 
 
Reference:  For more information on NODs, see M21-5, Chapter 7, Section B.

7.A.1.e.  Definition: De Novo Review

  
A de novo review is a new and complete review of the appealed issue with no deference given to the decision being appealed.  This review leads to a new decision, which may be a full grant, partial grant, clear and unmistakable error, or no change.
 
References:  For more information on de novo review, see 

7.A.1.f.  Definition: Downstream Issue

  
A downstream issue is an issue which arises as a direct result of a favorable decision on an appealed issue and must be addressed by the decision maker.
 
Example:  A Veteran files an appeal for service connection (SC) for depression.  When granting SC for depression, the DRO must address the following downstream issues:
  • disability evaluation
  • effective date, and
  • entitlement to any ancillary benefits that arise, based upon the evidence, such as
    • individual unemployability
    • Dependents’ Educational Assistance, and/or
    • special monthly compensation.
Important:  A decision on a downstream issue may or may not confer new appeal rights.
 
References:  For more information on

7.A.1.g.  Definition: Inextricably Intertwined

  
An issue is inextricably intertwined with a matter(s) on appeal when a decision on that issue by the regional office (RO) could have a significant impact on the matter(s) under appeal.
 
Notes:
  • A decision has a significant impact on the matter under appeal when it tends to make it more or less likely that the benefit sought will be awarded.
  • All matters that are inextricably intertwined must be adjudicated before any determination by the Board may be made.
Example:  A Veteran files an appeal on the denial of SC for depression and a new claim alleging that fibromyalgia was caused by depression. The rating activity issues a denial of SC for fibromyalgia.  The Veteran files an NOD with the denial of SC for fibromyalgia and, subsequently, a VA Form 9, Appeal to Board of Veterans’ Appeals.
 
Result:  The issue of SC for fibromyalgia secondary to depression is inextricably intertwined with the appeal for depression. Consequently, both appeals must be certified simultaneously to the Board.
 
References:  For more information on

7.A.1.h.  Definition:  Full Grant

  
If the issue under appeal is initial service-connection (SC), a full grant occurs when SC for the disability is granted.
 
If the issue under appeal is the evaluation of an already SC disability, a full grant of an issue on appeal occurs when the maximum benefit allowed by law and regulation for the specific issue(s) under appeal is granted for the entire period under appeal.
 
Exception:  When a Veteran submits an appeal for a specific disability evaluation other than the schedular maximum, an award of the specifically requested evaluation for the entire period under appeal is considered a full grant.
 
Examples:
  • A Veteran files an NOD seeking SC for a left knee condition.  A DRO subsequently grants SC for the left knee condition.  This is a full grant of the benefit sought and the appeal has been satisfied.
  • A Veteran files an NOD as to the evaluation of the SC left knee.  A DRO grants an increased evaluation, but not the maximum schedular evaluation allowed for the left knee condition.  This is not a full grant of the benefit sought and the original appeal remains active.
Reference:  For more information on fully granting the benefit sought, see

7.A.1.i.  Definition: Partial Grant

  
A partial grant of an issue on appeal occurs when the maximum schedular benefit allowed by law and regulation for the issue(s) under appeal is not granted for the entire period under appeal.
 
Important:  If the issue under appeal is initial SC, a partial grant cannot occur; the decision rendered must either involve a full grant or denial of the issue under appeal.
 
Reference:  For more information on partial appeal grants, see M21-5, Chapter 7, Section D.2.

7.A.1.j.  Definition: Informal Conference

  
In legacy appeals, an informal conference is a tool available to the DRO and other RO personnel during the DRO review process to ensure
  • all parties understand the issue(s) pending review
  • the issues are focused and clarified, and
  • the record is fully developed.
An oath or affirmation is not used for an informal conference.
 
Note:  While informal conferences are not part of the traditional appellate review process, direct communication with the Veteran and their representative are not precluded in these cases and should be initiated to facilitate resolution or clarification about matters on appeal.
 
In modernized appeals, an informal conference is an optional part of a higher-level review.  It allows a claimant and/or representative the opportunity to identify any errors of law or fact in a prior decision.
 
References:  For more information on

7.A.1.k.  Definition: SOC

  
A statement of the case (SOC) is an explanation of the decision made on the appellant’s case.
 
