What this means
m21-5:7.F.3 explains certification process. In plain terms, the official guidance says public Law (PL) 112-154, Section 501 amended 38 U.S.C. 7105 to allow the Board to perform the initial review of evidence submitted It also addresses if an RO receives additional evidence after a substantive appeal is certified to the Board, the Board must perform the initial review of the evidence unless the appellant requests, in writing, that the RO performs the initial review.
How this may help with a claim
Use m21-5:7.F.3 to audit how VA handled certification process. Start with the decision date, the issue being reviewed, and the evidence VA was allowed to consider, then compare the record with this rule: Public Law (PL) 112-154, Section 501 amended 38 U.S.C. 7105 to allow the Board to perform the initial review of evidence submitted If an RO receives additional evidence after a substantive appeal is certified to the Board, the Board must perform the initial review of the evidence unless the appellant requests, in writing, that the RO performs the initial review. 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 Board 's authority to perform the initial review of evidence
- Confirm that the record or notice addresses this source point: when to certify an appeal
- Document how this stated step or exception applies: when not to certify an appeal
Important limits
m21-5:7.F.3 explains VA guidance for certification process; 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: Public Law (PL) 112-154, Section 501 amended 38 U.S.C. 7105 to allow the Board to perform the initial review of evidence submitted If an appeal is certified in error, submit a request to decertify the appeal in VACOLS to the BVA File Transfer mailbox (identified in Outlook as “BVA File Transfer” or BVA.FileTransfer@va.gov).
Search terms when useful
Phrases that may help when searching your claim file or this library.
- Certification Process
- m21-5:7.F.3
- Certifying Substantive Appeals
- Board authority perform initial
- when certify appeal
- when appeals certified error
- referring appeal certification
- reviewing appeal certification
Original VA guidance
The official VA text of this section
3. Certifying Substantive Appeals
Introduction
This topic contains information on certifying substantive appeals, including
- certification process
- the Board 's authority to perform the initial review of evidence
- when to certify an appeal
- when not to certify an appeal
- when appeals are certified in error
- referring the appeal for certification
- reviewing the appeal for certification, and
- procedure for certification of appeals.
Change Date
May 27, 2022
7.F.3.a. Certification Process
The Decision Review Officer (DRO), DROCM, VSCM, PMCM, or their designee is responsible for
- reviewing all appeals, and
- certifying each appeal as ready for review by the Board.
Proper review of the case includes verification that all
- issues on appeal have been decided and discussed, and
- appropriate development has been initiated and properly conducted.
7.F.3.b. The Board's Authority to Perform the Initial Review of Evidence
Public Law (PL) 112-154, Section 501 amended 38 U.S.C. 7105 to allow the Board to perform the initial review of evidence submitted
- by the appellant or appellant’s representative
- at the time of or after receipt of a substantive appeal.
Exception: If the appellant requests in writing that the RO performs the initial review, then the RO must issue a new decision based on the new evidence.
Notes:
- These provisions apply to substantive legacy appeals received on or after February 2, 2013.
- ROs are still responsible for conducting all development triggered by receipt of submitted evidence. Development may include, but is not limited to, requesting an examination or additional records identified by the appellant as pertaining to the appeal.
Reference: For more information about processing additional evidence submitted with or after a substantive appeal, see M21-5, Chapter 7, Section E.2.a.
7.F.3.c. When to Certify an Appeal
Certify the appeal after
- obtaining (or exhausting all efforts to obtain) all available and pertinent evidence, and
- making a decision on the issue(s), as required.
If the appeal is based on a rating or authorization decision, the appropriate activity should review the appeal to
- determine if all
- issues raised on appeal have been identified, and
- contentions and allegations made by the appellant or representative have been properly and adequately addressed, and
- confirm that all evidence is of record, including service records, if appropriate.
Important: If an RO receives additional evidence after a substantive appeal is certified to the Board, the Board must perform the initial review of the evidence unless the appellant requests, in writing, that the RO performs the initial review. This includes appeals that are certified but not yet transferred.
Note: VA medical records transmitted by Veterans Benefits Administration (VBA) from the Compensation and Pension Record Interchange (CAPRI) and uploaded to the appellant’s electronic claims folder (eFolder) are considered of record for certification purposes. Do not print copies of evidence available in the eFolder for inclusion in a paper claims folder.
References: For more information on
- automatic waiver of agency of original jurisdiction review of evidence, see
- M21-5, Chapter 7, Section E.2.a
- Public Law (PL) 112-154, and
- 38 U.S.C. 7105(e)
- using CAPRI for selecting and storing electronic medical records, see
- the CAPRI User Manual, and
- M21-1, Part III, Subpart ii, 1.A.2.h, and
- requirements for requesting records, see
- M21-1, Part III, Subpart ii, 1.A.2.h, and
- 38 CFR 3.159(c).
