## Veterans Benefits Administration M21-1, Part IV

**Department of Veterans Affairs Change 199**

**Washington, DC 20420 June 30, 2004**

Veterans Benefits Manual M21-1, Part IV, "Authorization Procedures," is
changed as follows:

**Pages 8-IX-1 through 8-X-4:** Remove these pages and substitute pages
8-IX-1 through 8-X-4 attached.

Paragraph 8.34 is revised to reflect that a claimant's representative
has the authority to withdraw a notice of disagreement or substantive
appeal. The reference to 38 CFR 20.204(c) is changed to 38 CFR 20.204.

Paragraph 8.36b is removed because, although legal advice from the
Regional Counsel or General Counsel may provide a basis for a decision
on a claim, only a regional office is authorized to render the decision.
Former paragraphs 8.36c through k are redesignated as paragraphs 8.36b
through j.

The note in paragraph 8.37a(1) is revised to reflect that the worksheet
displayed in Exhibit B is the approved certification worksheet that must
be completed prior to certification of any appeal to the Board of
Veterans' Appeals.

Paragraph 8.37a(2) is revised to clarify the use of the VA Form 8
retained in the Veterans Service Center and to include a reference to
paragraph 8.40a.

By Direction of the Under Secretary for Benefits

Carolyn F. Hunt, Acting Director

> Compensation and Pension Service

Distribution: RPC: 2068

FD: EX: ASO and AR (included in RPC 2068)

LOCAL REPRODUCTION AUTHORIZED

**June 30, 2004 M21-1, Part IV**

**Change 199**

**SUBCHAPTER IX. WITHDRAWAL OF APPEALS**

**8.33 APPEALS CONSIDERED RESOLVED ON BASIS OF GRANT OF BENEFITS
SOUGHT**

a\. **General.** If additional evidence is received prior to forwarding
the claims folder to the BVA, refer the case to the rating or
authorization element as indicated. If a favorable decision is made on
reconsideration, include in the decision a complete statement of facts
with any discussion needed to clearly show the basis for the allowance.
The personal appearance of the claimant or his or her representative, if
requested, will be permitted in connection with the consideration of
such additional evidence.

b\. **All Benefits Allowed.** After an NOD has been filed, if all
benefits sought are allowed for the entire period covered by the appeal,
consider the appeal resolved and so advise the claimant. If the
substantive appeal is favorably resolved, update VACOLS (Part II,
Chapter 7). Appeals considered to be resolved on the basis of a total
grant of benefits sought include claims for clothing allowance,
specially adapted housing, aid and attendance in pension claims, auto
and adaptive equipment, and CHAMPVA. Also, an appeal of the denial of
service connection, which is subsequently granted, favorably resolves
that appeal.

c\. **Partial Allowance of Benefits.** If there is any action taken
which does not grant all benefits sought, the award letter to the
claimant and/or representative should state: \"If you would like to
withdraw your appeal at this time, please let us know within 60 days. If
we do not hear from you to the contrary, your appeal will be certified
to the BVA.\" Include a self-addressed return envelope and VA Form
21-4138 with the letter to facilitate a response from the claimant.

d\. **Referral for VACOLS Coding.** See Part II, Chapter 7.

**8.34 WITHDRAWAL OF APPEAL**

An appeal or NOD may be withdrawn by written request of the appellant or
the appellant's representative. See 38 CFR 20.204.

*Note:* The failure of the claimant to report for an examination or
furnish evidence requested by the VA does not constitute a withdrawal of
an appeal. See par 8.23b.

**8.35 REACTIVATION OF APPEALS SUBSEQUENT TO WITHDRAWAL**

After an NOD or substantive appeal has been withdrawn, it may be
reactivated by the claimant or the authorized representative, provided a
request is received by VA within the remaining appeal period. If the
appeal is not so reactivated, the decisions will be regarded as final.
In the event an appeal withdrawn for any reason is subsequently
reactivated, refer the folder for re-establishment of the VACOLS
control. BVA administration must be contacted to reactivate a withdrawn
appeal record. Do not establish a new VACOLS record.

**8-IX-1**

**June 30, 2004 M21-1, Part IV**

**Change 199**

**SUBCHAPTER X. CERTIFICATION OF APPEALS**

**8.36 RESPONSIBILITY FOR CERTIFICATION**

a\. **Appeals From Authorization or Rating Decisions**

\(1\) **Authorization Decisions.** Certification of substantive appeals
from authorization decisions will be made to the BVA by the DRO or
VSCM\'s designee. These include decisions made at the request of other
activities or non-VA agencies. Appeals from authorization determinations
made under 38 U.S.C. Chapter 35, Survivors and Dependents\' Educational
Assistance, such as relationship, will be certified by the DRO or
VSCM\'s designee in the office having possession (permanent or
temporary) of the claims folder.

