In this Section This section contains the following topics:
Topic Topic Name See Page
3 NOD Definition 5-B-2
4 Time Limits for Filing an NOD 5-B-4
5 Receipt of an NOD 5-B-6
6 Multiple NOD Issues 5-B-10
7 Reviewing an NOD for Further Development 5-B-12
8 Exhibit 1: Appeal Process Request Letter 5-B-16
9 Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter 5-B-18
3. NOD Definition
Introduction This topic contains information about an NOD, including
• definition of an NOD
• requesting clarification from claimants, and
• a response to a notice of proposed adverse action.
Change Date December 10, 2009
a. Definition: Notice of Disagreement (NOD) A notice of disagreement (NOD) is a written communication from a claimant or his/her representative expressing
• dissatisfaction or disagreement with a decision, and
• a desire to contest the result.
Although no specific wording is required in the NOD, it must be in terms that can be reasonably interpreted as a disagreement with a decision and a desire for appellate review.
Note: A transcript of either a formal hearing or informal conference containing an expression of disagreement fulfills the requirement that the statement be “in writing.”
Reference: For more information on what constitutes an NOD, see 38 C.F.R § 20.201.
b. Requesting Clarification from Claimants If you are uncertain as to whether or not a letter from the claimant is an NOD, follow the procedure in M21-1MR, Part I, 5.B.6.b to request clarification from the claimant.
Continued on next page
3. NOD Definition, Continued
c. Response to Notice of Proposed Adverse Action Do not accept an NOD in response to a notice of proposed adverse action as a valid NOD.
Advise the beneficiary that a proposed adverse action is merely a preliminary action that is not appealable and that a notice of appellate rights will be furnished when a final decision is made.
Delete any Veterans Appeals Control and Locator System (VACOLS) record that was erroneously established.
4. Time Limits for Filing an NOD
Introduction An appellant must file an NOD within a specified time limit. This topic provides information on filing an NOD, including
• NOD time limits
• computing the NOD time limit
• informing the appellant of an NOD that was not timely filed, and
• handling a time limit extension request.
Change Date December 10, 2009
a. NOD Time Limits The table below describes the time limits for an appellant to file an NOD.
An NOD for … Must be filed …
a contested claim, including an apportionment claim 60 days from the date the Department of Veterans Affairs (VA) mailed the notification of the decision to the unsuccessful claimant.
References: For more information on
• contested claims, see M21-1MR, Part III, Subpart vi, 6, and
• apportionment claims, see M21-1MR, Part III, Subpart v, 3.
all other claims one year from the date VA mailed the notification of the decision to the claimant.
Continued on next page
4. Time Limits for Filing an NOD, Continued
b. Computing the NOD Time Limit When computing the NOD time limit
• exclude the first day of the specified period
• include the last day of the specified period, and
• if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.
If the postmark date is
• prior to the expiration of the NOD period
consider the NOD timely filed, and
retain the postmarked envelope, or
• not of record, presume the postmark date to be five days prior to the date VA received the NOD, excluding Saturday, Sundays, and legal holidays.
c. Informing the Appellant of an NOD That Was Not Timely Filed If an appellant files an NOD past the time limit
• inform the appellant via letter, and
• send VA Form 4107, Your Rights to Appeal Our Decision, with the letter.
The issue that an NOD was not timely filed is, itself, appealable to the Board of Veterans’ Appeals (BVA). See M21-1MR, Part I, 5.B.5.d.
d. Handling a Time Limit Extension Request An appellant may request an extension of the time limit for filing an NOD.
In this situation, the time limit may be extended if the appellant shows good cause. 38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.
An appellant may appeal a denial of a request for a time limit extension to BVA.
5. Receipt of an NOD
Introduction When an NOD is received, VA must review it to clarify any issues. This topic contains information on
• accepting an NOD
• receiving an NOD with a request for a hearing
• handling an NOD not timely filed
• handling disagreements regarding inadequate or not timely filed NODs, and
• new issues raised on an NOD.
Change Date December 10, 2009
a. Accepting an NOD Follow the steps in the table below to accept an NOD when it is received.
Step Action
1 Review the NOD.
Note: The correspondence accepted as the notice of disagreement will be stamped in the lower right corner on the top page as follows:
2 Establish a VACOLS record and diary within 7 days.
Notes:
• If it is unclear as to whether or not a letter from the claimant is an NOD, follow the procedures for clarification of issues in M21-1MR, Part I, 5.B.6.b.
• The NOD need not be associated with the claimant’s records prior to establishing the appeal record in VACOLS, or referral to the proper operating element.