7.F.3.d. When Not to Certify an Appeal
In any case in which an appellant submitted
- additional evidence, and
- requests, in writing, for the RO to perform the initial review of the evidence
do not certify an appeal until the evidence has been reviewed and all necessary development actions and/or decisions are completed.
References: For more information on
- processing new evidence submitted with or after a substantive appeal, see M21-5, Chapter 7, Section E.2.a, and
- time limits for substantive appeals, see M21-5, Chapter 6, Section B.3.c and d.
7.F.3.e. When Appeals Are Certified in Error
If an appeal is certified in error, submit a request to decertify the appeal in VACOLS to the BVA File Transfer mailbox (identified in Outlook as “BVA File Transfer” or BVA.FileTransfer@va.gov).
Note: Include the appellant’s name and claim number in the request to the Board.
7.F.3.f. Referring the Appeal for Certification
The Claims Assistant or other RO employee
- updates VACOLS with receipt of a substantive appeal, and
- refers the appeal to the DRO, DROCM, VSCM, or PMCM, or designee.
Note: For the purposes of appeal certification, the DROCM, VSCM, or PMCM designee is an employee who is well versed in the appellate process and the issue under appeal.
7.F.3.g. Reviewing the Appeal for Certification
The DRO, DROCM, VSCM, PMCM, or designee
- reviews the claims folder
- verifies that all
- necessary development is completed
- issues on appeal have been decided
- non-appeal issues that are inextricably intertwined with appeal issues have been properly addressed, and
- the notice of disagreement (NOD), SOC, and/or SSOC are adequate
- completes the Appeal Certification to the Board Worksheet, if required, and
- completes the Appeals Checklist for Transfer of Certified Appeals to the Board, if required.
References: For more information on
- certification of appeals, see 38 CFR 19.35, and
- a sample of the Appeal Certification to the Board Worksheet, see M21-5, Chapter 7, Section F.9
7.F.3.h. Procedure for Certification of Appeals
Follow the steps in the table below to certify an appeal to the Board.
Scroll sideways to see the full table.
| Step | Action |
|---|---|
| 1 | Validate all VACOLS data is properly entered, including accredited representative, if applicable NOD date SOC date substantive appeal or VA Form 9, Appeal to Board of Veterans’ Appeals, date SSOC date(s), and Board hearing. |
| 2 | Verify all pertinent evidence has been obtained and duty to assist provisions met. This may be documented on the following appeals worksheet and checklists: Appeals In-Process Checklist Appeal Certification to the Board Worksheet, and Appeals Checklist for Transferring Certified Appeals to the Board of Veterans' Appeals. Notes: Use of the appeals checklists and worksheet is optional, but may be mandated based on local RO policy as a training tool for appeals processors or when other local needs arise. When completion of a certification checklist is locally required and the appeal is being processed in VBMS, upload the Appeal Certification to the Board Worksheet to the eFolder, but do not upload the Appeals In-Process Checklist or Appeals Checklist for Transferring Certified Appeals to the Board of Veterans Appeals to the eFolder. Instead, follow the instructions in the table below to document the checklists in VBMS notes. References: For more information on the Appeals In-Process Checklist, see M21-5, Chapter 7, Section F.8, the Appeal Certification to the Board Worksheet, see M21-5, Chapter 7, Section F.9, and the Appeals Checklist for Transferring Certified Appeals to the Board of Veterans' Appeals, see M21-5, Chapter 7, Section F.10. |
| 3 | Ensure all pertinent documents and evidence in support of the appeal have been uploaded into the eFolder, or associated with the paper claims file. Important: Ensure all VBMS documents are indexed with their appropriate document type identification. Pertinent documents include: NOD DRO election letter SOC VA Form 9 or substantive appeal SSOC(s) DRO hearing transcript or informal conference report power of attorney (POA) election for representation, and any other documents provided by the appellant or obtained by the RO in support of the appeal. References: For more information on transferring Federal tax information (FTI) to the Board, see M21-1, Part XIV, Chapter 4.B.2.k. |
| 4 | Are all pertinent appeal documents in VBMS? If yes, use the Caseflow Certification Program to genera te a completed VA Form 8, Certification of Appeal upload VA Form 8 to the eFolder, and certify the appeal in VACOLS. If no, manually complete VA Form 8 associate VA Form 8 with the claims folder, and input the certification date in VACOLS. Important: If the appeal record is contained in more than one electronic system or contained in both paper record and electronic system(s), add a VACOLS diary and VBMS note to that effect. If the appeal is enlarged to include additional issues, certify all inextricably intertwined issues simultaneously. Reference: For more information on the definition of inextricably intertwined, see M21-5, Chapter 7, Section A.1.g |
| 5 | Was a Board videoconference or Board hearing at a local office requested? If yes, mark the hearing request as READY in VACOLS, and proceed to the next step. If no, proceed to the next step. |
| 6 | Follow the steps for transferring the appeal in M21-5, Chapter 7, Section F.4. |