Is The Va Legally Bound By Its Own Regulations?

[Guest Morgan]

We often quote the M21-1 in claims research, but is the VA bound by all statements in its published circulars, pamphlets, manuals, etc? What about its own adjudication procedure manual?

While the VA is bound by its own regulations, that doesn't necessarily apply to all statements in the M21-1. So what part of the M21-1 is legally binding?

Here's a link that gives case law and extensive explanation regarding this. (The particular case is related to an asbestos exposure claim.)

http://www1.va.gov/ogc/docs/prc04-2000.doc

"QUESTIONS PRESENTED

A. Do provisions of paragraph 7.21 in Veterans Benefits Administration (VBA) Adjudication Procedure Manual M21-1 (Manual M21-1), Part VI, pertaining to claims involving asbestos-related diseases constitute regulations which are binding on the Department of Veterans Affairs (VA)?"

. . .

[wallyg]

Maybe the question should be -

Why does the VA call it's directive Manuals, when in Gov't speak Directives are Regulations and Manuals are strictly operational guidance?

38 CFR comprises the Regulations, M-1, M-21, etc are only guidance.

[Guest Berta]

right- but the M21s control the legal manifestations of 38 CFR.

If you read my posts today as how I got a CUE on a decision I got Friday from a DRO-

you will see that not only did I use 38 CFR 5107 (a) but also the DROs job description as within M21-1-

The DRO cued the decision and immediately expedited my claims (per my vet rep an hour ago) to a higher level on Wednesday at the VARO for a real de novo review. The DRO's 'reason' for the denial ,given to my vet rep,was so awful I am still reeling from it-it had nothing to do with what I got-in the decision-awful- B) incompetenct personified B) a wannabee DRO

nevertheless-

Also I use VA directives and Training letters to support VA claims and I send them the actual directive or Training letter.

It is all part of using their words against them- once they document how something should be done- hold them to it.

Make sure if you send them a 38 CFR citation that you check for any updates or changes. That goes for M21 too- I sent them the Dec 2004 change to this part of the DRO job description as to handling de nono reviews.

Edited September 23, 2005 by Berta

[Guest Jim S.]

In my bungled CUE claim, that the VARO took to be a New Reopened Claim with New and Material Evidence, stated it, as an elongated statement in support of my claim, as not germane to my claim, but rather an attempt to indict the Department of Veteran's Affairs for alleged mishandling of my claim in the past. (I thought that is what a CUE claim is basically for)

My statement covered each aspect of my claimed disabilities, with the CFR and other laws and guidlines in support of each one, Further stating how CUE was attached in each case.

The CUE claim is now under new review, Since my SSDI records were not in my claim file, as they should have been, since the VA had a duty to acquire these records and nothing in my records show that they made any attempt to aquire them, nor did they direct me to assist them in acquiring them, in their Duty to Assist letter they sent me. I'm surprised they didn't ad "Vilified" discribing how they mishandled my claim in the past.

Not that I think the SSDI records will have anything to help my claim, but it shows how the VARO does very little, if anything, to assist a Veteran to any and all possible records to support the Veteran, good or bad, for the claim.

I'm looking forward to what they have to say in this new review.

Jim S.

p.s. Checked on claim status, still pending was the answer, which probably means it's at the bottom of some pile of other records pending. B)

Edited September 23, 2005 by Jim S.

[Guest Berta]

If VA was aware you were on SSA and did not attempt to get those records nor advise you there was a problem getting them- AND if those records actually supported your claim for SC-that is a CUE.

I have a vet- VA denied in 1985. He just got 100% last year.

We nodded because they added wrong-he just got more money- we also filed CUE with the NOD as to 1985 final BVA decision.

They had the SSA records, as the decision states, or were aware of them -forget which ---but he gets SC today for what those SSA records said in 1985.

Same condition they denied for in 1985. That is a CUE.

Only if the outcome of a CUE alters the vet (meaning more money to the vet due to their past error) does the vet have a valid CUE claim.

[Alex]

Not so fast, Berta:

Failure to obtain SSA records is poart of the duty to assist, which is not CUE, and SSA records are not necessarily outcome=determintive. If is sounder to give up the earler effectiv dat and reopen the claim on new and material evidence.

Alex