Identifying a Substantive Appeal

What this means

m21-5:6.B.3 explains identifying a substantive appeal. In plain terms, the official guidance says a substantive appeal is one of the following documents containing the necessary information as provided in 38 CFR 19.22: It also addresses in order to be valid, a substantive appeal must be filed timely. An appellant is not required to complete a specific form in order to file a substantive appeal.

How this may help with a claim

Use m21-5:6.B.3 to audit how VA handled identifying a substantive appeal. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: A substantive appeal is one of the following documents containing the necessary information as provided in 38 CFR 19.22: In order to be valid, a substantive appeal must be filed timely. An appellant is not required to complete a specific form in order to file a substantive appeal. 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: determining if a substantive appeal is duplicative.
Confirm that the record or notice addresses this source point: In order to be valid, a substantive appeal must be filed timely. An appellant is not required to complete a specific form in order to file a substantive appeal.
Document how this stated step or exception applies: A signature is not required for proper completion of a substantive appeal.

Important limits

m21-5:6.B.3 explains VA guidance for identifying a substantive appeal; 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: A substantive appeal is one of the following documents containing the necessary information as provided in 38 CFR 19.22: Follow the steps in the table below to calculate the substantive appeal time limit.

Search terms when useful

Phrases that may help when searching your claim file or this library.

Identifying a Substantive Appeal
m21-5:6.B.3
Identifying Substantive Appeal
Reviewing Substantive Appeals
substantive appeal requirements
computing substantive appeal time
determining substantive appeal duplicative.
6.B.3.a. Identifying Substantive Appeal

Original VA guidance

The official VA text of this section

3. Reviewing Substantive Appeals

Introduction

This topic contains information pertaining to reviewing the submission of substantive appeals, including

identifying a substantive appeal
substantive appeal requirements
computing the substantive appeal time limit, and
determining if a substantive appeal is duplicative.

Change Date

April 22, 2022

6.B.3.a. Identifying a Substantive Appeal

A substantive appeal is one of the following documents containing the necessary information as provided in 38 CFR 19.22:

VA Form 9, Appeal to Board of Veterans’ Appeals
a statement at a formal hearing or informal conference reduced to writing, or
written correspondence indicating a desire to continue the appeal.

Note: The submission of a substantive appeal is also known as perfecting the appeal.

6.B.3.b. Substantive Appeal Requirements

In order to be valid, a substantive appeal must be filed timely. An appellant is not required to complete a specific form in order to file a substantive appeal.

Notes:

A signature is not required for proper completion of a substantive appeal.
If a substantive appeal requires clarification, refer it to the appeals team or other designated personnel.

References: For more information on

identifying a substantive appeal, see M21-5, Chapter 6, Section B.3.a, and
clarifying substantive appeal issues, see M21-5, Chapter 7, Section E.1.c.

6.B.3.c.

Computing the Substantive Appeal Time Limit

Determine the substantive appeal time limit by calculating the time period between

VA's receipt of the substantive appeal, and
the later of the
response period from the date a decision on the appeal was mailed to the appellant (statement of the case (SOC) or supplemental statement of the case (SSOC)), or
remaining appeal period, if any, from the date that VA mailed the decision notice being appealed.

Notes:

Generally, VA determines the date a substantive appeal is received using the date stamp, but VA must also consider the postmark date, if available, as noted in the table below, if the date stamp appears on its face to render the substantive appeal invalid.
A postmark refers to the date marked on an envelope by the mail carrier, while date stamp refers to the date of receipt marked on the mail when it is received by VA.

When computing the substantive appeal 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.

Follow the steps in the table below to calculate the substantive appeal time limit.

Scroll sideways to see the full table.

Step	Action
1	Determine the date VA mailed the decision notice to the appellant. Reference: For more information on determining the date VA mailed the decision notice, see M21-5, Chapter 6, Section B.1.i.
2	Determine the date VA mailed an appeal decision (SOC or SSOC) to the appellant by reviewing SOC or SSOC in the claims folder, and VACOLS to locate the date in the SOC field, and if applicable, the date in the SSOCS field. The table below provides additional considerations when determining the date VA mailed the SOC or SSOC to the appellant.
3	Use the table below for guidance on substantive appeal timeliness.
4	Review the date stamp on the substantive appeal. Did VA receive it timely? If yes, the substantive appeal is timely. Follow the procedures in M21-5, Chapter 6, Section B.4.a. If no, or the date stamp is illegible for nonexistent, proceed to the next step.
5	Consider the post-mark date as instructed in the table below. Considering the five-day presumption, did VA receive the substantive appeal timely? If yes, follow the procedures in M21-5, Chapter 6, Section B.4. If no, proceed to the next step.
5 6	Did VA grant the appellant an extension to file the substantive appeal? If yes, proceed to the next step. If no, proceed to Step 10
7	Did the claimant submit the substantive appeal within the extension period? If yes, consider the substantive appeal timely and follow the procedures detailed in M21-5, Chapter 6, Section B.4.c and d. If no, proceed to Step 8.
8	Did VA request the claimant to clarify issues on the substantive appeal? If yes, proceed to the next step. If no, proceed to Step 10.
9	Did the claimant provide the clarification within 60 days of the letter requesting it? If yes, consider the substantive appeal timely and follow the procedures detailed in M21-5, Chapter 6, Section B.4.c and d. If no, proceed to the next step.
10	For all appeals found not timely do not update the VACOLS record send the claimant the VA Form 9 Not Timely letter located in Letter Creator, and include a copy of the VA Form 20-0998 with the letter. Note: The decision that an appeal was not timely filed is appealable to the Board.

References: For more information on

appeal time limits, see 38 CFR 19.52(b) or 38 CFR 20.502(b)
date stamps, see M21-1, Part II, Subpart i, 2.B.1.d
definition of received date in the CM process, see M21-1, Part II, Subpart i, 1.A.1.c
requests for an extension of the substantive appeal time limit, see M21-5, Chapter 7, Section E.1.e.
when sworn statement may show that a substantive appeal was timely received even though a time-stamped copy of the substantive appeal is not of record. See Anania v. McDonough, Fed. Circ. No 2020-1086 (June 10, 2021)

6.B.3.d. Determining if a Substantive Appeal Is Duplicative

Before updating VACOLS upon receipt of a substantive appeal, review the issues listed on the ISSUES tab of any pending VACOLS records to verify it does not duplicate a pending appeal.

Use the table below to determine if an otherwise timely substantive appeal duplicates a pending appeal.

Scroll sideways to see the full table.

If the substantive appeal contains...	Then...
only issues listed in a VACOLS record in ADV (SOC) status	follow the substantive appeal processing steps in M21-5, Chapter 6, Section B.4.a.
only the same issue(s) as a VACOLS record in ADV (Form 9) or ADV (SSOC) status	refer the appeal to the appeals team based on established workload management procedures.
both new appellate issues, and issues already pending in a VACOLS record in ADV (Form 9) or ADV (SSOC) status, and the new issues are part of the same VACOLS record	establish an EP 170, and send an e-mail to the coach of the appeals team, or other designated personnel, to review the correspondence and determine the next appropriate action.
both new appellate issues, and issues already pending in a VACOLS record in ADV (Form 9) or ADV (SSOC) status, and the new issues are part of a different VACOLS record in ADV (SOC) status	follow the substantive appeal processing steps for the new issues in M21-5, Chapter 6, Section B.4.a.
issues not covered in one of the above scenarios	establish an EP 170, and send an e-mail to the coach of the appeals team, or other designated personnel, to review the correspondence and determine the next appropriate action.