Reference: For more information on VACOLS, see
• M21-1MR, Part I, 5.K, and
• the VACOLS User’s Guide.
3 Did the appellant request the Decision Review Officer (DRO) review process on his/her NOD?
• If yes, send the appellant the DRO Process Explanation Letter.
• If no
send the appellant the Appeal Process Request Letter
give the appellant 60 days from the date the letter is sent to elect the DRO review process. This time limit cannot be extended. (Note: Failure to reply to the letter is considered an election of the traditional appellate processing method and an indication that a DRO review process is not desired.)
References: For a sample of the
• DRO Process Explanation Letter, see M21-1MR, Part I, 5.B.8, and
• Appeal Process Request Letter, see M21-1MR, Part I, 5.B.9.
Continued on next page
5. Receipt of an NOD, Continued
b. Receiving an NOD with 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).
Note: This policy applies to both the DRO and the traditional appellate review process.
References: For more information on
• the filing of NODs and appeals, see 38 U.S.C. § 7105
• the DRO review process, see M21-1MR, Part I, 5.C
• hearings, see M21-1MR, Part I, 4, and
• sending an SOC, see M21-1MR, Part I, 5.D.
c. Handling an NOD Not Timely Filed If an NOD is received that is not timely filed, inform the appellant, in writing, that the
• decision became final at the expiration of the applicable time limit, and
• decision as to whether an appeal is timely filed is appealable.
Note: Send VA Form 4107 with the letter.
d. Handling Disagreements About Inadequate or Not Timely Filed NODs If the appellant 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
• disputes of NODs, see
38 C.F.R § 19.28, and
38 C.F.R § 19.34, and
• sending an SOC, see M21-1MR, Part I, 5.D.
Continued on next page
5. Receipt of an NOD, Continued
e. 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 provided there is no outstanding evidence identified by the appellant or the Veterans Service Representative (VSR), Rating Veterans Service Representative (RVSR), or DRO, and
• treat the new issues as a new claim, establish the appropriate end product (EP) control, and undertake the development needed to decide the new issue.
References: For more information on
• handling new issues, see M21-1MR, Part I, 5.E.24.
• including appeal rights with the decision of the new issue, see M21-1MR, Part III, Subpart v, 2.B.
6. Multiple NOD Issues
Introduction An NOD may be received that pertains to a decision with multiple issues. This topic contains information on
• multiple issue NODs, and
• clarifying multiple issue NODs.
Change Date December 10, 2009
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 does not require clarification.
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 appealed issues
track the issue(s) identified as being appealed as an NOD in VACOLS
go to M21-1MR, Part I, 5.B.7, 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.
Note: If the NOD contained issues that do not require clarification, explain in the letter that these issues are considered to be under appeal.
Continued on next page
6. Multiple NOD Issues, Continued
b. Clarifying Multiple Issue NODs (continued)
Step Action
2 • Contact the appellant by telephone or in writing to request clarification of which issue(s) is being appealed, and
• notify the appellant that if he/she fails to respond within the remainder of the appeal period, the earlier, unclear communication will not be considered an NOD.
Note:
• If the appeal period is over, or has less than 60 days remaining, give the appellant 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 appellant on VA Form 21-0820, Report of General Information.
3 Did the appellant send clarification within the given time limit?
• If yes
inform the appellant of the appealed issues
track the issue(s) as an NOD in VACOLS, and
go to M21-1MR, Part I, 5.B.7.
• If no, delete any VACOLS record that was erroneously established.
Notes:
• If the issue(s) requiring clarification is determined to be an NOD, the date of the NOD is the date of receipt of the initial written communication, not the date of clarification.
• If the appellant files a response past the time limit, follow the procedures in M21-1MR, Part I, 5.B.5.e.
Note: If, after following the procedures in the above table, it is still not clear whether the issue(s) can be considered an NOD, follow the procedures for an administrative appeal in M21-1MR, Part I, 5.J.49.
Reference: For more information on clarification of issues under appeal, see 38 C.F.R § 19.26 and 38 C.F.R § 19.27.
7. Reviewing an NOD for Further Development
Introduction Once an NOD has been received, further development of evidence may be required. This topic contains information on
• who reviews the claim
• VA’s duty to assist the appellant in obtaining any necessary evidence
• reviewing an NOD, and
• developing an NOD.
