Chapter 3. Administrative Reviews, Advisory Opinions, Appeals, and Equitable Relief
1. Handling Administrative Reviews and Advisory Opinions
Introduction
This topic contains information on administrative reviews and advisory opinions including
definition of advisory opinion
definition of administrative review
who can initiate an advisory opinion
who provides an advisory opinion
guidelines for submission of advisory opinion requests
who can initiate an administrative review
who conducts an administrative review
guidelines for submission of an administrative review to central office
general information on administrative reviews, and
binding nature of advisory opinions and administrative reviews.
Change Date
December 15, 2005
a. Definition of Advisory Opinion
An advisory opinion is initiated prior to a formal decision being made. An advisory opinion seeks to resolve doubt as to the correct application of
law
regulations
policies, or
procedures.
b. Definition of Administrative Review
An administrative review is initiated after a formal decision has been made. An administrative review upholds or overturns a decision already made. Administrative reviews focus on the following:
questions of policy and procedures, or
the possible misapplication of regulations or instructions.
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c. Who Can Initiate an Advisory Opinion
An advisory opinion can be initiated by
a VA staff member with the concurrence of the Vocational Rehabilitation & Employment (VR&E) Officer, or
the VR&E Officer.
Note: Advisory opinion requests must have concurrence of the regional office director.
d. Who Provides an Advisory Opinion
The Director, VR&E Service provides advisory opinions.
e. Guidelines for Submission of Advisory Opinion
Requests
Use a standard letter format to request an advisory opinion. Attach it to the Counseling/Evaluation/Rehabilitation (CER) folder and transfer the folder to the Director, VR&E Service. Include the information indicated below in the body of the letter in the format shown
Background Information - Begin with brief statements of pertinent information regarding the individual and identifying data.
Facts - State the facts pertinent to the issue.
Discussion - Discuss the facts as they relate to the laws, regulations, and procedures involved.
Questions at Issue - Succinctly state the question(s). Do not combine multiple issues in one question. Each issue requires a separate question. Number the questions if more than one.
Recommendation - Conclude with the VR&E Officer’s recommendation or comments on the questions presented.
Note: The advisory opinion request should be signed by the regional office director.
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A request for an administrative review of a regional office (RO) decision may come from any internal or external source. Requests for administrative reviews may be initiated by
RO staff
the individual
the individual’s designated representative, or
other appropriate person outside VA.
Note: Reviews should not be requested by RO staff if such action would add an unnecessary step in considering the decision on its merits thus bringing about needless delay.
g. Who Conducts an Administrative Review
See table below to determine who would conduct an administrative review.
Note: The individual will be informed of the decision within 90 days.
If…
Then…
the request for an administrative review involves eligibility and entitlement decisions
the administrative review will be conducted by the Director, VR&E Service.
the request for an administrative review involves a decision related to the development of a rehabilitation plan and the VR&E Officer is the case manager
the administrative review will be conducted by the Director, VR&E Service.
the request for an administrative review involves a decision related to the development of a rehabilitation plan
the administrative review will be conducted by the VR&E Officer.
the request for an administrative review involves any other adverse action
the administrative review will be conducted by the VR&E Officer.
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h. Guidelines for Submission of an Administrative Review to Central Office
Use a standard letter format to request an administrative review. Attach it to the CER folder and transfer the folder to the Director, VR&E Service. Include the information indicated below in the body of the letter in the format shown
Decision at Issue - Succinctly state the decision being challenged. Do not combine multiple decisions in one statement. Each decision requires a separate question. Number the decision(s) if more than one.
Background Information - Begin with brief statements of pertinent information regarding the individual and identifying data.
Facts - State the facts pertinent to the issue.
Discussion – A discussion of the rationale influencing the decision(s) reached by staff including references to appropriate regulations or other guidelines.
Recommendation - Conclude with the VR&E Officer’s recommendation or comments on the questions presented.
Note: The administrative review request should be signed by the regional office director.
i. General Information on Administrative Reviews
Administrative reviews must be initiated prior to appealing a decision to Board of Veterans Appeals (BVA).
Once an individual files a notice of disagreement, any administrative review in progress will be terminated immediately so that appellate procedures may be followed.
If the administrative review upholds the original decision, the individual may proceed with his/her appellate rights by filing a notice of disagreement.
j. Binding Nature of Advisory Opinions and Administrative Reviews
Advisory opinions and administrative reviews issued by the Director, VR&E Service are binding on the regional office requesting them.
Administrative reviews conducted by VR&E Officers are binding as well.
2. Processing Appeals to the Board of Veterans’ Appeals (BVA)
Introduction
This topic contains information on handling appeals to the Board of Veterans’ Appeals (BVA) including
definition of appeal
location of BVA
composition of BVA
notification and appellate rights
formal hearings
overview of the appellate process
notices of disagreement
statements of the case (SOC)
who prepares the SOC
what the individual will receive
timelines for receipt of substantive appeal
guidelines for preparation of SOC, and
handling remands from BVA.
