[Federal Register Volume 60, Number 192 (Wednesday, October 4, 1995)]
[Rules and Regulations]
[Pages 51922-51923]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-24501]



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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Part 20

RIN 2900-AH57


Rules of Practice--Advancement on the Docket

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends the Rules of Practice of the Board of 
Veterans' Appeals (the Board) to provide that an appeal may be advanced 
on the Board's docket where administrative error results in significant 
delay in docketing the appeal. The Board's current Rules of Practice do 
not address the problem of administrative error with respect to 
advancement on the docket. The Rules of Practice are also amended to 
provide that the Board may advance a case on the docket on its own 
motion, the motion of the appellant, or the motion of the appellant's 
representative.

EFFECTIVE DATE: October 4, 1995.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Chief Counsel, Board 
of Veterans' Appeals, Department of Veterans Affairs, 810 Vermont 
Avenue, NW, Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals (the Board) 
decides appeals of claims for veterans' benefits. At the close of 
Fiscal Year 1994, more than 47,000 appeals were pending at the Board.
    Generally, the law requires that the Board consider each case in 
regular order according to the case's place on the Board's docket. 38 
U.S.C. 7107(a)(1). The Board assigns docket numbers. Prior to 1994, 
docket numbers were assigned when the claims file was physically 
transferred from the agency of original jurisdiction (typically one of 
the Department's 58 regional offices) to the Board's offices in 
Washington, D.C. Beginning in 1994, the Board instituted a new 
procedure under which docket numbers are assigned as soon as the agency 
of original jurisdiction forwards a photocopy of the notice of appeal 
(VA Form 9) to the Board.
    The law permits a case to be ``advanced on the docket'' upon motion 
only if it involves interpretation of law of general application 
affecting other claims or for other sufficient cause shown. 38 U.S.C. 
7107(a)(2). Because of the large numbers of appeals--on average, the 
Board receives from 35,000 to 40,000 per year--the Board has taken a 
restrictive view of its authority to advance cases on the docket. The 
current regulation, 38 CFR 20.900(c), provides just two examples of 
``other 

[[Page 51923]]
sufficient cause shown'' (described in the regulation as ``good 
cause''): (1) terminal illness and (2) extreme hardship which might be 
relieved in whole or in part if the benefits sought on appeal were 
granted.
    The current regulation does not deal with the appeals which, due to 
administrative error, have not been properly processed, resulting in a 
significant delay in assignment of a docket number which does not, in 
turn, fairly represent that appeal's true place in the queue of cases 
waiting to be decided.
    Further, with respect to the change in 1994 to the Board's 
docketing procedures described above, we have learned that some cases 
which were at regional offices awaiting hearings by traveling members 
of the Board under former 38 U.S.C. 7110 were not properly identified 
to the Board at the time of change. As a result, cases that should have 
numbers reflecting docketing in early 1994 may instead be assigned 
docket numbers reflecting mid- or late-1995 docketing.
    To address these problems, this document amends the Rules of 
Practice to provide that ``good cause'' for advancing a case on the 
docket also includes administrative error which results in significant 
delay in docketing the appeal.
    The Rules of Practice are also amended to provide that a motion to 
advance a case on the docket may be made by the Chairman, the Vice 
Chairman, the appellant, or the appellant's representative.
    Finally, the Rules of Practice are amended to (1) delete the 
requirement that the Chairman make the decision on the motion to 
advance and (2) provide that, where a motion is received prior to the 
assignment of the appeal to an individual member or panel of members, 
the ruling on the motion will be by the Vice Chairman, who may delegate 
that authority to a Deputy Vice Chairman. This change is required 
because (1) 38 U.S.C. 7102(b), as added by Pub. L. No. 103-271, 
prohibits cases from being assigned to the Chairman as an individual 
member, and (2) to maintain consistency in the decisions on such 
motions.
    This final rule consists of agency policy, procedure, or practice 
and, consequently, pursuant to 5 U.S.C. 553, is exempt from notice and 
comment and effective date provisions.
    The Secretary hereby certifies that this final regulatory amendment 
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. The rule would not directly affect any small entities. 
Only VA beneficiaries would be directly affected. Pursuant to 5 U.S.C. 
605(b), this final regulation is therefore exempt from the initial and 
final regulatory flexibility analysis requirements of sections 603 and 
604.
    There are no Catalog of Federal Domestic Assistance numbers 
associated with this final rule.

List of Subjects in 38 CFR Part 20

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

    Approved: September 25, 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).

Subpart J--Action by the Board

    2. In Sec. 20.900, the first four sentences in paragraph (c), the 
seventh sentence in paragraph (c), and the authority citation at the 
end of the section are revised to read as follows:


Sec. 20.900   Rule 900. Order of consideration of appeals.

* * * * *
    (c) Advancement on the docket. A case may be advanced on the docket 
if it involves an interpretation of law of general application 
affecting other claims or for other good cause. Examples of such good 
cause include terminal illness, extreme hardship which might be 
relieved in whole or in part if the benefits sought on appeal were 
granted, administrative error which results in significant delay in 
docketing the appeal, etc. Advancement on the docket may be requested 
by motion of the Chairman, the Vice Chairman, the appellant, or the 
appellant's representative. Such motions must be in writing and must 
identify the law of general application affecting other claims or other 
good cause involved. * * * Where a motion is received prior to the 
assignment of the case to an individual member or panel of members, the 
ruling on the motion will be by the Vice Chairman, who may delegate 
such authority to a Deputy Vice Chairman. * * *

(Authority: 38 U.S.C. 7107(a))

[FR Doc. 95-24501 Filed 10-3-95; 8:45 am]
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