Change Date December 10, 2009
a. Who Reviews the Claim When an NOD is timely received, the VSR, RVSR, or DRO, as appropriate, reviews the claim to determine if
• the prior decision was correct, and
• any development or other action is needed.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
b. Duty to Assist Appellant in Obtaining Necessary Evidence VA has a duty to assist the appellant in obtaining the necessary evidence to substantiate his/her claim. This may include the following evidence:
• evidence from leads supplied by the appellant and his/her representatives
• service department and VA records, including records pertaining to injury or disease and treatment
• hospital reports
• reports of private medical examinations
• complete medical, surgical, and hospital clinical records
• the Counseling, Evaluation and Rehabilitation (CER) folder and training subfolder, if based on injury resulting from pursuit of a course of vocational rehabilitation, or in service-connection claims
• office records of physicians
• evidence relating to work history in a claim for permanent and total disability or a total rating based upon individual unemployability
• dental treatment folders, including the application for and denial of treatment in cases in which a dental condition is at issue
• medical reports from the Social Security Administration (SSA), and
• records related to eligibility for regular aid and attendance (A&A) or housebound status.
Reference: For more information on requesting non-Federal or private records, see M21-1MR, Part I, 1.C.6.
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 evidence required?
• If yes, go to M21-1MR, Part I, 5.B.7.d.
• If no, go to Step 3.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
c. Reviewing an NOD (continued)
Step Action
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 the duty to assist the appellant in obtaining necessary evidence, see M21-1MR, Part I, 5.B.7.b.
4 Correct any previous oversights that are discovered.
• Do not forward the case to BVA until all reasonable assistance has been given to the appellant and all necessary evidence that can be obtained by VA is on file, and
• Complete all development as quickly as possible to avoid undue delay.
Reference: For more information on the duty to assist the appellant in obtaining necessary evidence, see M21-1MR, Part I, 5.B.7.b.
5 Determine whether some other action is needed, such as a
• submission to the Veterans Service Center Manager (VSCM) or DRO with a request for the DRO appellate review process, or
• request for an advisory opinion.
Important: Ensure that the decision notice sent to the appellant clearly indicates that after such action, the
• decision was not made by BVA, and
• appellant still has the right to appeal.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
d. Developing an NOD Follow the steps in the table below to develop an NOD for further evidence.
Step Action
1 Request evidence.
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 his/her representative on the basis of the evidence of record, explaining which requested evidence was not received
take end product (EP) 172 or 174, and
allow the claimant to perfect the appeal.
Reference: For more information on sending an SOC, see M21-1MR, Part I, 5.D.
3 Did the evidence result in a complete grant of the benefits sought or did the appellant or his/her representative withdraw the NOD?
• If yes, close out any VACOLS controls.
• If no
issue an SOC
update VACOLS, and
take end product (EP) 172 or 174.
Note: Do not prepare an SOC until development is completed or the time limit for submission of evidence has expired.
Reference: For more information on
• sending an SOC, see M21-1MR, Part I, 5.D, and
• what EP credit to take, see M21-4, Appendix C.
8. Exhibit 1: Appeal Process Request Letter
Change Date December 10, 2009
a. Appeal Process Request Letter – Page 1 Page 1 of an example of the Appeal Process Request Letter is below.
Appeal Process Request Letter
DEPARTMENT OF VETERANS AFFAIRS
Regional Office
[date]
[appellant’s name]
[appellant’s address] In Reply Refer To:
[salutation]
We received your written notice of disagreement with the Department of Veterans Affairs (VA) decision of [date]. This letter describes what happens next.
Will VA try to resolve my disagreement?
This local VA office will try to resolve your disagreement through the Post-Decision Review Process. As part of this process, you must decide how you would like us to handle your appeal. You may choose to have a Decision Review Officer (DRO) assigned to your case or to follow the traditional appeal process.
How does the Decision Review Officer Process work?
Complete review: The DRO will review the materials in your VA claims folder, including evidence and arguments, and statements from your representative. This may lead the DRO to request additional evidence from you, your doctor or some other source. You may be asked to participate in an informal conference with DRO to discuss your case.
New decision: The DRO will then make a new decision. The DRO has the authority to grant benefits based on clear and unmistakable error, de novo review, or the receipt of new and material evidence. You will be notified of the decision and your appeal rights. If you are not satisfied with the DRO’s decision, you may then appeal, using the traditional appeal process.
How does the Traditional Appeal Process work?
Complete review: A VA staff member will check your file for completeness. Then a review will be made of your evidence and arguments, statements from your representative and any other information available in your claims folder. This may lead to a request for additional evidence from you, your doctor or other sources. You may be asked to clarify questions about your disagreement.
Continued on next page
8. Exhibit 1: Appeal Process Request Letter, Continued
b. Appeal Process Request Letter – Page 2 Page 2 of an example of the Appeal Process Request Letter is below.