Change Date
December 15, 2005
a. Definition of an Appeal
An appeal is a request for a review of a VA determination on a claim for benefits issued by a local VA office.
The Board of Veterans' Appeals (also known as ““BVA" or "the Board") is a part of VA and located in Washington, D.C.
c. Composition of the BVA
Members of the Board
review benefit claims determinations made by local VA offices, and
issue decisions on appeals.
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c. Composition of the BVA (continued)
These Law Judges, attorneys experienced in veterans law and in reviewing benefit claims, are the only ones who can issue Board decisions.
Anyone who is not satisfied with the results of a claim for veterans’ benefits should read the "Understanding the Appeal Process" pamphlet.
d. Notification and Appellate Rights
An individual and his/her designated representative must receive notification of their appeal rights whenever a decision denies, reduces, or terminates benefits. Nearly all final decisions on claims involving benefits that VA administers are subject to BVA review.
e. Formal Hearing
The individual may elect to have a formal hearing any time after he/she submits a VA Form 9, Appeal to the Board of Veterans’ Appeals.
f. Overview of the Appeal Process
The table below provides an overview of the steps in the appeal process.
Step
Action
1
The individual files a notice of disagreement (NOD) in response to a VA decision regarding his/her benefit.
2
VA accepts the NOD and establishes a Veterans Appeal Control and Locator System (VACOLS) record.
Note: For more information on establishing a VACOLS record, see the VACOLS User's Guide.
3
The Vocational Rehabilitation and Employment (VR&E) Officer, or his/her designee, will review the NOD and the evidence of record to determine if the benefit sought should be granted.
Note: The case manager who made the decision may not perform this review.
4
VR&E staff will prepare a statement of the case (SOC) if
the review does not result in a grant of benefits sought, or
the individual has not withdrawn the NOD.
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f. Overview of the Appeal Process (continued)
Step
Action
5
VA will send the individual and his/her designated representative a VA Form 9, Appeal to the Board of Veterans’ Appeals, along with a copy of the SOC.
6
The individual returns VA Form 9 and may elect one of the following types of BVA hearings
travel board
videoconference, or
in person in Washington D.C.
or
The individual may elect a local hearing before regional office (RO) personnel.
7
VA sends a Supplemental Statement of the Case (SSOC) to the individual if
VA receives additional evidence and
the individual does not receive a complete grant of benefits on appeal.
8
VA certifies and transfers the Counseling/Evaluation/Rehabilitation (CER) to BVA.
9
BVA either issues a decision granting or denying the benefit or remands the case to the RO.
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g. Notices of Disagreement
A notice of disagreement is a written statement from an individual advising the VA that he/she disagrees with a decision involving benefits that were sought and denied.
An individual must file a NOD within 1 year from the date of notification of an adverse determination.
Note: VR&E should not consider an inquiry or general complaint following an adverse action to be a NOD. However, if a verbal complaint appears to be a NOD the VR&E staff member taking the complaint will solicit a written, signed statement of the disagreement with the adverse decision.
h. Statement of the Case
After a timely NOD has been received and the issue in question is not resolved by granting the benefits sought, or if the appeal is not withdrawn, then a SOC will be prepared to continue the appeal process.
The purpose of a SOC is to provide the individual and designated representative, if any, with a summary of the evidence and applicable laws and regulations used in deciding the case, as well as the specific reasons why the claim was disapproved or denied.
i. Who Prepares the SOC
The case manager who made the adverse decision will
forward the SOC to the VR&E Officer for review and signature of the original.
j. What the Individual will Receive
The individual will receive
an unsigned copy of the SOC,
VA Form Letter 1-25, Cover Letter for the Statement of the Case, and
VA Form 9, (Appeal to Board of Veterans Appeals).
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k. Timelines for Receipt of Substantive Appeal
The individual has 60 days to respond by submitting VA Form 9 or other correspondence which sets out specific arguments relating to errors of fact or law made by VA in reaching the decision(s) being appealed.
The following table shows the next step(s) to be taken by VR&E staff.
If…
Then…
after receiving the SOC, the individual adequately completes and returns VA Form 9
the VR&E Officer or his designee will review the appeal and take one of the following actions:
Prepare a supplemental statement of the case (SSOC) if the original SOC was in error or materially deficient;
Grant the benefit sought if the new evidence justifies an affirmative finding;
Arrange for a hearing; or
Certify the appeal to BVA using VA Form 8 (Certification of Appeal).
VR&E does not receive a substantive appeal within 60 days of the date of the SOC or 30 days after the date of the SSOC
update records to show failure to respond to the SOC, and
notify the individual of the termination of all further processing of the appeal.
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l. Guidelines for Preparation of SOC
The table below describes the sections of an SOC and the actions required.
Section
Description
Issue
Identify the issue(s) with which disagreement has been expressed.
