What this means
m21-5:7.D.1 explains who may issue an appeal decision. In plain terms, the official guidance says the appeals activity responsible for the decision with which disagreement is expressed issues the appeal decision to the appellant. It also addresses VA must demonstrate in its decisions that it is compliant with this legally binding requirement. Include the following language below in all SOCs and supplemental statements of the case (SSOCs).
How this may help with a claim
Use m21-5:7.D.1 to audit how VA handled who may issue an appeal decision. 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 appeals activity responsible for the decision with which disagreement is expressed issues the appeal decision to the appellant. VA must demonstrate in its decisions that it is compliant with this legally binding requirement. 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: 1. Disclosing Evidence and Issuing an Appeal Decision
- Confirm that the record or notice addresses this source point: This topic includes general guidance for disclosing evidence and issuing appeal decisions, including
- Document how this stated step or exception applies: required language for liberally construing evidence and statements
Important limits
m21-5:7.D.1 explains VA guidance for who may issue an appeal decision; 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 appeals activity responsible for the decision with which disagreement is expressed issues the appeal decision to the appellant. When an appeal is filed in response to a contested claim decision, send the appeal decision to all parties involved in the contested claim decision and the authorized representative(s).
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Who May Issue an Appeal Decision
- m21-5:7.D.1
- Who May Issue
- Appeal Decision
- Disclosing Evidence Issuing Appeal
- This topic includes guidance
- issue appeal decision
- jurisdiction issuing appeal decision
Original VA guidance
The official VA text of this section
1. Disclosing Evidence and Issuing an Appeal Decision
Introduction
This topic includes general guidance for disclosing evidence and issuing appeal decisions, including
- who may issue an appeal decision
- jurisdiction for issuing an appeal decision
- joint issuance of an appeal decision
- required language for liberally construing evidence and statements
- matters not to be disclosed in an appeal decision
- disclosing appeal information to the appellant’s representative
- issuing an appeal decision in contested claims, and
- characterizing appeal issues.
Change Date
June 28, 2024
7.D.1.a. Who May Issue an Appeal Decision
The appeals activity responsible for the decision with which disagreement is expressed issues the appeal decision to the appellant.
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| If... | Then the appeal decision must be prepared by... |
|---|---|
| an appellant elects de novo review under 38 CFR 3.2600 on a notice of disagreement (NOD) | a Decision Review Officer (DRO), Veterans Service Center Manager (VSCM), Decision Review Operations Center Manager (DROCM), or Pension Management Center Manager (PMCM). |
| deciding a NOD under the traditional appeal process considering evidence submitted after a statement of the case (SOC) has been issued, or considering evidence developed in support of a remanded appeal | individuals designated by the VSCM, DROCM, or PMCM. |
References: For more information on
- issuing a decision when an appellant elects de novo review, see M21-5, Chapter 7, Section C
- considering evidence submitted after an SOC has been issued, see
- M21-5, Chapter 7, Section D.4.c, and
- M21-5, Chapter 7, Section E.2.a, and
- processing remanded appeals, see M21-5, Chapter 7, Section G.
7.D.1.b. Jurisdiction for Issuing an Appeal Decision
Use the table below to determine jurisdiction for issuing an appeal decision when the appealable issue results from a determination done for a special purpose.
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| When the appeal concerns … | Then jurisdiction falls under … | Reference |
| a regional office (RO) rating or administrative determination denying eligibility for Veterans Health Administration (VHA) benefits | VHA. | M21-1, Part XIII, Subpart i, 3.A |
| a VHA medical activity determination denying any of the following benefits: clothing allowance automobile adaptive equipment, and/or specially adapted housing | VHA. | M21-1, Part XIII, Supart i, 8.A.4.a M21-1, Part XIII, Subpart i, 2.A.7.a, and M21-1, Part XIII, Subpart i, 2.B.4.a |
| Department of Veterans Affairs (VA) medical center issues | VHA. | M21-1, Part XIII, Subpart i, 3.H.2.d |
| an administrative determination denying entitlement to any of the following benefits: compensation or pension issues automobile adaptive equipment specially adapted housing dependency, and/or apportionment | DROC. | M21-5, Chapter 7 |
| the Civilian Health and Medical Program of Veterans Affairs (CHAMPVA) | VHA. | M21-1, Part XIII, Subpart i, 3.H.2.d |
| a forfeiture decision | Central Office, Compensation Service. | M21-1, Part X, Subpart iv, 3.B.1.a |
| potential payment of attorney fees | DROC. | M21-5, Chapter 8, Section B, 4.a |
| a special allowance under 38 U.S.C. 1312(a) | the Philadelphia Pension Management Center for VA determinations, or Social Security Administration (SSA) for SSA determinations. | M21-1, Part XII, Subpart ii, 2.C.1.a |
| the appointment of a fiduciary | the fiduciary hub that appointed the fiduciary. | M21-1, Part X, Subpart ii, 6.C.1.a |
| a competency determination made by a fiduciary hub | the Veterans Service Center (VSC) co-located with the fiduciary hub. | M21-1, Part III, Subpart iv, 8.A.1.a |
| a competency determination made by a VSC | the VSC that made the competency determination. | M21-1, Part III, Subpart iv, 8.A.1.a |
7.D.1.c. Joint Issuance of an Appeal Decision
In some situations, two jurisdictions may have contributed to the decision being appealed.
Use the table below to determine joint issuance of an appeal decision when two or more jurisdictions contributed to a decision.