Statement of the Case: If we cannot grant your appeal based on the review and an examination of any additional evidence, we will then prepare a Statement of the Case (SOC) and send you a copy. The SOC will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision. If you still do not agree with that decision and wish to continue your appeal, you need to submit a substantive appeal so that your case can be sent to the Board of Veterans’ Appeals. Instructions on how to file a substantive appeal will be provided in our letter notifying you of the decision.
May I be represented?
[use this paragraph if appellant has a representative.]
You designated [name] from [organization] to represent you in presenting your claim to VA. The DRO will work with this representative while trying to resolve your disagreement. If you have not already done so, you should contact your representative directly to discuss your case.
[use this paragraph if appellant does not have a representative.]
If you do not have a representative, it is not too late to choose one. An accredited representative of a recognized service organization may represent you in your claim for VA benefits without charge. An accredited attorney or an accredited agent may also represent you before VA, and may charge you a fee for services performed after the filing of a notice of disagreement. In certain cases, VA will pay your accredited agent or attorney directly from your past due benefits. For more information on the accreditation process and fee agreements (including filing requirements), you and/or your representative should review 38 U.S.C. §5904 and 38 C.F.R. §14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find the necessary power of attorney forms on this website, or if you ask us, we can send you the forms. You can also find the names of accredited attorneys, agents and service organization representatives on this website.
How do I select the Decision Review Officer process or traditional appeal process?
You must notify us within 60 days from the date of this letter whether you want to have your case reviewed by the Decision Review Officer process or by the traditional appeal process. If we do not hear from you within 60 days, your case will be reviewed under the traditional appeal process.
We hope we will be able to resolve your disagreement to your satisfaction. If you have questions about the information in this letter please call us at 1-800-827-1000.
9. Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter
Change Date December 10, 2009
a. DRO Process Explanation Letter – Page 1 Page 1 of an example of the DRO Process Explanation Letter is below.
DRO Process Explanation Letter
DEPARTMENT OF VETERANS AFFAIRS
Regional Office
[date]
[appellant’s name]
[appellant’s address] In Reply Refer To:
[salutation]
We received your election of the Decision Review Officer (DRO) process to handle your appeal. Our records show that you filed a notice of disagreement with the Department of Veterans Affairs (VA) decision of [date]. This letter describes what happens next.
Will VA try to resolve my disagreement?
This local office of VA will try to resolve your disagreement through the Post-Decision Review process. As part of this process, you have elected to have a DRO assigned to your case.
How does the Post-Decision Review Process Work?
Complete review: The DRO will check your file for completeness. Then a review will be made of your evidence and arguments, statements from your representative, and any other information available in your claims folder. This may lead to a request for additional evidence. You may be asked to participate in an informal conference by the DRO to clarify questions about your disagreement.
New decision: The DRO will then make a new decision. You will be notified of the decision and your appeal rights
Note: You are still entitled to a formal hearing to present evidence or testimony at any time during this process.
Continued on next page
9. Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter, Continued
b. DRO Process Explanation Letter – Page 2 Page 2 of an example of the DRO Process Explanation Letter is below.
May I be represented?
[use this paragraph if appellant has a representative.]
You designated [name] from [organization] to represent you in presenting your claim to VA. The DRO will work with this representative while trying to resolve your disagreement. If you have not already done so, you should contact your representative directly to discuss your case.
[use this paragraph if appellant does not have a representative.]
If you do not have a representative, it is not too late to choose one. An accredited representative of a recognized service organization may represent you in your claim for VA benefits without charge. An accredited attorney or an accredited agent may also represent you before VA, and may charge you a fee for services performed after the filing of a notice of disagreement. In certain cases, VA will pay your accredited agent or attorney directly from your past due benefits. For more information on the accreditation process and fee agreements (including filing requirements), you and/or your representative should review 38 U.S.C. §5904 and 38 C.F.R. §14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find the necessary power of attorney forms on this website, or if you ask us, we can send you the forms. You can also find the names of accredited attorneys, agents and service organization representatives on this website.
We hope we will be able to resolve your disagreement to your satisfaction. If you have questions about the information in this letter please call us at 1-800-827-1000.
Question
carlie
FROM:
M21-1MR Part 1, Chapter 5, Section B
Section B. Notice of Disagreement (NOD)
Overview
In this Section This section contains the following topics:
Topic Topic Name See Page
3 NOD Definition 5-B-2
4 Time Limits for Filing an NOD 5-B-4
5 Receipt of an NOD 5-B-6
6 Multiple NOD Issues 5-B-10
7 Reviewing an NOD for Further Development 5-B-12
8 Exhibit 1: Appeal Process Request Letter 5-B-16
9 Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter 5-B-18
3. NOD Definition
Introduction This topic contains information about an NOD, including
• definition of an NOD
• requesting clarification from claimants, and
• a response to a notice of proposed adverse action.