An SOC provides the appellant with a complete understanding of the decision so the appellant can prepare an effective substantive appeal with specific allegations of errors of fact or law.
 
Reference:  For more information on SOCs, see M21-5, Chapter 7, Section D.3.

7.A.1.l.  Definition: SSOC

  
A supplemental statement of the case (SSOC) presents the appellant with changes or additions to the SOC. 
 
These changes and additions are usually based on additional evidence received
  • after the issuance of the SOC
  • before or after receipt of a substantive appeal, or
  • after a remand.
Note:  If an appellant has not yet filed a substantive appeal, they will still need to respond to an SSOC by filing a substantive appeal, usually on VA Form 9, to perfect the appeal.
 
Reference:  For more information on SSOCs, see M21-5, Chapter 7, Section D.4.

7.A.1.m.  Definition: Remanded Appeal

  
A remanded appeal is an appeal that has been returned by the Board to VBA for
  • development of additional evidence
  • due process, or
  • reconsideration of issues.
Important:  Remanded appeals are typically among the oldest cases and must be worked on a priority basis.
 
Reference:  For more information on remanded appeals, see M21-5, Chapter 7, Section G.3.

7.A.1.n. Definition: Trailing Docket

  
A trailing docket is a Travel Board docket in which hearings at the RO are scheduled in immediate succession rather than at specific, individual times.
 

7.A.1.o.  Definition: Administrative Appeal

  
An administrative appeal is
  • an appeal filed as the result of an adjudicated action, and
  • initiated and filed by the DROC Manager (DROCM), Veterans Service Center Manager (VSCM), Pension Management Center Manager (PMCM), or Director of an RO because they disagree with the decision.
Note:  The authority to submit an administrative appeal ended on February 19, 2019, with the redesignation of 38 CFR 19.50.
 
Reference:  For more information on administrative appeals, see M21-5, Chapter 7, Section J.2.

 

7.A.1.p.  Definition: Legacy Appeal

  
A legacy appeal is a disagreement with a VA benefits decision made before February 19, 2019, the effective date of Public Law 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act, or AMA).
 
A legacy appeal is initiated by the filing of an NOD and is perfected to the Board  with the filing of a Substantive Appeal.  A claimant may have the opportunity to elect to participate in the modernized review system, as discussed in M21-5, Chapter 4, Topic 3.
 
References:  For more information on legacy claims and appeals, see

 

7.A.1.q.  Definition: Modernized Appeal

  
The modernized appeal, or modern decision review, resulted from Public Law 115-55, the Veterans Appeals Improvement and Modernization Act of 2017 (Appeals Modernization Act, or AMA).  The President signed the law on August 23, 2017, and it became effective on February 19, 2019.  It contained numerous provisions, including:
  • changes to decision notices
  • new decision review processes, including higher-level reviews and supplemental claims, and
  • new options available at the Board of Veterans’ Appeals.
References:  For more information on modernized appeals and the AMA, see

2.  Appeal Process

 

Introduction

  

This topic contains information on the appeal process, including

Change Date

   May 27, 2022

7.A.2.a.  Formal Hearings

  
The appellant may elect to have a formal hearing at any time during the appeal process.
 
Reference:  For more information on hearings, see M21-1, Part X, Subpart v, Chapter 1.D.1.a

7.A.2.b.  Overview of the Appeal Process

  
The table below describes the stages in the appeal process.
 
Note:  The table below, as well as all other guidance in M21-5, Chapter 7, Legacy Appeal Procedures, pertains to legacy appeals ONLY, unless otherwise specified. 
 

Stage

Who Is Responsible

Action

Reference

1

Appellant
  • files an NOD in response to a VA decision regarding their benefit claim, and
  • may elect either the DRO review process or the traditional appellate review process. 

Notes: 

  • There was no standard form requirement for an NOD which contested a decision regarding a claimant’s entitlement to pension, Dependency and Indemnity Compensation (DIC), or accrued benefits until February 19, 2019.  For decisions made on or after that date, the Board has immediate jurisdiction over notices of disagreement submitted using VA Form 10182.
  • VA Form 21-0958, included checkboxes for the appellant to elect either the DRO review process or the traditional appellate review process.  Appellants may also choose to elect a particular appellate review process with the submission of valid NODs in other formats.