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| If the issue being appealed is … | And the … | Then the decision is issued jointly by the … |
|---|---|---|
| an unfavorable character of discharge (COD) decision | rating activity determined that the Veteran was not insane, and authorization and rating activities contributed to the decision | authorization and rating activities. |
| the validity of a debt | denial of waiver of the debt is appealed simultaneously | authorization activity and the Committee on Waivers and Compromises (COWC). |
7.D.1.d. Required Language for Liberally Construing Evidence and Statements
Veterans Benefits Administration policy is to consider all claims sympathetically or liberally by generously construing the evidence and associated claimant statements and resolving any ambiguities in the claimant’s favor, irrespective of whether the claimant is pro se (unrepresented) or represented by a Veterans Service Organization (VSO) or private attorney.
VA must demonstrate in its decisions that it is compliant with this legally binding requirement. Include the following language below in all SOCs and supplemental statements of the case (SSOCs).
VA, in determining all claims for benefits that have been reasonably raised by the filings and evidence, has applied the benefit-of-the-doubt and liberally and sympathetically reviewed all submissions in writing from the (Veteran/claimant) as well as all evidence of record.
Note: As of March 24, 2015, evidence by itself cannot constitute a claim and must be received on a prescribed form.
References: For more information on
- what is considered a claim, see
- 38 CFR 3.160, and
- 38 CFR 3.155
- liberally construing evidence, see Harris v. Shinseki, 704 F.3d 946 (Fed.Cir. 2013)
- the definition of inextricably intertwined, see M21-5, Chapter 7, Section A.1.g, and
- issues within scope, see
- M21-1, Part V, Subpart ii, 3.A.1.a
- M21-5, Chapter 7, Section E.3, and
- M21-5, Chapter 7, Section D.2.i.
7.D.1.e. Matters Not to Be Disclosed in an Appeal Decision
Do not include matters in an appeal decision of a sensitive nature that would be injurious to the physical or mental health of the appellant, including
- matters considered by responsible medical authority to be injurious to the appellant’s health
- references to
- a prognosis of “poor” or “terminal” or
- conditions of misconduct, unless the specific misconduct is relevant to the issue, or
- discussions of evidence in a way that might provoke feelings of hostility, resentment, or rejection on the part of the appellant or appellant's family.
References: For more information on disclosure of information in an appeal decision, see
- 38 U.S.C. 5701, and
- 38 CFR 20.1301.
7.D.1.f. Disclosing Appeal Information to the Appellant’s Representative
All matters can be disclosed to the appellant’s designated representative unless the appellant limited the representation. Therefore, in some cases, two different versions of the appeal decision may be prepared when it is not permissible to furnish full information to the representative.
Use the table below when disclosing appeal information to the appellant’s representative.
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| If the representation is… | And the… | Then… |
|---|---|---|
| unlimited | N/A | prepare a single appeal decision with copies for the appellant and the representative covering all issues on appeal. |
| is limited under 38 U.S.C. 7332 | issues on appeal are protected under 38 U.S.C. 7332 | prepare a separate appeal decision for the representative omitting issues not to be disclosed, and retain copies in the claims folder of both the full appeal decision released to the claimant as well as the limited version released to the representative. |
| is limited to specific issues | appeal covers more than the specific issues covered by the representation | prepare an appeal decision covering all issues on appeal for the claimant prepare a separate appeal decision for the representative containing only those issues covered by the representation, and retain copies in the claims folder of both the full appeal decision released to the claimant as well as the limited version released to the representative. |
References: For more information, on
- limited attorney representation, see M21-1, Part I, Subpart i, 2.A.2.d and
- records protected by 38 U.S.C. 7332, see M21-1, Part I, Subpart i, 2.B.2.d.
7.D.1.g. Issuing an Appeal Decision in Contested Claims
When an appeal is filed in response to a contested claim decision, send the appeal decision to all parties involved in the contested claim decision and the authorized representative(s).
Example: An SOC prepared in response to an apportionment NOD must be sent to the Veteran, the apportionment claimant, and both authorized representative(s).
References: For more information on
- contested claims, see M21-1 Part VI, Subpart iii, Chapter 3.B.1.a.
- appeals of decisions on contested claims, see M21-1, Part VI, Subpart iii, Chapter 3.C.6.a
- de novo review of contested claims, see M21-5, Chapter 7, Section C.4.d, and
- substantive appeal time limits for a contested claim, see
- 38 CFR 20.501, and
- M21-5, Chapter 6, Section B.3.d
7.D.1.h. Characterizing Appeal Issues
An appeal issue in any SOC and any subsequent SSOCs, must be characterized in such a way as to provide meaningful notice of the issues on appeal. The proper characterization of an appeal action reduces confusion and assists appellants when they present written and/or oral arguments before the Board of Veterans' Appeals (Board). Therefore, all SOCs and SSOCs must properly characterize appealed issues related to reductions, which should not be characterized as claims for increase or as a claim to reopen.
Example 1: An RO issues a rating decision and decision notice informing the Veteran that the evaluation of service-connected (SC) asthma is reduced from 30 percent to 10 percent effective June 13, 2018. The Veteran files an NOD disagreeing with the reduction in the evaluation. The DRO issues an SOC and characterizes the issue as Reduction in the rating for asthma from 30 to 10 percent, effective June 13, 2018.
Example 2: An RO issues a decision that results in a combined SC evaluation of 60 percent. The Veteran files an NOD disagreeing with the combined evaluation. The DRO issues an SOC and characterizes the issue as Calculation of the Veteran's combined disability rating, currently calculated as 60 percent.
References: For more information on
- SOCs, see
- 38 CFR 19.29, and
- M21-5, Chapter 7, Section D.3, and
- SSOCs, see
- 38 CFR 19.31, and
- M21-5, Chapter 7, Section D.4.