Change Date December 10, 2009
a. Definition: Notice of Disagreement (NOD) A notice of disagreement (NOD) is a written communication from a claimant or his/her representative expressing
• dissatisfaction or disagreement with a decision, and
• a desire to contest the result.
Although no specific wording is required in the NOD, it must be in terms that can be reasonably interpreted as a disagreement with a decision and a desire for appellate review.
Note: A transcript of either a formal hearing or informal conference containing an expression of disagreement fulfills the requirement that the statement be “in writing.”
Reference: For more information on what constitutes an NOD, see 38 C.F.R § 20.201.
b. Requesting Clarification from Claimants If you are uncertain as to whether or not a letter from the claimant is an NOD, follow the procedure in M21-1MR, Part I, 5.B.6.b to request clarification from the claimant.
Continued on next page
3. NOD Definition, Continued
c. Response to Notice of Proposed Adverse Action Do not accept an NOD in response to a notice of proposed adverse action as a valid NOD.
Advise the beneficiary that a proposed adverse action is merely a preliminary action that is not appealable and that a notice of appellate rights will be furnished when a final decision is made.
Delete any Veterans Appeals Control and Locator System (VACOLS) record that was erroneously established.
4. Time Limits for Filing an NOD
Introduction An appellant must file an NOD within a specified time limit. This topic provides information on filing an NOD, including
• NOD time limits
• computing the NOD time limit
• informing the appellant of an NOD that was not timely filed, and
• handling a time limit extension request.
Change Date December 10, 2009
a. NOD Time Limits The table below describes the time limits for an appellant to file an NOD.
An NOD for … Must be filed …
a contested claim, including an apportionment claim 60 days from the date the Department of Veterans Affairs (VA) mailed the notification of the decision to the unsuccessful claimant.
References: For more information on
• contested claims, see M21-1MR, Part III, Subpart vi, 6, and
• apportionment claims, see M21-1MR, Part III, Subpart v, 3.
all other claims one year from the date VA mailed the notification of the decision to the claimant.
Continued on next page
4. Time Limits for Filing an NOD, Continued
b. Computing the NOD Time Limit When computing the NOD time limit
• exclude the first day of the specified period
• include the last day of the specified period, and
• if the time limit expires on a Saturday, Sunday, or legal holiday, include the next workday in the computation.
If the postmark date is
• prior to the expiration of the NOD period
consider the NOD timely filed, and
retain the postmarked envelope, or
• not of record, presume the postmark date to be five days prior to the date VA received the NOD, excluding Saturday, Sundays, and legal holidays.
c. Informing the Appellant of an NOD That Was Not Timely Filed If an appellant files an NOD past the time limit
• inform the appellant via letter, and
• send VA Form 4107, Your Rights to Appeal Our Decision, with the letter.
The issue that an NOD was not timely filed is, itself, appealable to the Board of Veterans’ Appeals (BVA). See M21-1MR, Part I, 5.B.5.d.
d. Handling a Time Limit Extension Request An appellant may request an extension of the time limit for filing an NOD.
In this situation, the time limit may be extended if the appellant shows good cause. 38 C.F.R § 3.109 provides that a request to extend the time limit may be made either before or after the expiration of the NOD period, although this regulation does not define good cause.
An appellant may appeal a denial of a request for a time limit extension to BVA.
5. Receipt of an NOD
Introduction When an NOD is received, VA must review it to clarify any issues. This topic contains information on
• accepting an NOD
• receiving an NOD with a request for a hearing
• handling an NOD not timely filed
• handling disagreements regarding inadequate or not timely filed NODs, and
• new issues raised on an NOD.
Change Date December 10, 2009
a. Accepting an NOD Follow the steps in the table below to accept an NOD when it is received.
Step Action
1 Review the NOD.
Note: The correspondence accepted as the notice of disagreement will be stamped in the lower right corner on the top page as follows:
NOTICE OF DISAGREEMENT
RECORDED__________________________________________
[DATE]
Continued on next page
5. Receipt of an NOD, Continued
a. Accepting an NOD (continued)
Step Action
2 Establish a VACOLS record and diary within 7 days.
Notes:
• If it is unclear as to whether or not a letter from the claimant is an NOD, follow the procedures for clarification of issues in M21-1MR, Part I, 5.B.6.b.
