M21-1 Adjudication Procedures Manual

The M21-1 Adjudication Procedures Manual (hereinafter, "M-21 Manual", "Manual", or "M-21") details policies and procedures for Veterans Benefits Administration (VBA) staff who develop and adjudicate U.S. veterans' disability benefit claims.

The federal government produces thousands of procedural and policy manuals every year. The M-21 Manual stands out as notable because each year over 400,000 veterans file claims with the Veterans Benefits Administration for disability compensation, financial hardship pensions, vocational rehabilitation services, and burial benefits—with total program net outlays amounting to over $90 billion each year.[1]

Many of those 400,000 veterans and family members, along with veterans service officers; veterans law attorneys; Board of Veterans Appeals attorneys and judges; legal scholars; and federal judges consult the M-21 Manual to better understand VA policies and procedures for all programs administered by the Veterans Benefits Administration. For example, from 1992 through 2019, the Board of Veterans Appeals cited the M21-1 Manual 113,029 times,[2] and the Court of Appeals for Veterans Claims cited the Manual 4,034 times.[3][lower-alpha 1] In addition, over 100 scholarly articles, mostly in law review journals, have cited the M21-1 Manual.[4]

American Veterans Disabled for Life Memorial, National Mall, Washington, D.C.

Features

In-text hyperlinked references

The Manual frequently references statutes, regulations, and case law relevant to the particular policy or procedure discussed therein. These references provide veterans law attorneys;[lower-alpha 2] claims agents and veterans service representatives;[lower-alpha 3] and individual veterans the opportunity to study a topic in depth, and to better understand the legal basis for a given policy or procedure.

Continuously updated

The Veterans Benefits Administration (VBA) continuously updates the Manual, with the dates of any additions, deletions, or modifications provided within the Manual itself.

Improved usability

The Veterans Benefits Administration has made an effort to improve the usability of the Manual.[5] Beginning in 2015 the agency transferred the Manual from the WARMS (Web Automated Reference Material System) platform[6][lower-alpha 4] to their KnowVA Knowledge Base.[7]

Disabled American Veterans v. Secretary of Veterans Affairs, 859 F.3d 1072 (Fed. Cir. 2017).

Case law summaries

The Manual includes succinct summaries of important decisions by the United States Court of Appeals for Veterans Claims, United States Court of Appeals for the Federal Circuit, and United States Supreme Court. Since the Manual frequently cites such cases, a case law summary provides the most important information about the court's opinion for VBA adjudicators. See the M21-1 Manual's summary of Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) for an example.

The M21-1 Adjudication Procedures Manual does not constitute law, in contrast to statutes, federal regulations, and federal case law. The Department of Veterans Affairs has stated, “[t]he M21-1 is an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation.”[8][9] At the same time, federal courts consult the M-21 Manual to determine if VA's actions conform with their own regulations, policies, and procedures, and to gain insight into the meaning and intent of VA regulations.[10][11]

Does the M21-1 Manual constitute rule-making subject to review by the Federal Circuit?

Veterans advocacy organizations such as Disabled American Veterans (DAV) and the National Organization of Veterans' Advocates (NOVA) have argued that many additions to the M21-1 Manual constitute rule-making, in the sense that the Federal Circuit has jurisdiction to review such changes upon direct appeal by a veteran.[12] Heretofore, the Federal Circuit has concluded that M2-1 Manual provisions do not fall under the purview of the Court.[13] As of 2020, a possible resolution to this controversy is pending before the Federal Circuit.[14][15]

Prominent M21-1 sections

Some sections of the M21-1 Manual have received significant attention from various groups such as investigatory bodies like the VA Office of Inspector General or General Accountability Office, veterans service organizations, the press, Congress, and others.

Telehealth and telemental health examinations

In February 2020, the Department of Veterans Affairs Office of Inspector General (VAOIG) issued an audit report titled, Telehealth Public-Use Questionnaires Were Used Improperly to Determine Disability Benefits, which critiqued VBA's enforcement of the M21-1 Manual subsection titled, "Examination Report Requirements: Telehealth and Telemental Health Examinations".[16][17]

Notes
  1. Search parameters: with the exact phrase: "M21-1"; anytime, any format, anywhere; Panel Opinions (yes); Single Judge Decisions (yes).
  2. See Oғғ. Gᴇɴ. Cᴏᴜɴs., Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғᴀɪʀs, Legal Help, https://www.va.gov/ogc/legalservices.asp
  3. See Dᴇᴘ'ᴛ Vᴇᴛᴇʀᴀɴs Aғғᴀɪʀs, Vᴇᴛs.ɢᴏᴠ, Get Help Filing Your Claim or Appeal ("If you need help filing a claim or appeal, you may want to work with an accredited attorney, a claims agent, or a Veterans Service Officer (VSO). We trust these professionals because they’re trained and certified in the VA claims and appeals processes and can help you with VA-related needs.")
  4. Note the warning at the top of that web page: "The content found here may be out-of-date. The most recent content is available via KnowVA at http://www.knowva.ebenefits.va.gov/."

