BVA and M21-1MR

[Berta 4,215]

This is to correct some additional wrong advice here in the  recent Closed topic.

I have advised many times to use any applicable provision in M21-1MR if it can help your claim.I  always use it myself, in CUE or any other matter that brings more icing to the cake.

You can use it to support any VARO decisions and also be assured that the BVA will consider it. Make sure the specific part of M21-1MR you use has not changed, over the years.

The Mr1-1MR gives dates of changes as well as superb citations for established VA case law, such as CAVC decisions, that you can also access and use , if that will support your claim.

https://www.index.va.gov/search/va/bva_search.jsp?QT=M21-1MR&EW=&AT=&ET=&RPP=10&DB=2020&DB=2019&DB=2018&DB=2017&DB=2016&DB=2015&DB=2014&DB=2013&DB=2012&DB=2011&DB=2010&DB=2009&DB=2008&DB=2007&DB=2006&DB=2005&DB=2004&DB=2003&DB=2002&DB=2001&DB=2000&DB=1999&DB=1998&DB=1997&DB=1996&DB=1995&DB=1994&DB=1993&DB=1992

as the search above states:

Page 1 of 10407 results — searched 1228302   (1992 to 2020 BVA decisions)

Query: (m21-1mr)

[Vync 2,285]

I am glad the VA started posting changes to M21-1 online a few years ago. They can be found below the articles under "Attachments" and are usually broken out into key and historical changes.

Important!
M21-1 changes only go back so far. It's not like the Federal Register where you can track down every possible change to the laws if you are determined enough to do it. If someone is interested in learning about changes prior to when they were posted online, a FOIA request may be required. Old M21-1 content might not be available, even via FOIA, due to document retention and purging guidelines.

 

Here's a good example of how I used M21-1 in responding to a VA rating decision:

In Fall 2019, I filed a CUE and the rating decision was received in Jan 2020. It had a very brief rating narrative that failed to address any the evidence or contentions I made. Last month, I submitted an HLR/CUE on failure to properly apply 38 CFR, but also because they failed to properly follow "M21-1, Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative".

It is important to know the VA has two styles of claim rating narratives: short and long form. In my case, they used the short form. However, they are required to use the long-form rating narrative for HLR, CUE, and a lot of other situations to "address all pertinent evidence and all of the claimant's contentions".

M21-1, Part III, Subpart iv, Chapter 6, Section C - Completing the Rating Decision Narrative
https://www.knowva.ebenefits.va.gov/system/templates/selfservice/va_ssnew/help/customer/locale/en-US/portal/554400000001018/content/554400000014206/M21-1,-Part-III,-Subpart-iv,-Chapter-6,-Section-C---Completing-the-Rating-Decision-Narrative

[GBArmy 1,436]

Vync You are one smart Dude. How long have you been at this, really?

[Vync 2,285]

16 minutes ago, GBArmy said:

Vync You are one smart Dude. How long have you been at this, really?

I have been dealing with the VA system since 1995, but must give credit to @Berta's posts here on Hadit.com. I learned what M21-1 was by reading her posts.

In 2013, I was granted P&T on appeal to a DRO and found the rating decision letter was considerably more detailed than any of my prior decisions. It left me wondering why it were so thorough, but all of my prior decisions were maybe one or two brief and/or vague paragraphs.

After my heart attack in 2019, I decided to file CUEs on two prior decisions that were riddled with errors. While researching, I vaguely remember a BVA decision overturning a VARO denial of CUE because the VARO failed to follow M21-1 and adequately explain the evidence and claimant's contentions. The BVA chalked it up to the VARO failing to provide the veteran with sufficient information necessary to formulate an appeal or something like that. The VARO just simply said "nope", but the BVA required them to explain how, why, and answer all the other issues raised by the veteran.

It didn't take much effort to find the above linked article on the M21-1 web site. After reading it thoroughly, it became evident why the DRO narrative was so well written.

If the VA can use their regulations to deny veterans, we can use them to point out where they went wrong, especially when an internal policy or procedure is counter to what is clearly stated in laws and regulations. Honestly, I would focus any CUE effort first towards the US Code and 38 CFR, which are the actual laws. I just tossed M21-1 in as icing on the cake to show the VA couldn't even process my CUE correctly and simply dismissed my arguments without consideration. However, I have never had the need to use M21-1 as a standalone basis, so I cannot speak to that from personal experience.

M21-1 is merely an amalgamation passing under the guise of an adjudication procedure manual. It tells the VA how to do their job in the light of laws, regulations, and court precedent rulings. With changing laws, regulations, and settled case law, someone at the VA has the unfortunate job of keeping track of it all.
  Laws and regulations are subject to a public comment period, but M21-1 is not. The VA can change it whenever they want. Precedent cases like DeLuca and Nehmert are well-cited. M21-1 tells the VA how to apply them in certain circumstances. It is kind of like if a law clearly states the sky is light during the day and dark at night, M21-1 cannot supersede that by saying it is only blue on Mondays and green on Wednesdays. Keep in mind I am not an expert, but have and am still learning about it.

 

[kanewnut 101]

18 minutes ago, Vync said:

If the VA can use their regulations to deny veterans, we can use them to point out where they went wrong, especially when an internal policy or procedure is counter to what is clearly stated in laws and regulations.

I have had to use this for my TDIU. They have repeatedly used the fact that I quit to deny me. 

IV.ii.2.F.4.c.  Factors Not Affecting IU Determinations
 

Determine whether the severity of the SC disabilities precludes the Veteran from securing or following substantially gainful employment. 
 
