M21-1 Adjudication Procedures Manual

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][a] 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

The M21-1 Manual contains features designed to assist Veterans Benefits Administration (VBA) staff and other users.

In-text hyperlinked references

The Manual frequently references statutes, regulations, and case law relevant to the particular policy or procedure discussed therein.

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][b] to their KnowVA Knowledge Base.^[7]

Case law summaries

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.^[c]

Legal status

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?

 

Seal of the United States Court of Appeals for the Federal Circuit

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]

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".^[18][19]

Reorganization of the M21-1 Manual

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.”

Notes

1. Search parameters: with the exact phrase: "M21-1"; anytime, any format, anywhere; Panel Opinions (yes); Single Judge Decisions (yes).
2. 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/."
3. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) in the M21-1 Manual.

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 December 29, 2019.
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 December 29, 2019.
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 respondent's response opposing rehearing ("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. "Home". NOVA. Retrieved August 8, 2020.
13. 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.
14. Disabled American Veterans v. Secretary of Veterans Affairs (DAV), 859 F.3d 1072 (Fed. Cir. 2017).
15. National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, No. 2020-1321, slip op. at 19 (Fed. Cir. Dec. 8, 2020) ("because we find that the Knee Joint Stability Rule falls within the 'general applicability' language of section 552(a)(1)(D), we overrule our contrary holding in DAV.")
16. Corrected Brief of Amici Curiae National Veterans Legal Services Program, et al., in Support of Petitioner at 8–9, National Organization of Veterans’ Advocates, Inc. v. Secretary of Veterans Affairs (July 14, 2020) (No. 20-1321).
17. National Organization of Veterans Advocates, Inc. v. Secretary of Veterans Affairs, No. 2020-1321, slip op. at 19 (Fed. Cir. Dec. 8, 2020)
18. 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
19. 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).
20. Compensation Service, Veterans Benefits Admin., Dep’t Veterans Affs., Memorandum of Changes (May 10, 2021); see also M21-1 Adjudication Procedures Manual, FY21 Reorganization Guide (rev. April 30, 2021).