What this means
m21-5:7.C.3 explains DRO jurisdiction over appellate issues. In plain terms, the official guidance says the DRO must work in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case. It also addresses the DROCM, VSCM, or PMCM at each RO has the authority to grant the issue on appeal based on a de novo review or CUE without referral to the visiting DRO. The DROCM, VSCM, or PMCM is not permitted to delegate this authority to anyone else.
How this may help with a claim
Use m21-5:7.C.3 to audit how VA handled DRO jurisdiction over appellate issues. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: The DRO must work in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case. The DROCM, VSCM, or PMCM at each RO has the authority to grant the issue on appeal based on a de novo review or CUE without referral to the visiting DRO. 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: The DRO must work in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case.
- Confirm that the record or notice addresses this source point: The DRO must review the record to ensure that any issues that are within scope of the issue(s) on appeal are addressed.
- Document how this stated step or exception applies: definition of processing issues within the scope of the appeal, see M21-5, Chapter 7, Section D.2.i., and
Important limits
m21-5:7.C.3 explains VA guidance for DRO jurisdiction over appellate issues; 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: The DRO must work in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case. A Board decision is binding; therefore, the DRO is required to follow a Board decision for an individual claim and cannot recommend a change based on de novo review of that Board decision.
Search terms when useful
Phrases that may help when searching your claim file or this library.
- DRO Jurisdiction Over Appellate Issues
- m21-5:7.C.3
- DRO Jurisdiction Over
- Appellate Issues
- Jurisdiction Authority
- jurisdiction over appellate issues
- issues under jurisdiction
- jurisdiction visiting
Original VA guidance
The official VA text of this section
3. DRO Jurisdiction and Authority
Introduction
This topic contains information on DRO jurisdiction and authority, including
- DRO jurisdiction over appellate issues
- issues not under the jurisdiction of the DRO
- the jurisdiction of the visiting DRO
- DRO decisional authority
- DRO authority in subsequent hearing request
- DRO requirement to follow Board decisions, and
- prohibition on DRO bargaining.
Change Date
March 13, 2025
7.C.3.a. DRO Jurisdiction Over Appellate Issues
The DRO must work in partnership with the appellant and representative to resolve all issues covered by the NOD in accordance with the laws and facts in that particular case.
Notes: The DRO has
- de novo review jurisdiction only over legacy appeals for benefits governed by
- 38 CFR Part 3, and
- 38 CFR Part 4
- limited jurisdiction over a rating issue raised during an informal conference or formal hearing, provided the issue was part of the rating decision that is the subject of the hearing, and
- no jurisdiction over an appeal on a rating decision made by the DRO him/herself.
Important: The DRO must review the record to ensure that any issues that are within scope of the issue(s) on appeal are addressed.
References: For more information on the
- definition of processing issues within the scope of the appeal, see M21-5, Chapter 7, Section D.2.i., and
- legacy appeals, see 38 CFR 19.2
7.C.3.b. Issues Not Under the Jurisdiction of the DRO
The DRO does not have jurisdiction over
- disagreements to decisions made on or after February 19, 2019, to which the modernized review system applies
- Committee on Waivers and Compromises (COWC) issues
- loan guaranty
- insurance, and
- hearing requests concerning a denial of benefits from a medical determination rendered by a Department of Veterans Affairs (VA) medical activity for
- clothing allowance
- automobile and adaptive equipment, or
- specially adapted housing.
7.C.3.c. Jurisdiction of the Visiting DRO
If the DRO at the host RO participated in the decision being reviewed, a visiting DRO may be requested to hold hearings or conduct de novo review. The visiting DRO will render a decision in such disagreements, but not maintain jurisdiction of the appeal.
Important: The DROCM, VSCM, or PMCM at each RO has the authority to grant the issue on appeal based on a de novo review or CUE without referral to the visiting DRO. The DROCM, VSCM, or PMCM is not permitted to delegate this authority to anyone else.
Note: Submit a written request to obtain a visiting DRO to the OAR, P&F Service, or Compensation Service, as appropriate.
7.C.3.d. DRO Decisional Authority
The DRO may
- amend, reverse, or uphold a decision
- based on de novo review, or
- based upon new evidence
- exercise single-signature CUE authority.
Exceptions:
- Unless a CUE exists, the DRO cannot revise the decision in a manner that is less advantageous to the appellant than the decision under review.
- DROCM, VSCM, or PMCM signature is required for all decisions citing CUE if the decision involves
- reduction of SC evaluation(s), or
- severance of SC for a disability(ies).
Notes:
- The signature of the DROCM, VSCM, or PMCM is required on the rating even if the reduction or severance based on a CUE would not cause a reduction or termination of the total benefits paid.
- A DRO’s decision is final and binding on all ROs and is not subject to revision on the same factual basis, except by the Board or as provided under 38 CFR 3.105(a).
References: For more information on
- DRO decisional authority, see 38 CFR 3.2600, and
- CUEs, see M21-1, Part X, Subpart ii, 5.A.1.a.
7.C.3.e. DRO Authority in Subsequent Hearing Request
The DRO has no authority to participate in a formal hearing in which the same DRO participated in the decision now under appeal.
Example: If the DRO decided or provided the second signature on the rating decision on appeal, the DRO does not have authority to conduct a hearing requested in connection with the NOD.
References: For more information on authority to conduct hearings, see
- 38 CFR 3.103(d), and
- M21-1, Part X, Subpart v, 1.D.1.e
7.C.3.f. DRO Requirement to Follow Board Decisions
A Board decision is binding; therefore, the DRO is required to follow a Board decision for an individual claim and cannot recommend a change based on de novo review of that Board decision.
Exception: VBA is not permanently bound by a Board decision if VBA subsequently receives new and relevant evidence with the appropriate form, which requires a new decision.
7.C.3.g. Prohibition on DRO Bargaining
A DRO cannot bargain with an appellant or representative by requesting or requiring the appellant or representative to withdraw a claim or take any action in exchange for the granting of any benefit.
Example: A DRO cannot tell an appellant’s representative that VBA will grant a 50-percent evaluation for posttraumatic stress disorder (PTSD) if the appellant withdraws the claim for secondary SC for hypertension.
Important: A DRO is not prohibited, however, from
- discussing the lack of merit in any particular case, or
- from encouraging the claimant or representative to withdraw a meritless appeal.