The following factors have no bearing on a determination of whether SC disability renders a Veteran unemployable:
age
NSC disabilities
injuries occurring after military service
availability of work, or
voluntary withdrawal from the labor market.

[broncovet 4,245]

In the military, they taught us a "chain of command".  VA, likewise has a chain of command.  In reference to regulations, here it is:

1.  USC (United States Code.  These are the regulations.

2.  38CFR  Combined Federal Regulations

3.  M21-MR is the "compensation and pension manual rewrite"

.  

    In a similar way, the courts have a chain of command:  

1.  US Supreme Court

2.  Federal District Court

3.  CAVC

4.  BVA

5 Regional Office decisions which include "initial decision" HLR, SCL, and the older DRO.  Some issues caqn be addressed and resolved at the VARO with HLR or SCL.

    Personally, I recommend you consider "the order I listed".  In other words,  Check to see if the supreme  court decided something on it, then the Federal Circuit, the CAVC, and last but not least the BVA.  Likewise, your safest bet is to see if USC addresses your issue first, next the CFR and lastly the M21 MR.  

    The Court of Veterans claims for example, is not "bound" by the M21 MR..In fact, its the other way around.  If the court makes a Panel or En Banc decision, the M21 MR will often be modified to accomodate that decision.  Example:  Howelll.  Prior to Howell, the VA loved to deny Veterans SMC S (housebound) if the Veteran showed up for the housbound exam.  The VA alleged, "gee, if he came to the hospital for an exam, then he cant be housebound".  Howell showed that was in accurate, and the M21MR was changed to reflect Howell. 

 

     Since the CAVC is not bound to the authors interpretation of the "compensation and pension manual rewrite" (M21-MR), I personally do not recommend citing this UNLESS USC, 38CFR and case law are silent.  In other words cite M21 MR or BVA opinions LAST, only after you have checked case law, (which includes CAVC precedential decision, Federal Circuit and Supreme Court cases), OGC opinions (the VA lawyers formal opinions), in no small part because the CAVC is not bound to the M21 MR, but rather, the M21 MR is subject to review by the CAVC.  This is, of course, just my lay opinion.  

      I think Berta was referring to me, and thank you for allowing me to clarify my position on the M21 MR.  Its okay to cite it, and that even works..some times.  But, when you can, try the USC, 38 CFR, OGC or case law first and only cite M21 MR if you these are silent on the issue.  

Edited May 5, 2020 by broncovet

[Buck52 3,235]

broncovet

Through out all you just mention how would a veteran go about changing a decision (EED) that was based on typo error?

What is the defence when there are typo errors on a veterans rating sheets and award letter?  that would change the out come of his EED if these typo errors were corrected  (File CUE?)M21-MR1 HELP WITH THAT?

IJUST HOPE THE AVERAGE VETERAN CAN UNDERSTAND WHAT YOU JUST MENTION ( ITS SOME WHAT CONFUSING.)

Member kanewnut discussion of the M 21MR 1 Manual is a little More down to earth and  we can understand what he mention.

Maybe an older season veteran like your self being on hadit for years have learn all of this but as for as the Average veteran filing his claims this is only confusing to him  and I think a lot of the other members will agree  this is much to for advanced for the Average veteran to understand.

 This would Be a good discussion for you and Ms Berta  and maybe some well advance Attorney's and Accredited VA Claims Agents.

Edited May 5, 2020 by Buck52

[kanewnut 101]

31 minutes ago, Buck52 said:

(File CUE?)M21-MR1 HELP WITH THAT?

M21-1, Part III, Subpart iv, Chapter 5, Section C - Effective Dates 

9.  Claims for Earlier Effective Dates
 

[Buck52 3,235]

13 minutes ago, kanewnut said:

M21-1, Part III, Subpart iv, Chapter 5, Section C - Effective Dates 

9.  Claims for Earlier Effective Dates
 

Thanks Kanewnut

But it fails to mention anything about  typo errors  on dates involved  for a EED.??What the Defence would be for the Veteran?

[Buck52 3,235]

However I found this under #8

under M21-1, Part III, Subpart iv, Chapter 5, Section C - Effective Dates 

Note:  Because the Veteran claimed an earlier effective date for pension under liberalizing legislation, VA must readjudicate the claim based on the facts found.  VA has no authority to pick and choose the award effective date.  The Veteran has the choice to claim an earlier effective date under liberalizing legislation.  Therefore, if a claim is submitted, VA must readjudicate the claim using all of the facts and information submitted by the Veteran.  This would include counting all reported income and considering all allowable medical expenses applicable during the liberalized period.

Not so sure this would apply for typo errors?

[Vync 2,285]

@Buck52 About 10 years ago, I received an incorrect rating due to a typo error in a claim involving ROM. The C&P exam notes were correct, but somehow the VARO added an extra zero to the end of one measurement. I thought something was odd and I double-checked. At the time, we could submit requests for reconsideration. They corrected the value and rated me properly in about three weeks. In this case, it was an outcome determinative error because the actual result would have been different if not for the error.

I had one claim come back recently with a typo referring to the incorrect 38 CFR regulation, but the actual quoted text was correct. In this case, this example of an error is not outcome determinative because it the outcome would have remained the same error or not.

Nowadays, I assume typos could be handled via supplemental/HLR or potentially CUE requests depending on who you ask. For your question, I assume it would also depend on the exact typo involving an effective date. If they typo'd an effective date, and if not for the error, you could have had an earlier effective date, then it very well could be outcome determinative.