\(2\) **Rating Decisions.** Certification of substantive appeals from
rating decisions will be made to the BVA by the DRO or VSCM\'s designee.
These include appeals made from adverse rating decisions under 38 U.S.C.
Chapter 35, Survivors and Dependents\' Educational Assistance.

*Note:* Appeals from determinations by a VA regional office or insurance
center will be certified by that activity.

b\. **Incompetent Institutionalized Veterans---Estate Over \$1,500**

\(1\) **Appeals Certified by the Veterans Service Center.** The Veterans
Service Center will be responsible for notifying claimants and
representatives of determinations and certification of appeals involving
the following issues:

\(a\) The amount of an award to a dependent parent based on
recommendation of the Veterans Service Center Manager (VSCM) or
designee.

\(b\) The amount specified by the VSCM or designee to a chief officer of
a non-VA institution for the care and maintenance of the veteran.

\(c\) A disallowance to a parent because dependency is not shown or
relationship to the veteran is not established.

*Note:* In appeals in cases under subparagraphs (a) and (b) above, an
NOD with the determination of need of the parent or adequacy of the
amount for care and maintenance will be forwarded to the VSCM. The VSCM
or his/her designee will furnish the claimant an SOC. If a substantive
appeal is filed, the VSCM or his/her designee will complete a memorandum
for the file showing the appeal was reviewed and no change in the
decision was warranted.

\(2\) **Appeals Certified by VSCM.** The VSCM or his/her designee will
be responsible for processing (including preparing the SOC) and
certifying appeals by:

\(a\) A parent determined not to be in need or whose needs are to be met
from the veteran\'s estate or PFOP and no payments or partial payments
will be made for support from appropriated funds.

\(b\) The veteran\'s fiduciary when it is determined that no amount for
the care and maintenance of the veteran in a non-VA hospital is payable
from appropriated funds.

*Note:* If a parent is dissatisfied with the VSCM\'s or his/her
designee's determination as to the amount to be paid from PFOP, forward
the case with a statement of all the facts to the Fiduciary Program
Staff (216) for an administrative review. Cite this paragraph.

**8-X-1**

**M21-1, Part IV June 30, 2004**

**Change 199**

c\. **Administrative Appeals.** No certification is necessary in an
administrative appeal unless merged with an appeal by the claimant. See
paragraph 8.28.

d\. **Forfeiture Decisions.** See chapter 36.

e\. **Clothing Allowance.** See chapter 25.

f\. **Automobiles and Adaptive Equipment.** See chapter 23.

g\. **Specially Adapted Housing.** See chapter 23.

h\. **CHAMPVA.** See chapter 23

i**. Special Allowance---Sec. 1312a.** See chapter 33.

> j**. VAMC Appeals.** The DRO or VSCM designee will certify the
> appeals.

**8.37 CERTIFICATION OF APPELLATE CASES TO BVA**

a\. **Completion of VA Form 8**

\(1\) Certify appeals to the BVA on VA Form 8. The responsible official
of the office having authority over the issue claimed (par. 8.37) will
complete VA Form 8 in its entirety. In the Veterans Service Center this
will be the DRO or the VSCM\'s designee of a senior official.

*Note:* See Exhibit B for the approved certification worksheet that must
be completed prior to certification of any appeal to BVA.

\(2\) Prepare an extra copy of the VA Form 8 to be retained in the
Veterans Service Center. Refer to this copy when determining whether or
not additional evidence or information received pertains to an issue
before the BVA. See paragraph 8.40a. In addition, retain a copy of the
latest rating decision, the latest award letter, and any other pertinent
documents which may be needed to adjudicate any new or supplemental
claims while the claims folder is temporarily transferred to BVA.

\(3\) The certification should cite only the issue(s) on appeal. In
cases in which service connection has been denied for a number of
conditions and the claimant has only appealed service connection for
one, certify only that issue.