See

2

Intake Processing Center (IPC), Appeals team, or other trained personnel

 
  • reviews all potential NODs and determines if the NOD is
    • valid
    • complete
    • timely, or
    • duplicative
  • initiates a Veterans Appeal Control and Locator System (VACOLS) record per steps in M21-5, Chapter 6, Section B.2
  • establishes a 170 series end product (EP) per steps in M21-5, Chapter 6, Section B.2.d and
  • sends the appropriate appellate review process letter.

See
3
Appeals team
  • identifies and reviews newly established NODs
  • requests clarification of any appellate issues, when required
  • completes the ISSUES tab in the VACOLS record, and
  • develops the NOD, when required, to include any requested telephone contact, formal hearings or informal conferences.
See

4

Appellant
elects either the
  • DRO , or
  • traditional appellate review process without a DRO. 

See 

5

Appeals team

conducts one of the following review processes based on the appellant’s choice:

  • DRO, or
  • traditional appellate review process without a DRO review.

See

6

Appeals team
  • determines whether a change to the decision on appeal is warranted based upon a review of the evidence
  • issues a decision, and
  • clears the EP.

See

7

Appellant
  • returns VA Form 9 or a substantive appeal in lieu of VA Form 9 within the applicable time frames, and
  • may elect one of the following types of Board hearings
    • Travel Board
    • Videoconference, or
    • in person in Washington, DC, or
  • may elect a local hearing before RO personnel. 

Note:  An appellant may also choose not to have a hearing.

See

 

 

8

IPC, Appeals team, or other  trained personnel

when a substantive appeal  is received 

  •  determines if it is
    • valid
    • complete
    • timely, or
    • duplicative
  • reestablishes the 170 series EP with the appropriate Form 9 claim label, and
  • updates VACOLS.

See

9

Appeals team

reviews the appeal to determine if

  • an SSOC is required
  • additional development is required, or   
  • the appeal is ready for certification to the Board.      

See

10
  • Appeals team, or
  • DROCM/VSCM/PMCM designee
  • certifies and transfers the appeal to the Board, and
  • clears the EP.

 

See

11

Board
if requested, schedules a hearing. 

See

12

Board

issues a decision

  • granting or denying the benefit, or
  • remanding the case to the DROC or RO for additional action.

See

13

Appeals team
  • establishes 070 series EP with appropriate claim label
  • implements the Board’s decision to grant any issues
  • completes action on any remanded issues per the remand instructions
  • if new evidence is received, issues a decision
  • clears the EP, and
  • returns the appeal to the Board.

See

14

Board

issues a final decision in a remanded case and returns the case to the DROC or RO for review/processing. 

See

15

Appellant

may appeal the final Board decision to the U.S. Court of Appeals for Veterans Claims within 120 days of the date of the decision if not satisfied with the Board decision.

See
 

 

3.  Withdrawing and/or Reinstating an Appeal

 

Introduction

  

This topic contains information on

Change Date

   June 25, 2024

7.A.3.a.  Who May Withdraw an Appeal

  
An appeal (NOD or substantive appeal) can be withdrawn, in writing, at any stage in the appellate process by
  • the appellant, or
  • their authorized representative, including an attorney, without the written consent of the appellant. 
Important: 
  • RO or DROC authority to effectuate withdrawal of appeals is limited to
    • appeals that have not been transferred to the Board, or
    • remanded appeals that have been returned from the Board to either the RO or DROC.
  • If the appellant or representative files the withdrawal after the AOJ sends notice that an appellate record has been transferred to the Board or that a remanded appeal has been returned to the Board, then the Board must process the withdrawal of that appeal.
References:  For more information on

7.A.3.b.  Requirements for Withdrawal of an Appeal

  
A request to withdraw an appeal must be submitted in writing.  If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal.
 
Exception:  A written submission is not required when the appellant withdraws an appeal on the record at a hearing.  See M21-5, Chapter 7, Section A.3.a.
 
