What this means
m21-1:X.ii.1.A explains finality of decisions. In plain terms, the official guidance says under 38 CFR 3.104 a decision of a 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. It also addresses use the table below to determine the applicable definition of a finally adjudicated claim.
How this may help with a claim
Use m21-1:X.ii.1.A to audit how VA handled finality of decisions. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: Under 38 CFR 3.104 a decision of a 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. Use the table below to determine the applicable definition of a finally adjudicated claim. Cite the exact document and page when raising a factual or procedural error, and use the review rights in the actual notice for any deadline.
What to review in your file
- Check the file against this official condition: Under 38 CFR 3.104 a decision of a 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.
- Confirm that the record or notice addresses this source point: 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).
- Document how this stated step or exception applies: Use the table below to determine the applicable definition of a finally adjudicated claim.
Important limits
m21-1:X.ii.1.A explains VA guidance for finality of decisions; it does not guarantee an award or replace the statutes, regulations, binding decisions, and review instructions that control an individual claim. Conditions and exceptions still matter, including this source point: Under 38 CFR 3.104 a decision of a 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. Any finding favorable to the veteran or 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.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Finality of Decisions
- m21-1:X.ii.1.A
- Finality Decisions
- Binding Nature Decisions
- binding determinations
- significance binding determinations
- finally adjudicated claims
- binding finally adjudicated claims
Original VA guidance
The official VA text of this section
Overview
In This Section
This section contains the following topics:
Scroll sideways to see the full table.
| Topic | Topic Name |
|---|---|
| 1 | Binding Nature of Decisions |
| 2 | Favorable Findings |
1. Binding Nature of Decisions
Introduction
This topic contains general information on the binding nature of decisions, including
- binding determinations
- significance of binding determinations
- finally adjudicated claims
- binding but not finally adjudicated claims
- binding nature of Board of Veterans' Appeals (BVA) decisions, and
- revising binding decisions.
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.
Scroll sideways to see the full table.
| 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
- BVA decisions, see M21-5, Chapter 7, Section G.1
- the non-precedential value of BVA decisions, see 38 CFR 20.1303
- what to do with documents disagreeing with a BVA decision, see M21-5, Chapter 7, Section G.2.f
- determining jurisdiction for review of a CUE allegation, see M21-1, Part X, Subpart ii, 5.A.3, and
- filing a motion for reconsideration, see
- 38 CFR 20.1001, and
- M21-5, Chapter 7, Section G.2.d.
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.
Scroll sideways to see the full table.
| 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
- de novo review authority
- for legacy appeals, see
- 38 CFR 3.2600, and
- M21-5, Chapter 7, Section C.4
- for HLRs, see
- 38 CFR 3.2601, and
- M21-5, Chapter 5, Topic 1.a
- revising decisions based on CUE, see
- 38 CFR 3.105(a), and
- M21-1, Part X, Subpart ii, 5.A
- difference of opinion, see
- 38 CFR 3.105(b)
- M21-1, Part V, Subpart iv, 1.E.2.a, and
- M21-1, Part X, Subpart v, 1.A
- requests for an earlier effective date, see
- M21-1, Part V, Subpart ii, 4.A.7, and
- M21-1, Part X, Subpart ii, 5.A.2.c, and
- new and material evidence submitted during the legacy appeal period, see 38 CFR 3.156(b).
2. Favorable Findings
Introduction
This topic contains information on the binding nature of favorable findings, including
- binding nature of favorable findings, and
- overturning favorable findings.
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.