Revised January 24, 2022
X.ii.1.A.1.aBinding Determinations
Under 38 CFR 3.104 a decision of a Department of Veterans Affairs (VA) rating agency is binding on all VA field offices as to the conclusions based on the evidence on file at the time VA issues notification in accordance with 38 U.S.C. 5104.
X.ii.1.A.1.bSignificance of Binding Determinations
Binding determinations are not subject to revision except by the Board of Veterans’ Appeals (BVA), by Federal court order, or as provided in 38 CFR 3.105, 38 CFR 3.2500, and 38 CFR 3.2600.
X.ii.1.A.1.cFinally Adjudicated Claims
Public Law 115-55, Veterans Appeals Improvement and Modernization Act of 2017 , required VA to update the definition of finally adjudicated claim in 38 CFR 3.160(d). Use the table below to determine the applicable definition of a finally adjudicated claim.
| If the claim was decided ... | Then the claim is finally adjudicated ... |
|---|---|
prior to February 19, 2019, |
|
on or after February 19, 2019, |
|
X.ii.1.A.1.dBinding but Not Finally Adjudicated Claims
A claim that has not been finally adjudicated (which includes claims where a binding decision has been issued but the appeal or decision review period has not expired) is still considered a pending claim under 38 CFR 3.160(c).
X.ii.1.A.1.eBinding Nature of BVA Decisions
BVA decisions are binding on the Veterans Benefits Administration decision makers unless the claimant files a supplemental claim with new and relevant evidence within one year of the BVA decision. After BVA issues a decision on an appeal, an appellant may also file
- an appeal with the U.S. Court of Appeals for Veterans Claims, or
- a motion for reconsideration with BVA asserting clear and unmistakable error (CUE) or presenting new service records.
Notes:
- In the absence of new and relevant evidence, regional offices do not have the authority to award a benefit denied by a BVA decision.
- A motion for reconsideration of a BVA decision is not a claim; therefore, the motion does not need to be submitted to BVA on a prescribed form.
References: For more information on
- BVA decisions, see M21-5, Chapter 7, Section G.1
- the non-precedential value of BVA decisions, see 38 CFR 20.1303
- what to do with documents disagreeing with a BVA decision, see M21-5, Chapter 7, Section G.2.f
- determining jurisdiction for review of a CUE allegation, see M21-1, Part X, Subpart ii, 5.A.3, and
- filing a motion for reconsideration, see
X.ii.1.A.1.fRevising Binding Decisions
Use the table below if revising a prior decision that is binding as defined in M21-1, Part X, Subpart ii, 1.A.1.b to determine which revision authority(ies) can be applied.
| If … | Then the decision may be revised … |
|---|---|
| by a Decision Review Officer (DRO) |
| by a DRO or other appropriate decision maker as assigned by division management
|
there is no legacy NOD or request for decision review | by a member of the rating activity or other appropriate decision maker as assigned by division management on the same evidentiary basis
|
there is a supplemental claim | by a member of the rating activity or other appropriate decision maker as assigned by division management
|
the claimant requested higher-level review (HLR) | by a higher-level reviewer on the same evidentiary basis
|
References: For more information on
- de novo review authority
- for legacy appeals, see
- for HLRs, see
- revising decisions based on CUE, see
- difference of opinion, see
- requests for an earlier effective date, see
- new and material evidence submitted during the legacy appeal period, see 38 CFR 3.156(b).
2Favorable Findings
Introduction — This topic contains information on the binding nature of favorable findings, including
- binding nature of favorable findings, and
- overturning favorable findings.
Change Date — August 19, 2021
X.ii.1.A.2.aBinding Nature of Favorable Findings
Any finding favorable to the claimant made by either a VA adjudicator, as described in 38 CFR 3.103(f)(4), or by BVA, as described in 38 CFR 20.801(a), is binding on all subsequent VA and BVA adjudicators, unless rebutted by clear and unmistakable evidence to the contrary.
X.ii.1.A.2.bOverturning Favorable Findings
To overturn a prior favorable finding, there must be clear and unmistakable evidence to rebut the favorable finding. The clear and unmistakable rebuttal standard may be satisfied by a finding that the evidentiary record as a whole completely lacks any plausible support for the favorable finding. This does not require a determination that the outcome of the benefit adjudication would undebatably change. Note: Unlike CUEs, a decision to overturn a previous favorable finding does not require additional approval signature(s). If however, the overturning of favorable findings leads to the conclusion that the previous decision to award a benefit was clearly and unmistakably erroneous, then the normal CUE signature requirements apply as outlined in M21-1, Part X, Subpart ii, 5.A.3.
End of Part X, Subpart ii, Chapter 1, Section A