• The NOD need not be associated with the claimant’s records prior to establishing the appeal record in VACOLS, or referral to the proper operating element.
Reference: For more information on VACOLS, see
• M21-1MR, Part I, 5.K, and
• the VACOLS User’s Guide.
3 Did the appellant request the Decision Review Officer (DRO) review process on his/her NOD?
• If yes, send the appellant the DRO Process Explanation Letter.
• If no
send the appellant the Appeal Process Request Letter
give the appellant 60 days from the date the letter is sent to elect the DRO review process. This time limit cannot be extended. (Note: Failure to reply to the letter is considered an election of the traditional appellate processing method and an indication that a DRO review process is not desired.)
References: For a sample of the
• DRO Process Explanation Letter, see M21-1MR, Part I, 5.B.8, and
• Appeal Process Request Letter, see M21-1MR, Part I, 5.B.9.
Continued on next page
5. Receipt of an NOD, Continued
b. Receiving an NOD with 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).
Note: This policy applies to both the DRO and the traditional appellate review process.
References: For more information on
• the filing of NODs and appeals, see 38 U.S.C. § 7105
• the DRO review process, see M21-1MR, Part I, 5.C
• hearings, see M21-1MR, Part I, 4, and
• sending an SOC, see M21-1MR, Part I, 5.D.
c. Handling an NOD Not Timely Filed If an NOD is received that is not timely filed, inform the appellant, in writing, that the
• decision became final at the expiration of the applicable time limit, and
• decision as to whether an appeal is timely filed is appealable.
Note: Send VA Form 4107 with the letter.
d. Handling Disagreements About Inadequate or Not Timely Filed NODs If the appellant 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
• disputes of NODs, see
38 C.F.R § 19.28, and
38 C.F.R § 19.34, and
• sending an SOC, see M21-1MR, Part I, 5.D.
Continued on next page
5. Receipt of an NOD, Continued
e. 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 provided there is no outstanding evidence identified by the appellant or the Veterans Service Representative (VSR), Rating Veterans Service Representative (RVSR), or DRO, and
• treat the new issues as a new claim, establish the appropriate end product (EP) control, and undertake the development needed to decide the new issue.
References: For more information on
• handling new issues, see M21-1MR, Part I, 5.E.24.
• including appeal rights with the decision of the new issue, see M21-1MR, Part III, Subpart v, 2.B.
6. Multiple NOD Issues
Introduction An NOD may be received that pertains to a decision with multiple issues. This topic contains information on
• multiple issue NODs, and
• clarifying multiple issue NODs.
Change Date December 10, 2009
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 does not require clarification.
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 appealed issues
track the issue(s) identified as being appealed as an NOD in VACOLS
go to M21-1MR, Part I, 5.B.7, 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.
Note: If the NOD contained issues that do not require clarification, explain in the letter that these issues are considered to be under appeal.
Continued on next page
6. Multiple NOD Issues, Continued
b. Clarifying Multiple Issue NODs (continued)
Step Action
2 • Contact the appellant by telephone or in writing to request clarification of which issue(s) is being appealed, and
• notify the appellant that if he/she fails to respond within the remainder of the appeal period, the earlier, unclear communication will not be considered an NOD.
Note:
• If the appeal period is over, or has less than 60 days remaining, give the appellant 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 appellant on VA Form 21-0820, Report of General Information.
3 Did the appellant send clarification within the given time limit?
• If yes
inform the appellant of the appealed issues
track the issue(s) as an NOD in VACOLS, and
go to M21-1MR, Part I, 5.B.7.
• If no, delete any VACOLS record that was erroneously established.
Notes:
• If the issue(s) requiring clarification is determined to be an NOD, the date of the NOD is the date of receipt of the initial written communication, not the date of clarification.
• If the appellant files a response past the time limit, follow the procedures in M21-1MR, Part I, 5.B.5.e.
Note: If, after following the procedures in the above table, it is still not clear whether the issue(s) can be considered an NOD, follow the procedures for an administrative appeal in M21-1MR, Part I, 5.J.49.
Reference: For more information on clarification of issues under appeal, see 38 C.F.R § 19.26 and 38 C.F.R § 19.27.
7. Reviewing an NOD for Further Development
Introduction Once an NOD has been received, further development of evidence may be required. This topic contains information on
• who reviews the claim
• VA’s duty to assist the appellant in obtaining any necessary evidence
• reviewing an NOD, and
• developing an NOD.