Notes: 
  • Failure of the appellant to report for an examination or furnish evidence requested by VA does not constitute withdrawal of an appeal.
  • A withdrawal of an appeal documented in an e-mail or on VA Form 27-0820, Report of General Information, by a VA employee is not a valid withdrawal of an appeal and does not meet the requirement that the withdrawal be in writing.
  • If it is not clear which issue(s) the appellant is withdrawing, contact the appellant to clarify and document the clarification on VA Form 27-0820.  While the withdrawal of an appeal must be in writing, clarification of which issues are being withdrawn may be accepted through a telephone call. 

Reference:  For more information on handling a notice of death when an appeal is pending, see M21-5, Chapter 7, Section J.3.a.

7.A.3.c.  Procedures for Withdrawn Appeals under RO/DROC Jurisdiction

  
When processing a valid withdrawal of appeal, follow the steps in the table below.
 

Step

Action

1

Were all issues of the appeal withdrawn?

  • If yes,
    • in VACOLS, highlight the relevant appeal record
    • select the DISPATCH APPEAL button
      • select WITHDRAWN BY CLAIMANT in the DISPOSITION OF APPEAL field, and
      • enter the date the withdrawal was received in the DISPOSITION DATE field
    • cancel any pending appeal EP(s), and
    • proceed to Step 3.
  • If no, proceed to the next step.

2

To withdraw individual issues on an appeal in VACOLS

  • open the relevant appeal record
  • select the appropriate appeal issue on the ISSUES tab
  • select the UPDATE button
  • select Advance W/D by Appellant from the DISPOSITION drop down menu
  • enter the date the withdrawal was received in the DISP DATE field, and
  • proceed to the next step.

3

Send the appellant, and their authorized representative, if any, the Withdrawn Appeal letter from the Letter Creator tool, or equivalent letter from the Personal Computer-Generated Letters (PCGL), explaining

  • which appeal issue(s) has been withdrawn based on the request, and
  • if any time remains before the appeal period expires, how to reinstate the appeal and the date that appeal period ends.
 
References:  For more information on
 

7.A.3.d.  Withdrawing Appeals During a Hearing

  
If an appellant indicates during a hearing that they wish to withdraw any issues under appeal, or withdraw the appeal in its entirety, the statement of withdrawal must be explicit, unambiguous, and done with the appellant’s full understanding of the consequences of such action.  See DeLisio v. Shinseki, 25 Vet. App. 45 (2011).
 
The hearing official should ensure VA records the verbal withdrawal, and must instruct the appellant as follows:
  1. “Please state for the record whether you are withdrawing this appeal in its entirety.  If you are not withdrawing this appeal in its entirety, please state the specific issues you wish to withdraw.”
  2. “Please state for the record your reasons for withdrawing this appeal/issue.”  (If the hearing official determines the appellant’s reasons for withdrawal are based on misinformation or misconceptions regarding the appeals process, the official should provide the appellant with the correct information.) 
  3. “Do you have any questions regarding the withdrawal of this appeal/issue?”
  4. “[Appellant’s name], I need to explain the consequences of withdrawing your appeal.  You have stated you wish to withdraw [state all issue(s) as indicated by the appellant].  If you withdraw these issues, that means you are no longer pursuing an appeal for benefits for them, and VA will not decide them.  You will only be able to obtain additional compensation or other potential VA benefits based on those issues if you file another claim.  Do you fully understand the consequences I have just discussed?  Do you wish to proceed with withdrawing your appeal for these issues? [Make sure the responses are clear affirmations.]
Follow the steps outlined in M21-5, Chapter 7, Section A.3.c to complete the withdrawal.
 
Notes:

  • It is imperative to obtain confirmation of any action from the appellant, even if there is an authorized representative present.

  • If the VA official conducting the hearing believes the appellant is still unable to fully comprehend the discussion, the official may encourage the appellant and/or representative to submit a written withdrawal to support the verbal request.  VA should afford the appellant 10 business days from the date of the hearing to submit the written withdrawal.

  • Appellants who waive the right to have their hearings recorded and transcribed must submit their requests to withdraw appeals/issues in writing. 
Reference:  For more information on appellants waiving their rights to have hearings recorded and transcribed, see M21-1, Part X, Subpart v, Chapter 1.D.6.d.
 

7.A.3.e.  Requests to Withdraw Appeals Under Board Jurisdiction

  
Use the table below if an appeal withdrawal is received at the RO or DROC after the appellate record has been transferred to the Board.
 
