Handling Vacated Decisions

1. Reviewing and Processing Board Decisions

Introduction

This topic contains information on reviewing and processing Board decisions, including

• handling vacated decisions
• handling Board decisions on a clear and unmistakable error (CUE)
• the Board’s authority to review evidence that was not considered by the regional office (RO)
• determining when an examination is needed for Board grants
• reviewing the claims folder and/or implementing the Board decision
• ensuring the appellant received the decision
• determining the effective date for a grant of benefits by the Board
• handling a subsequent claim received after a Board decision
• subsequently raised individual unemployability (IU), and
• processing Board requests for quality assurance records.

Change Date

May 15, 2025

7.G.1.a. Handling Vacated Decisions

If the Board grants a motion for reconsideration (MFR), a motion to vacate, or a motion for revision based on clear and unmistakable error (CUE), the action has the effect of vacating the Board’s original decision(s) on the issue(s).

In this case, the legacy appeal will again stand in an “undecided status” and the Board will consider all relevant evidence received since the regional office (RO) decision. The RO will take no action to implement the vacated decision.

7.G.1.b. Handling Board Decisions on a CUE

Under 38 CFR 3.105(a), a CUE concerning a final unappealed RO decision may not be considered when the Board has reviewed the entire record of the claim and has decided to continue the denial of the previously unappealed decision.

After the Board affirms the prior denial of benefits, the claimant must receive a

• decision notice that includes a notice of appellate rights, and
• statement of the case (SOC) that includes a citation to VAOPGCPREC 14-1995.

Important: The Board has the authority to determine, on a de novo basis, whether a claim has been properly reopened, and to reverse any finding as to whether new and material evidence exists to reopen the claim.

For example: The Veteran files a claim raising allegations of CUE in a 1976 RO denial of service connection. The Veteran did not appeal the 1976 decision, and it became final. The Veteran reopened the claim in 1979 by submitting new and material evidence. The RO denied the reopened claim in 1979, and the Veteran appealed to the Board.

In 1981, the Board, after reviewing the evidence of record, denied service connection. In 1986, upon reconsideration, the Board affirmed the 1981 decision, concluding that the decision did not involve obvious error and is final. The Veteran then claimed CUE in the original, 1976, RO decision.

ROs do not have jurisdiction to review a claim of CUE in an unappealed rating decision if, following reopening of the claim, a later Board decision included a review of the entire record and affirmed the prior denial of benefits in the unappealed decision.

Reference: For more information on determining jurisdiction of CUE claims, see VAOPGCPREC 14-199 5.

7.G.1.c. Board Authority to Review Evidence That Was Not Considered by the RO

The Board has the authority to consider new evidence without remanding the case to the RO for initial consideration or obtaining the appellant’s waiver of the right for initial consideration by the RO.

Reference: For more information on the Board’s authority to consider additional evidence that was not previously considered by the RO, see

• the former 38 U.S.C. 7105(e)
• M21-5, Chapter 7, Section F, 3.b, and
• Public Law (PL) 112-154, Section 501.

7.G.1.d. Determining When an Examination Is Needed for Board Grants

When effectuating a grant of service connection (SC), the medical and lay evidence in the claims folder must be reviewed to determine if it is sufficient to establish the appropriate level of disability evaluation for the period of entitlement covered by the grant of benefits. If the evidence is not sufficient to establish a current evaluation, an adequate examination must be obtained. All evidence of record should be reviewed in the event that a staged rating is required.

Note: If the evidence of record is insufficient to establish an appropriate evaluation, service connection should be granted while the issue of evaluation is deferred for an examination, and the End Product (EP) continued.

References: For more information on

• determining when an examination is needed, see
• 38 CFR 3.159(c)(4)
• 38 CFR 3.326, and
• M21-1, Part IV, Subpart i, 2.A.1.f
• disability evaluations, see 38 CFR 4.1
• determining effective dates for Board grants, see M21-5, Chapter 7, Section G, 1.g, and
• Partial rating decisions, see M21-1, Part V, Subpart ii, 3.B.1.b.

7.G.1.e. Reviewing the Claims Folder and/or Implementing the Board Decision

When a decision has been made, the Board returns the claim to the Decision Review Operations Center (DROC) or the RO for review of the claims folder and implementation of the decision, if necessary.

Important: The assigned DROC or RO should implement the Board’s grant or partial grant of benefits in any favorable decision before initiating development of the remand.

