What this means
m21-5:7.E.3 explains determining when to accept new issues raised on a substantive appeal. In plain terms, the official guidance says the table below describes when to accept claim or appeal issues raised on a substantive appeal. It also addresses result: The RO updates VACOLS with the date of the substantive appeal for the back and establishes an appeal EP.
How this may help with a claim
Use m21-5:7.E.3 to audit how VA handled determining when to accept new issues raised on 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: The table below describes when to accept claim or appeal issues raised on a substantive appeal. Result: The RO updates VACOLS with the date of the substantive appeal for the back and establishes an appeal EP. 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 when to accept new issues raised on a substantive appeal
- Confirm that the record or notice addresses this source point: example of new issue within scope of substantive appeal
- Document how this stated step or exception applies: 7.E.3.a. Determining When to Accept New Issues Raised on a Substantive Appeal
Important limits
m21-5:7.E.3 explains VA guidance for determining when to accept new issues raised on 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: The table below describes when to accept claim or appeal issues raised on a substantive appeal. I f a valid claim or appeal issue is raised with or after receipt of a substantive appeal, use the table below to determine how to handle the new issue(s).
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Determining When to Accept New Issues Raised on a Substantive Appeal
- m21-5:7.E.3
- Determining When Accept
- New Issues Raised
- Handling Issues Raised Substantive
- determining when accept issues
- example issue within scope
- processing inextricably intertwined issues
Original VA guidance
The official VA text of this section
3. Handling New Issues Raised on a Substantive Appeal
Introduction
This topic contains information about handling new issues raised on a substantive appeal, including
- determining when to accept new issues raised on a substantive appeal
- example of new issue within scope of substantive appeal
- processing inextricably intertwined issues on a substantive appeal, and
- example of processing inextricably intertwined issues.
Change Date
July 9, 2024
7.E.3.a. Determining When to Accept New Issues Raised on a Substantive Appeal
The table below describes when to accept claim or appeal issues raised on a substantive appeal.
Important: Do not add a new issue raised on a substantive appeal to a VACOLS record with the exception of intertwined individual unemployability as described in M21-1, Part VIII, Subpart iv, 3.C.3.b.
Scroll sideways to see the full table.
| Type of Issue | Date Substantive Appeal Received | Action Required |
|---|---|---|
| new appeal or claim | before March 24, 2015 | develop and decide the issue. |
| new appeal issue not raised on the prescribed form | on or after March 24, 2015 | consider the correspondence or evidence a request for notice of disagreement (NOD) and follow the procedures described in M21-5, Chapter 7, Section B.1.c. |
| new issue not raised on the prescribed form, and not within the scope of the issue on appeal | on or after March 24, 2015 | consider the correspondence or evidence a request for application and follow the procedures described in M21-1, Part II, Subpart iii, 1.A.16.a. |
| new issue not raised on a prescribed claim form, but considered within the scope of the issue on appeal | on or after March 24, 2015 | add special issue "Appeal Issue Intertwined," develop and decide the issue under the pending appeal EP. Note: Issue a decision for the within scope issue only when it can be favorably decided. |
References: For more information on
- considering issues within the scope of another claim or appeal, see
- 38 CFR 3.155(d)(2)
- M21-1, Part V, Subpart ii, 3.A.2.a
- M21-5, Chapter 7, Section D.2.i, and
- M21-5, Chapter 7, Section B.2.f - i, and
- processing new issues raised with a substantive appeal, see M21-5, Chapter 7, Section E.3.b.
7.E.3.b. Example of New Issue Within Scope of Substantive Appeal
Situation: A Veteran timely files a substantive appeal after the RO issued an SOC for the evaluation of his service-connected (SC) degenerative disc disease. On his substantive appeal, the Veteran states he has neuropathy in his left leg, which has been treated at the VA Medical Center.
Result: The RO updates VACOLS with the date of the substantive appeal for the back and establishes an appeal EP. The appeals activity obtains the relevant VA records, which establish the diagnosis of left leg neuropathy and are sufficient to establish the level of disability. The decision maker completes a rating decision awarding left leg neuropathy and issues an appeal decision on the back evaluation based on the new relevant VA records.
Rationale: As stated in 38 CFR 3.155(d)(2), VA will consider all lay and medical evidence of record in order to adjudicate entitlement to benefits for the claimed condition as well as entitlement to any additional benefits for complications of the claimed condition. As neurological conditions are complications contemplated in the evaluation criteria for the spine disability, the neuropathy is within scope of the appeal for an increased evaluation for the SC back disability.
7.E.3.c. Processing Inextricably Intertwined Issues on a Substantive Appeal
When a new appeal or claim is filed that is inextricably intertwined with the issues on a substantive appeal as defined in M21-5, Chapter 7, Section A.1.g, do not certify the substantive appeal until the inextricably intertwined claim/appeal has been decided.
I f a valid claim or appeal issue is raised with or after receipt of a substantive appeal, use the table below to determine how to handle the new issue(s).
Scroll sideways to see the full table.
| If the issue(s) is... | Then... |
|---|---|
| a new NOD inextricably intertwined with the issue(s) on a substantive appeal | do not send the case to the Board until the appeal of the new issue is perfected or completed, or the appellant fails to respond to the SOC/SSOC on the new issue within 60 days or the remainder of the one-year appeal period. Note: If the appellant does not perfect the appeal relating to the new issue, send the case to the Board once the appellate time limits for the new issue have elapsed. |
| a new NOD not inextricably intertwined with the issue(s) on a substantive appeal | certify and transfer jurisdiction of the appeal to the Board regardless of whether or not the appellant files a substantive appeal regarding the new issue. Important: If a determination is made that the issues are not inextricably intertwined, but the appellant alleges the issues are inextricably intertwined, any decision rendered on the new issue(s) should include a discussion of this determination. Reference: For more information on certification and transfer of the appeal, see M21-5, Chapter 7, Section F. |
| a non-appeal claim submitted on a standard claim form inextricably intertwined with the issue(s) on a substantive appeal | do not certify the appeal until the following is completed: establish claim with special issue "Appeal Issue Intertwined" complete any necessary development actions on the newly raised issue make a decision once all development is complete send the appellant VA Form 20-0998, and VA Form 21-0958, if VA decided the non-appeal compensation claim before February 19, 2019. |
| a non-appeal claim submitted on a standard claim form not inextricably intertwined with the issue(s) on a substantive appeal | continue processing the appeal complete any necessary development actions on the newly raised issue make a decision once all development is complete, and send the appellant VA Form 20-0998, and VA Form 21-0958, if VA decided the non-appeal compensation claim before February 19, 2019. |
References: For more information on
- handling the issue of individual unemployability when an appeal is pending, see M21-1, Part VIII, Subpart iv, 3.C.5.h, and
- p ower of attorney (POA) rights to notification, see M21-1, Part I, Subpart i, 2.B.1.a.
7.E.3.d. Example of Processing Inextricably Intertwined Issues
Situation: The appeals activity reviews a substantive appeal for service connection (SC) of erectile disorder for possible certification and notes a new claim was filed by the Veteran for SC of prostate cancer. The RO has not issued a decision on the new claim.
Result: The appeals activity defers certification procedures pending the outcome of the new claim for prostate cancer.
Rationale: The outcome of the appeal is so closely tied to the outcome of the newly raised issue of prostate cancer, that the appeal cannot be referred for a final decision by the Board until the new claim is decided.