Change Date December 10, 2009
a. Who Reviews the Claim When an NOD is timely received, the VSR, RVSR, or DRO, as appropriate, reviews the claim to determine if
• the prior decision was correct, and
• any development or other action is needed.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
b. Duty to Assist Appellant in Obtaining Necessary Evidence VA has a duty to assist the appellant in obtaining the necessary evidence to substantiate his/her claim. This may include the following evidence:
• evidence from leads supplied by the appellant and his/her representatives
• service department and VA records, including records pertaining to injury or disease and treatment
• hospital reports
• reports of private medical examinations
• complete medical, surgical, and hospital clinical records
• the Counseling, Evaluation and Rehabilitation (CER) folder and training subfolder, if based on injury resulting from pursuit of a course of vocational rehabilitation, or in service-connection claims
• office records of physicians
• evidence relating to work history in a claim for permanent and total disability or a total rating based upon individual unemployability
• dental treatment folders, including the application for and denial of treatment in cases in which a dental condition is at issue
• medical reports from the Social Security Administration (SSA), and
• records related to eligibility for regular aid and attendance (A&A) or housebound status.
Reference: For more information on requesting non-Federal or private records, see M21-1MR, Part I, 1.C.6.
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 evidence required?
• If yes, go to M21-1MR, Part I, 5.B.7.d.
• If no, go to Step 3.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
c. Reviewing an NOD (continued)
Step Action
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 the duty to assist the appellant in obtaining necessary evidence, see M21-1MR, Part I, 5.B.7.b.
4 Correct any previous oversights that are discovered.
• Do not forward the case to BVA until all reasonable assistance has been given to the appellant and all necessary evidence that can be obtained by VA is on file, and
• Complete all development as quickly as possible to avoid undue delay.
Reference: For more information on the duty to assist the appellant in obtaining necessary evidence, see M21-1MR, Part I, 5.B.7.b.
5 Determine whether some other action is needed, such as a
• submission to the Veterans Service Center Manager (VSCM) or DRO with a request for the DRO appellate review process, or
• request for an advisory opinion.
Important: Ensure that the decision notice sent to the appellant clearly indicates that after such action, the
• decision was not made by BVA, and
• appellant still has the right to appeal.
Continued on next page
7. Reviewing an NOD for Further Development, Continued
d. Developing an NOD Follow the steps in the table below to develop an NOD for further evidence.
Step Action
1 Request evidence.
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 his/her representative on the basis of the evidence of record, explaining which requested evidence was not received
take end product (EP) 172 or 174, and
allow the claimant to perfect the appeal.
Reference: For more information on sending an SOC, see M21-1MR, Part I, 5.D.
3 Did the evidence result in a complete grant of the benefits sought or did the appellant or his/her representative withdraw the NOD?
• If yes, close out any VACOLS controls.
• If no
issue an SOC
update VACOLS, and
take end product (EP) 172 or 174.
Note: Do not prepare an SOC until development is completed or the time limit for submission of evidence has expired.
Reference: For more information on
• sending an SOC, see M21-1MR, Part I, 5.D, and
• what EP credit to take, see M21-4, Appendix C.
8. Exhibit 1: Appeal Process Request Letter
Change Date December 10, 2009
a. Appeal Process Request Letter – Page 1 Page 1 of an example of the Appeal Process Request Letter is below.
Appeal Process Request Letter
DEPARTMENT OF VETERANS AFFAIRS
Regional Office
[date]
[appellant’s name]
[appellant’s address] In Reply Refer To:
[salutation]
We received your written notice of disagreement with the Department of Veterans Affairs (VA) decision of [date]. This letter describes what happens next.
Will VA try to resolve my disagreement?
This local VA office will try to resolve your disagreement through the Post-Decision Review Process. As part of this process, you must decide how you would like us to handle your appeal. You may choose to have a Decision Review Officer (DRO) assigned to your case or to follow the traditional appeal process.
How does the Decision Review Officer Process work?
Complete review: The DRO will review the materials in your VA claims folder, including evidence and arguments, and statements from your representative. This may lead the DRO to request additional evidence from you, your doctor or some other source. You may be asked to participate in an informal conference with DRO to discuss your case.
New decision: The DRO will then make a new decision. The DRO has the authority to grant benefits based on clear and unmistakable error, de novo review, or the receipt of new and material evidence. You will be notified of the decision and your appeal rights. If you are not satisfied with the DRO’s decision, you may then appeal, using the traditional appeal process.
How does the Traditional Appeal Process work?
Complete review: A VA staff member will check your file for completeness. Then a review will be made of your evidence and arguments, statements from your representative and any other information available in your claims folder. This may lead to a request for additional evidence from you, your doctor or other sources. You may be asked to clarify questions about your disagreement.