Use the table below when reviewing the claims folder and/or implementing the Board’s decision.

Scroll sideways to see the full table.

References: For more information on

• determining when an examination is needed in a Board grant, see M21-5, Chapter 7, Section G, 1.d
• DROC jurisdiction of remanded appeals, see M21-5, Chapter 7, Section G, 3.b, and
• handling claims folders after a Board decision, see M21-5, Chapter 6, Section C, 2.

7.G.1.f. Ensuring the Appellant Received the Decision

When reviewing folders returned by the Board, ensure that the Board’s decision was mailed to the appellant’s current address.

If the decision was not mailed to the appellant’s current address

• mail a printed or photocopy of the decision to the most recent address of record
• update the appellant’s new address in
• the Veterans Appeals Control and Locator System (VACOLS)
• the Veterans Benefits Management System (VBMS), or
• Share
• annotate the decision with the new address and the date it was remailed; however,
• do not, under any circumstances, change the date stamped on the first page of the decision.

References: For more information on

• annotating a document in VBMS, see the VBMS User Guide, and
• updating an address in VBMS, see M21-1, Part II, Subpart iii, 3.B.1.b, and
• updating an address in VACOLS, see the VACOLS User Guide, Part 2.

7.G.1.g. Determining the Effective Date for a Grant of Benefits by the Board

When a Board grant does not prescribe a specific disability evaluation and/or effective date, the RO or DROC must review the appeal record and take jurisdiction of these downstream issues.

To determine the effective date for a grant of benefits by the Board, take the steps in the following table.

Note: Use the VBMS-Rating (VBMS-R) embedded Effective Date Builder tool based on the effective dates rules in 38 CFR 3.400.

Scroll sideways to see the full table.

References: For more information on

• effective dates of grants involving
• claims for disability compensation generally, see M21-1, Part V, Subpart ii, 4.A.1.a
• communication of an intent to file and informal claims received prior to March 24, 2015, see M21-1, Part II, Subpart iii, 2.H.1.a
• CUE, see 38 CFR 3.400(k)
• reductions in compensation under 38 CFR 3.105(e), see M21-1, Part X, Subpart ii, 4.A.1.j
• liberalizing laws or regulations, see M21- 1, Part V, Subpart ii, 4.A.1.a
• the Fully Developed Claim Program, see M21-1, Part V, Subpart ii, 4.A.1.h, and
• downstream issues, see M21-5, Chapter 7, Section A, 1.f.

7.G.1.h. Handling a Subsequent Claim Received After a Board Decision

To file a claim on the same factual basis that has been finally disallowed by the Board, a claimant must submit or identify new and relevant evidence on decisions made on or after February 19, 2019. The new and material evidentiary standard applies for those under the legacy system.

Reference: For more information on

• new and relevant evidence, see M21-1, Part II, Subpart iii, 2.B.1.e, and
• new and material evidence, see M21-5, Chapter 7, Section J, 4

7.G.1.i. Subsequently Raised IU

The Board may determine the issue of entitlement to total disability based on individual unemployability (IU) has been reasonably raised by the record and remand the case back to VBA or grant entitlement to IU.

If the Board determines that entitlement to IU has been reasonably raised by the record and issues a decision remanding or granting IU, then complete all development actions and use the table below to document the decision on IU.

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Reference: For more information on reasonably raised claims for IU, see

• M21-1, Part VIII, Subpart iv, 3.C.3.a, and
• Rice v. Shinseki, 22 Vet.App. 447, 451 (2009).

7.G.1.j. Processing Board Requests for Quality Assurance Records

When a remand decision requires the RO or DROC to obtain quality assurance documents, the RO or DROC must complete reasonable efforts to request from the Veterans Health Administration (VHA) any quality assurance records or documents that are relevant to the claim.

If needed, request the appellant provide sufficient information to help locate documents or records from VHA. All efforts to secure the records must be documented and associated with the claims record.

If VHA denies access to the documents on the basis that they are protected by Section 38 U.S.C. 5705(a), appeal VHA’s denial to the Office of General Counsel (OGC) under 38 CFR 17.506 within 60 days of the denial.

The final decision will be made by the General Counsel or the Deputy General Counsel. Follow the instructions in the table shown below when contacting OGC, Information Law Group.

Scroll sideways to see the full table.

References: For more information on

• quality assurance documents, see M21-1, Part VIII, Subpart iv, 6.A.1.c and
• how to contact OGC Information Law Group, see OGC/VACO.