If the appeal withdrawal is received …
Then …
in the RO’s mailroom
follow the procedures in M21-1, Part II, Subpart i, 1.A.2 to ship the mail to the scanning vendor for the Board.
in the RO’s Centralized Mail (CM) queue
transfer the mail to the Board’s CM mail queue per the instructions in M21-1, Part II, Subpart i, 2.A.5.
with a paper claims folder
forward the correspondence to
 
Board of Veterans’ Appeals
P.O. Box 27063
Washington, DC 20038.
 
Important: 
  • Do not upload the withdrawal request directly to the electronic claims folder.
  • Upon receipt of the documents, the Board will review the documents to determine the next appropriate action.
Reference:  For more information on transfer of the appellate record to the Board, see M21-5, Chapter 7, Section F.4.

7.A.3.f.Time Limit for Reinstating an Appeal

  

The appellant or their authorized representative can reinstate an appeal after it has been withdrawn if the request to reinstate is

  • submitted in writing, or on the proper form, when required, and
  • received by VA within the remaining appeal period.

References:  For more information on

7.A.3.g.  Requirements for a Request to Reinstate an Appeal

  
Use the table below to determine what is required to successfully reinstate an  appeal.
 

If the appealed issue is a …

And the decision notice was sent …

Then the appellant or authorized representative must submit the request for reinstatement during the remaining appeal period …

compensation benefit

before March 24, 2015

in writing.

on or after March 24, 2015
based on the table shown below.
 

If, prior to the appeal withdrawal, an SOC …

Then a request to reinstate must be filed on …

had not been sent

VA Form 21-0958.

had been sent
  • VA Form 9, or
  • other substantive appeal equivalent. 

Reference:  For more information on identifying a substantive appeal, see M21-5, Chapter 6, Section B.3.
 

pension or DIC benefit

n/a

in writing.
 
Exception:  If VA does not provide the appellant with VA Form 21-0958 as an enclosure with the decision notice, the appellant or authorized representative can successfully reinstate an NOD via written statement.
 
Note:  If the appellant or authorized representative does not reinstate the NOD or substantive appeal, within the applicable appeal period, the previously disputed RO decision(s) will be regarded as final.
 
Reference:  For more information on reinstating an appeal, see 38 CFR 19.55(c).

7.A.3.h.  Processing Requests to Reinstate an Appeal

  
Use the table below to process a request to reinstate an appeal.
 

If the request to reinstate the appeal is …

Then …

not on the correct form

process the submission in accordance with M21-5, Chapter 6, Section B.1.c.

not filed within the appropriate time limit

notify the claimant that the submission is not timely in accordance with M21-5, Chapter 6, Section B.1.j.

both valid and timely

follow the procedures in M21-5, Chapter 7, Section A.3.i.
 

7.A.3.i.  Procedures for Reinstating an Appeal

  
If a request to reinstate an appeal is determined to be valid and timely, follow the steps in the table below.
 

Step

Action

1

Was the entire appeal record previously closed?

  • If yes, proceed to the next step.
  • If no, proceed to Step 3.

2

Was the appeal in the pre-Form 9 stage?

  • If yes,
    • open the relevant appeal record in VACOLS
      • select REACTIVATE APPEAL in the UTILITIES menu, and
      • confirm reactivation by selecting YES in the pop-up window
    • establish the appropriate appeal EP per M21-5, Chapter 6, Section B, and
    • proceed to Step 4.
  • If no,
    • request the Board reactivate the appeal
    • associate documentation of the request to the Board with the claims folder either
      • on a completed VA Form 27-0820, or
      • by adding a permanent note to VBMS indicating the date the Board was notified of the need to reactivate the VACOLS record
    • establish the appropriate appeal EP per M21-5, Chapter 6, Section B.1.a, and
    • proceed to Step 4.

3

To reactivate an individual appeal issue

  • open the relevant appeal record in VACOLS
    • navigate to the ISSUES tab
    • highlight the relevant issue
    • select the CLEAR DISP button, and
    • confirm reactivation by selecting YES in the pop-up window, and
  • proceed to the next step.

4

Refer the appeal to the appropriate appeals activity.
 
References:  For more information on