The M21-1 Adjudication Procedures Manual (hereinafter, "M-21 Manual" or "Manual") 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]
The M21-1 Manual contains features designed to assist Veterans Benefits Administration (VBA) staff and other users.
The Manual frequently references statutes, regulations, and case law relevant to the particular policy or procedure discussed therein.
The Veterans Benefits Administration (VBA) continuously updates the Manual, with the dates of any additions, deletions, or modifications provided within the Manual itself.
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 2] to their KnowVA Knowledge Base. [7]
The Manual includes a concise synopsis of important veterans law cases decided by the Court of Appeals for Veterans Claims, Court of Appeals for the Federal Circuit, and U.S. Supreme Court. [lower-alpha 3]
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]
Veterans advocacy organizations such as Disabled American Veterans (DAV) and the National Organization of Veterans' Advocates (NOVA) [12] have argued that many additions to the M21-1 Manual constitute "interpretative rules" and that the Federal Circuit therefore has jurisdiction to review such changes upon direct appeal by a veteran. [13] The Federal Circuit concluded in 2017 that M2-1 Manual provisions do not fall under the purview of the Court. [14] However, in 2020 the court overruled aspects of that decision in National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (Fed. Cir. 2020), a unanimous en banc decision. [15]
In an amicus brief for that 2020 case (NOVA v. Sec'y Veterans Affs.), the National Veterans Legal Services Program (NVLSP), Veterans of Foreign Wars (VFW), and Paralyzed Veterans of America (PVA) had argued:
Congress require[s] Federal Register publication of all generally applicable interpretive rules ... [the Department of Veterans Affairs cannot] evade section 552(a)(1) by issuing a generally applicable rule in the [M21-1 Adjudication Procedures] Manual. Promulgation of “interpretations of general applicability” via a manual does not make them any less reviewable. If DAV’s [DAV v. Secretary of Veterans Affairs (Fed. Cir. 2017)] erroneous mutual exclusivity theory survives, DVA [Department of Veterans Affairs] can insulate substantive rules and generally applicable policy statements and interpretations, and avoid pre-enforcement judicial review, simply by promulgating them through the Manual. [16]
In NOVA v. Secretary of Veterans Affairs (Fed. Cir. 2020), the court stated that the "government also concedes that whether an interpretive rule is actually published in the Federal Register does not dictate whether this court has jurisdiction, as 'VA cannot insulate a rule from pre-enforcement review simply by placing it in the Manual'" and the "VA Manual provision governing knee joint stability … announces VA’s adoption of an interpretive rule establishing a new metric for assessing knee instability claims. It limits VA staff discretion, and, as a practical matter, impacts veteran benefits eligibility for an entire class of veterans." [17]
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.
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". [18] [19]
The Veterans Benefits Administration (VBA) announced in May 2021 that they had initiated a reorganization of the M21-1 Adjudication Procedures Manual. [20] The agency indicated they intend to “[make] the M21-1 Adjudication Procedures Manual (M21-1) a more consumable and navigable resource.”
The United States Department of Veterans Affairs (VA) is a Cabinet-level executive branch department of the federal government charged with providing lifelong healthcare services to eligible military veterans at the 170 VA medical centers and outpatient clinics located throughout the country. Non-healthcare benefits include disability compensation, vocational rehabilitation, education assistance, home loans, and life insurance. The VA also provides burial and memorial benefits to eligible veterans and family members at 135 national cemeteries.
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An administrative law judge (ALJ) in the United States is a judge and trier of fact who both presides over trials and adjudicates claims or disputes involving administrative law. ALJs can administer oaths, take testimony, rule on questions of evidence, and make factual and legal determinations.
United States federal administrative law encompasses statutes, regulations, rules, common law rulings, and directives issued by the Office of Information and Regulatory Affairs in the Executive Office of the President, that together define the extent of powers and responsibilities held by administrative agencies of the United States government. The executive, legislative, and judicial branches of the U.S. federal government cannot always directly perform their constitutional responsibilities. Specialized powers are therefore delegated to an agency, board, or commission. These administrative governmental bodies oversee and monitor activities in complex areas, such as commercial aviation, medical device manufacturing, and securities markets.
Francis M. Jackson is an American veterans law and personal injury attorney who is also an authority on Social Security disability. He has practiced law since 1977 and is a founding partner in the law firm of Jackson & MacNichol.
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The Disabled American Veterans (DAV) is an organization created in 1920 by World War I veterans for disabled military veterans of the United States Armed Forces that helps them and their families through various means. It was issued a federal charter by Congress in 1932. It currently has over 1 million members. As a 501(c)(4) social welfare organization, it is outside the purview of – and therefore not rated by – Charity Navigator. DAV's Employer Identification Number (EIN) is 31–0263158.
The United States Court of Appeals for Veterans Claims is a federal court of record that was established under Article I of the United States Constitution, and is thus referred to as an Article I tribunal (court). The court has exclusive national jurisdiction to provide independent federal judicial oversight and review of final decisions of the Board of Veterans' Appeals.
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The Board of Veterans' Appeals (BVA) is an administrative tribunal within the United States Department of Veterans Affairs (VA), located in Washington, D.C. Established by Executive Order on July 28, 1933, it determines whether U.S. military veterans are entitled to claimed veterans' benefits and services. The Board's mission is to conduct hearings and decide appeals properly before the Board in a timely manner. The Board's jurisdiction extends to all questions in matters involving a decision by the Secretary under a law that affects a provision of benefits by the Secretary to Veterans, their dependents, or their Survivors. Final decision on such appeals are made by the Board based on the entire record in the proceedings and upon consideration of all evidence and applicable provisions of law and regulation. The Board's review is de novo.
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Diana Rubens is a senior executive director for the Philadelphia office of the Veterans Benefits Administration or VBA, a subsidiary organization of the United States Department of Veterans Affairs (VA). She is notable for a 2014 controversy in which she, along with a colleague, was accused of abusing authority and embezzling public funds, taking advantage of the VA's PCS procedures.
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Nieves-Rodriguez vs. Peake is a United States Court of Appeals for Veterans Claims case that dealt with the adequacy and weighing of medical opinions.
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