[Federal Register Volume 60, Number 93 (Monday, May 15, 1995)]
[Rules and Regulations]
[Pages 25850-25851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-11888]



=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AH47


Rules of Practice: Waiver of Consideration of Evidence by Agency 
of Original Jurisdiction

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This document amends the Rules of Practice of the Board of 
[[Page 25851]] Veterans' Appeals (Board) with respect to evidence 
accepted by the Board after transfer of the record to the Board to 
specify that an appellant's representative may waive the right to have 
such evidence referred to the agency of original jurisdiction. This 
amendment is necessary because there has been confusion as to whether 
such a waiver may only be made by an appellant. This amendment is 
intended to provide clarification and to be consistent with general 
principles permitting use of representatives by VA claimants. Also, 
this amendment will help expedite the handling of appeals.

EFFECTIVE DATE: May 15, 1995.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Counsel to the 
Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420; (202) 233-2978.

SUPPLEMENTARY INFORMATION: The Board provides final appellate review 
within the Department of Veterans Affairs (VA) of questions of law and 
fact relating to benefit determinations concerning veterans, their 
dependents, and their survivors. This document amends the Board's Rules 
of Practice, which are set forth at 38 CFR Part 20.
    When a case is appealed to the Board the evidence of record is 
transferred to the Board for review. After the record has been 
transferred to the Board, additional evidence may be received and 
accepted by the Board under Sec. 20.1304 of the Board's Rules of 
Practice and Sec. 19.37(b) of the Board's Appeals Regulations (38 CFR 
Part 19).
    With respect to such ``additional evidence,'' 38 CFR 20.1304(c), 
immediately prior to the effective date of this document, stated:

    (c) Consideration of additional evidence by agency of original 
jurisdiction. Any pertinent evidence submitted by the appellant or 
representative which is accepted by the Board under the provisions 
of this section, as well as any such evidence referred to the Board 
by the originating agency under Sec. 19.37(b) of this chapter, must 
be referred to the agency of original jurisdiction for review and 
preparation of a Supplemental Statement of the Case unless this 
procedural right is waived by the appellant or unless the Board 
determines that the benefit, or benefits, to which the evidence 
relates may be allowed on appeal without such referral. Such waiver 
must be in writing or, if a hearing on appeal is conducted, formally 
entered on the record orally at the time of the hearing.

    This document amends Sec. 20.1304(c) to specify that the appellant 
``or representative,'' and not solely the appellant, may waive the 
right to have the additional evidence referred to the ``agency of 
original jurisdiction for review and preparation of a Supplemental 
Statement of the Case.''
    This amendment is necessary because there has been confusion as to 
whether such a waiver may only be made by an appellant. This amendment 
is intended to provide clarification and to be consistent with general 
principles permitting use of representatives by VA claimants. Also, 
this amendment will help expedite the handling of appeals.
    This final rule concerns agency procedure or practice and, 
consequently, pursuant to 5 U.S.C. 553 is exempt from notice and 
comment requirements.
    The Secretary hereby certifies that this final rule will not have a 
significant economic impact on a substantial number of small entities 
as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-
612. This rule will affect VA beneficiaries and will not affect small 
businesses. Therefore, pursuant to 5 U.S.C. 605(b), this final rule is 
exempt from the initial and final regulatory flexibility analyses 
requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 20

    Administrative practice and procedure, Claims, Lawyers, Legal 
services, Veterans.

    Approved: May 2, 1995.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR Part 20 is amended 
as set forth below:

PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE

    1. The authority citation for part 20 continues to read as follows:

    Authority: 38 U.S.C. 501(a).


Sec. 20.1304  [Amended]

    2. In Sec. 20.1304, the first sentence in paragraph (c) is amended 
by adding ``or representative'' immediately after ``unless this 
procedural right is waived by the appellant''.

[FR Doc. 95-11888 Filed 5-12-95; 8:45 am]
BILLING CODE 8320-01-P