Continued on next page
8. Exhibit 1: Appeal Process Request Letter, Continued
b. Appeal Process Request Letter – Page 2 Page 2 of an example of the Appeal Process Request Letter is below.
Statement of the Case: If we cannot grant your appeal based on the review and an examination of any additional evidence, we will then prepare a Statement of the Case (SOC) and send you a copy. The SOC will include a summary of the evidence, a citation to pertinent laws, a discussion of how those laws affect the decision, and a summary of the reasons for the decision. If you still do not agree with that decision and wish to continue your appeal, you need to submit a substantive appeal so that your case can be sent to the Board of Veterans’ Appeals. Instructions on how to file a substantive appeal will be provided in our letter notifying you of the decision.
May I be represented?
[use this paragraph if appellant has a representative.]
You designated [name] from [organization] to represent you in presenting your claim to VA. The DRO will work with this representative while trying to resolve your disagreement. If you have not already done so, you should contact your representative directly to discuss your case.
[use this paragraph if appellant does not have a representative.]
If you do not have a representative, it is not too late to choose one. An accredited representative of a recognized service organization may represent you in your claim for VA benefits without charge. An accredited attorney or an accredited agent may also represent you before VA, and may charge you a fee for services performed after the filing of a notice of disagreement. In certain cases, VA will pay your accredited agent or attorney directly from your past due benefits. For more information on the accreditation process and fee agreements (including filing requirements), you and/or your representative should review 38 U.S.C. §5904 and 38 C.F.R. §14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find the necessary power of attorney forms on this website, or if you ask us, we can send you the forms. You can also find the names of accredited attorneys, agents and service organization representatives on this website.
How do I select the Decision Review Officer process or traditional appeal process?
You must notify us within 60 days from the date of this letter whether you want to have your case reviewed by the Decision Review Officer process or by the traditional appeal process. If we do not hear from you within 60 days, your case will be reviewed under the traditional appeal process.
We hope we will be able to resolve your disagreement to your satisfaction. If you have questions about the information in this letter please call us at 1-800-827-1000.
9. Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter
Change Date December 10, 2009
a. DRO Process Explanation Letter – Page 1 Page 1 of an example of the DRO Process Explanation Letter is below.
DRO Process Explanation Letter
DEPARTMENT OF VETERANS AFFAIRS
Regional Office
[date]
[appellant’s name]
[appellant’s address] In Reply Refer To:
[salutation]
We received your election of the Decision Review Officer (DRO) process to handle your appeal. Our records show that you filed a notice of disagreement with the Department of Veterans Affairs (VA) decision of [date]. This letter describes what happens next.
Will VA try to resolve my disagreement?
This local office of VA will try to resolve your disagreement through the Post-Decision Review process. As part of this process, you have elected to have a DRO assigned to your case.
How does the Post-Decision Review Process Work?
Complete review: The DRO will check your file for completeness. Then a review will be made of your evidence and arguments, statements from your representative, and any other information available in your claims folder. This may lead to a request for additional evidence. You may be asked to participate in an informal conference by the DRO to clarify questions about your disagreement.
New decision: The DRO will then make a new decision. You will be notified of the decision and your appeal rights
Note: You are still entitled to a formal hearing to present evidence or testimony at any time during this process.
Continued on next page
9. Exhibit 2: Decision Review Officer (DRO) Process Explanation Letter, Continued
b. DRO Process Explanation Letter – Page 2 Page 2 of an example of the DRO Process Explanation Letter is below.
May I be represented?
[use this paragraph if appellant has a representative.]
You designated [name] from [organization] to represent you in presenting your claim to VA. The DRO will work with this representative while trying to resolve your disagreement. If you have not already done so, you should contact your representative directly to discuss your case.
[use this paragraph if appellant does not have a representative.]
If you do not have a representative, it is not too late to choose one. An accredited representative of a recognized service organization may represent you in your claim for VA benefits without charge. An accredited attorney or an accredited agent may also represent you before VA, and may charge you a fee for services performed after the filing of a notice of disagreement. In certain cases, VA will pay your accredited agent or attorney directly from your past due benefits. For more information on the accreditation process and fee agreements (including filing requirements), you and/or your representative should review 38 U.S.C. §5904 and 38 C.F.R. §14.636 and VA's website at http://www.va.gov/ogc/accreditation.asp. You can find the necessary power of attorney forms on this website, or if you ask us, we can send you the forms. You can also find the names of accredited attorneys, agents and service organization representatives on this website.
We hope we will be able to resolve your disagreement to your satisfaction. If you have questions about the information in this letter please call us at 1-800-827-1000.
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