Summary of Evidence and Actions
Summarize the evidence pertinent to the issue(s) for which disagreement has been expressed. Cite VR&E actions in chronological order relevant to the issue(s) raised.
Cite pertinent laws and regulations and discuss how such laws and regulations led to the decision.
Decision
State the decision.
Reasons for the Decision
Include the reasons for the decision, discuss the laws and regulations, and explain how they relate to the adverse decision.
Explain how the evidence supports the underlying decision.
Address all the appellant’s contentions.
Clarify and simplify the reasoning, so that the reader will understand the precise basis for the decision.
Indicate why most of the evidence is against the claim.
Signature and Approval
The preparer will sign the original SOC and forward it to the VR&E Officer for review and approval.
Note: The signed original SOC will be filed in the CER folder. An unsigned copy will be mailed to the individual and his/her designated representative.
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m. Remands from BVA
BVA returns a number of remanded appeals to VA for further action. In some cases BVA may issue orders that require VA to
make a decision
complete some other action by a certain date, or
provide status reports at certain intervals, which must show that required procedures are being followed without excessive delay.
Note: All remanded appeals to VA from either CAVC or BVA must, by law, be handled expeditiously by regional offices (Veterans Benefits Improvement Act of 1994 – Public Law 103-446).
3. Processing Appeals to the Court of Appeals for Veterans Claims (CAVC)
Introduction
This topic contains information on the Court of Appeals for Veterans Claims (CAVC) including
Effective November 18, 1988, Congress established judicial review of final decisions of VA by creating the United States Court of Veterans Appeals (COVA).
Effective March 1, 1999, COVA became known as the U.S. Court of Appeals for Veterans Claims (CAVC).
b. Appeal to CAVC
If the Board of Veterans’ Appeals (BVA) denies an individual’s appeal, the individual may appeal this decision to the CAVC.
c. Informing the Individual
When BVA denies a claim, it informs the individual of the decision and the right of appeal to CAVC. The Vocational Rehabilitation and Employment (VR&E) division need not notify the veteran of the BVA decision.
d. Remands from CAVC
CAVC returns a number of remanded appeals to VA for further action. In some cases CAVC may issue orders that require VA to
make a decision
complete some other action by a certain date, or
provide status reports at certain intervals, which must show that required procedures are being followed without excessive delay.
Note: All remanded appeals to VA from either CAVC or BVA must, by law, be handled expeditiously by regional offices (Veterans Benefits Improvement Act of 1994 – Public Law 103-446).
4. Providing Equitable Relief
Introduction
This topic contains information on equitable relief including
general information on equitable relief
factors for equitable relief
development for equitable relief, and
referral to Central Office (CO)
Change Date
December 15, 2005
a. General Information on Equitable Relief
Sections 501(a) and (b) of Title 38 U.S.C. grant the Secretary of Veterans Affairs authority to make rules and regulations needed to administer VA benefits. Sometimes mistakes made in applying rules and regulations deprive claimants of benefits or cause them to suffer a loss because they relied on an erroneous decision.
For this reason, Section 503 also provides a means for the Secretary to remedy an injustice done to a claimant which cannot otherwise be justified within the scope of the law. This remedy is called equitable relief. It is governed by either of the two provisions described below
Section 503(a) gives the Secretary authority to provide whatever relief is determined equitable if a claimant is denied VA benefits because of an administrative error by the Federal Government or any of its employees.
Section 503(b) gives the Secretary authority to provide equitable relief if a claimant suffered loss as a result of relying on an erroneous determination by VA.
b. Factors for Equitable Relief
Refer to the following factors before initiating a request for equitable relief.
VA made an erroneous decision concerning benefit eligibility and entitlement.
The individual acted to his/her detriment based on that erroneous determination.
At the time the individual acted to his/her detriment, the individual did not know the VA determination was in error.
Note:If evidence indicates that a claimant suffered loss, establish that all of the above conditions also exist before attempting to assess the extent of loss.
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c. Development for Equitable Relief
In addition to evidence showing that the factors for relief consideration are met, referrals to CO must include a detailed factual determination of loss.
If financial loss is claimed, the individual must furnish a statement listing obligated expenses incurred because the individual relied on the erroneous determination.
If the loss involves injury, damage or some other disadvantage suffered by the individual, obtain documentation from the claimant showing the extent and that it was due to reliance on an erroneous determination of eligibility or entitlement.
d. Referral to Central Office
Refer equitable relief requests involving VR&E benefits and services to the Director, VR&E Service, for review. Use a standard letter format to request relief consideration and attach it to the CER folder. Ensure that full supporting documentation is in the CER folder. Include the following information in the body of the letter
a statement regarding the applicable provision, and
Justification for the request in concise terms.
Include a brief history of events
cite the VA/Government error
describe the loss, and
discuss the recommended relief.
Central Office only considers a claim for equitable relief if the request is made by or on behalf of a claimant or if the regional office believes relief should be granted.
Note:The equitable relief referral should be signed by the regional office director.