References
  1. Veterans Benefits Administration, Department of Veterans Affairs, Annual Benefits Report - Fiscal Year 2018 at 7–9, https://www.benefits.va.gov/REPORTS/annual_benefits_report.asp
  2. "The Board of Veterans' Appeals Decision search results". www.va.gov. Retrieved 2019-12-29.
  3. "USCAVC: Search". U.S. Court of Appeals for Veterans Claims. December 29, 2019. Retrieved December 29, 2019.
  4. "Google Scholar search results". scholar.google.com. Retrieved 2019-12-29.
  5. Web Automated Reference Material System, 81 Fed. Reg. 15150 (Mar. 21, 2016), ("Historically, the Veterans Benefits Administration's Adjudication Procedures Manual, M21-1 ... was electronically available to the public only in WARMS. WARMS displays M21-1 content in individual Microsoft Word documents, currently in excess of 300 documents, making it difficult to search for information or navigate from one citation to another. ... The M21-1 content found on KnowVA is a mirror image of the M21-1 content available to VA employees through internal servers and is updated simultaneously when VA updates M21-1 content on the internal servers. Moreover, KnowVA is more user friendly than WARMS, with an intuitive search engine, keyword search capability, hyperlinked cross references to other M21-1 content, and historical versions of M21-1 content, making it easier for users to locate information.")
  6. "M21-1 Adjudication Procedures". www.benefits.va.gov (Web Automated Reference Material System). Retrieved June 22, 2018.
  7. "Welcome to the KnowVA Knowledge Base (also known as 'VA Self-Service')". www.eBenefits.va.gov. Retrieved June 22, 2018.
  8. VA Adjudications Manual, M21–1; Rescission of Manual M21–1 Provisions Related To Exposure to Herbicides Based on Receipt of the Vietnam Service Medal, 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)
  9. See also Disabled American Veterans v. Secretary of Veterans Affairs, 859 F. 3d 1072, 1077 (Fed. Cir. 2017); and Operation of the Board of Veterans' Appeals, Criteria governing disposition of appeals, 38 C.F.R. § 19.5 (2018), ("The Board is not bound by Department manuals, circulars, or similar administrative issues.").
  10. Gray v. Secretary of Veterans Affairs, Nos. 2016-1782 & 2016-1793, slip op. (Dyk, J., dissenting) at 2, Fed. Cir. (Mar. 21, 2018), referencing Resp’t Resp. Opp’n Reh’g 2 ("As the government concedes, the M21-1 Adjudication Procedures Manual 'consolidated all of the [Department of Veterans Affairs] policies and procedures for adjudicating claims for VA benefits into one resource'.")
  11. Disabled American Veterans v. Secretary of Veterans Affairs, 859 F. 3d 1072, 1074 (Fed. Cir. 2017), ("The VA consolidates its policy and procedures into one resource known as the M21-1 Manual. The M21-1 Manual provides guidance to Veterans Benefits Administration ('VBA') employees and stakeholders 'to allow [the] VBA to process claims benefits quicker and with higher accuracy.'")
  12. Brief of Petitioner at 9, National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, Petition for hearing en banc (No. 20-1321), filed January 27, 2020.
  13. Disabled American Veterans v. Secretary of Veterans Affairs (DAV), 859 F.3d 1072 (Fed. Cir. 2017).
  14. "Breaking News - Federal Circuit Grants Petition for Initial Hearing En Banc in Veterans Case". Fed Circuit Blog. 7 May 2020. Retrieved 25 May 2020.
  15. National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, petition for review pursuant to 38 U.S.C. Section 502, on petition for hearing en banc (No. 20-1321), Order, petition granted (Fed. Cir. May 6, 2020).
  16. Off. Inspector Gen., Dep't Veterans Aff., Rep. No. 19-07119-80, Telehealth Public-Use Questionnaires Were Used Improperly to Determine Disability Benefits 2 (Feb. 18, 2020)  https://www.va.gov/oig/pubs/VAOIG-19-07119-80.pdf
  17. Veterans Benefits Admin., Dep't Veterans Aff., Examination Report Requirements: Telehealth and Telemental Health Examinations, M21-1 Adjudication Procedures Manual, pt. III, subpt. iv, chap. 3, sec. D, no. 2, subsec. c (rev. Feb. 19, 2020).
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