\(4\) After having been furnished an SOC or SSOC, if the claimant
enlarges the appeal to include additional issues, certify all related
issues on the appeal to the BVA. See paragraph 8.18.

b\. **Notice to Appellant of Certification.** Use FL 1-26 to advise the
claimant that the appeal has been certified and transferred to the BVA.
Do not use the letter generated by the Benefits Delivery Network (BDN).
Prepare copies of the form letter for the representative and other
interested persons, if any. Ensure that a copy of that letter is in the
claims folder when it is forwarded to the BVA. If a hearing before the
BVA in Washington, DC has been requested, add the statement: \"You will
be advised by the Board concerning your request for a hearing.\" *Note:*
If the claimant\'s address is not known, the appeal must still be
forwarded to the BVA as receipt of the VA Form 9 places it under BVA
jurisdiction. Send the FL 1-26 to the last known address.

c\. **Processing Certification.** After VA Form 8 has been signed by the
DRO or VSCM\'s designee, all correspondence released and VACOLS updated,
route the claims folder for transfer to BVA.

**8-X-2**

**June 30, 2004 M21-1, Part IV**

**Change 199**

**8.38 DEFERRED CERTIFICATION AND TRANSFER OF CASE TO BVA**

In any case in which final action is delayed to permit the submission of
additional evidence, do not certify an appeal until the expiration of
the period for submission of the evidence. See paragraph 8.07.

**8.39 FORWARDING OF CLAIMS FOLDER TO THE BVA**

Consideration of appeals involves studying all evidence available
relating to the issue presented. Forward to the BVA the claims folder
and all other records relating to the issue on appeal in the custody of
the originating office.

**8.40 EVIDENCE, REQUEST FOR HEARING, OR CHANGE OF REPRESENTATIVE
RECEIVED AFTER CERTIFICATION AND TRANSFER**

a\. **Evidence Received After Transfer of Case to the BVA**

\(1\) If additional evidence is received after the claims folder has
been transferred, forward it to the BVA if it has a direct bearing on an
issue before the BVA. Obtain a waiver of consideration by the regional
office from the claimant. Review the copy of the VA Form 8 that has been
retained in the Veterans Service Center to determine the relationship of
the evidence to the issue under BVA review. While there is a time limit
for submission of such evidence, the BVA will determine if it was timely
received. See 38 CFR 20.1304.

\(2\) If the evidence does not relate to the issue before the BVA but
action is required, information needed from the claims file may be
obtained by calling or faxing the appropriate BVA team or by requesting
temporary return of the claims folder as stated in paragraph 5. See
exhibit A for BVA points of contact.

\(3\) If the return of the claims folder is essential for adjudication
of a claim unrelated to the appeal issue, request return of the claims
folder from BVA. Prepare a request which includes the appellant\'s name,
claim number and reason for requesting the claims folder. The request
should be directed to the Office of the Director of BVA Administrative
Service (014). The request(s) can be sent by FAX or electronic mail (BVA
RO MAIL). The FAX number is (202) 565-6364. The Director\'s office will
determine whether the claims folder may be returned to the regional
office. If the BVA cannot return the folder immediately, written
notification will be sent with the anticipated date of return.

\(4\) Despite the fact the claimant\'s folder is before the BVA, any
newly received unrelated claim must be placed under control and must be
acted on as soon as possible. The Court of Appeals for Veterans Claims
has stated that undue delay on new claims will not be tolerated. (See
*Ebert v. Brown,* 4 Vet. App. 434 (1993).)

b\. **Change of Address Received After Certification or Transfer of Case
to the BVA.** If a change of address is received after certification or
transfer to BVA, refer the claim for VACOLS input.

c\. **Change of Representative Received After Transfer of Case to the
BVA.** An appellant has 90 days from the mailing of notice that an
appeal has been certified to the BVA, or until the date the appellate
decision is promulgated by the Board, whichever comes first, during
which time he or she may submit a request for a change in
representation. After that time, the Board may permit a change in
representation for good cause. The request for a change in
representation is to be sent directly to the BVA, not to the regional
office. See 38 CFR 20.1304.

\(1\) If, after transfer of the appeal to the BVA, notice is received of
the appointment by the appellant of a new representative, update the BDN
and BIRLS to reflect the new power of attorney code.

\(2\) Forward to the BVA the document appointing the new representative.
(Keep a photocopy for drop file pending return of the claims folder.)
The Board will determine if the request to change representative may be
accepted.

**8-X-3**

**M21-1, Part IV June 30, 2004**

**Change 199**

d\. **Request for Hearing Received After Transfer of Case to the BVA.**
An appellant has 90 days from the mailing of notice that an appeal has
been certified and transferred to the BVA, or until the date the
appellate decision is promulgated by the Board, whichever comes first,
during which he or she may submit a request for a hearing on appeal.
That request is to be sent directly to the BVA and not to the regional
office. See 38 CFR 20.1304. If a request for a hearing is received at
the regional office, forward it to the BVA. The Board will determine if
a hearing will be scheduled.

**8-X-4**