[Federal Register Volume 61, Number 89 (Tuesday, May 7, 1996)]
[Rules and Regulations]
[Pages 20447-20453]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11279]
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DEPARTMENT OF THE TREASURY
DEPARTMENT OF VETERANS AFFAIRS
Board of Veterans' Appeals
38 CFR Parts 19 and 20
RIN 2900-AH16
Appeals Regulations, Rules of Practice: Single Member and Panel
Decisions; Reconsiderations; Order of Consideration
AGENCY: Department of Veterans Affairs.
ACTION: Final rule.
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SUMMARY: This document amends the Appeals Regulations and Rules of
Practice of the Board of Veterans'' Appeals. The amendments incorporate
recent statutory changes (including provisions to allow matters to be
decided by individual Board members), set forth procedures regarding
reconsideration of decisions, change office names and designations due
to administrative changes within the Board, and make other
nonsubstantive changes.
DATES: Effective Date: This final rule is effective May 7, 1996.
Applicability Dates: The incorporation of statutory provisions and
statutory interpretations contained in this final rule will be applied
retroactively from the effective dates of the statutory provisions. For
more information concerning the application of the provisions of this
final rule, see the SUPPLEMENTARY INFORMATION section.
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: This document amends the Appeals
Regulations, 38 CFR Part 19, and the Rules of Practice, 38 CFR Part 20,
of the
[[Page 20448]]
Board of Veterans' Appeals (Board). The Board adjudicates appeals of
denials of claims for veterans' benefits.
Public Law 103-271
In large part, the amendments made by this document reflect
statutory changes made by Public Law 103-271.
Changes are made to Secs. 19.3, 19.9, 19.11, 19.12, 19.76, 20.3,
20.102, 20.401, 20.606, 20.700, 20.702 through 20.705, 20.707 through
20.708, 20.711, 20.714 through 20.717, 20.901, 20.1003, and 20.1100, to
reflect that, under Public Law 103-271, the Board's Chairman may assign
matters, including hearings, to individual Board members or to panels
of three or more members.
Changes are made to Secs. 19.3, 19.11, 20.102, 20.608, 20.707,
20.711, 20.717, and 20.1304 to reflect that, under Public Law 103-271,
a proceeding may not be assigned to the Chairman as an individual
member but that the Chairman may participate in a proceeding assigned
to a panel, or in a reconsideration assigned to a panel, and to reflect
how a reconsideration panel is to be constituted.
Changes are made to Secs. 19.11 and 20.707 to reflect that, under
Public Law 103-271, reconsideration of a matter heard by a single
member shall be referred to a panel of not less than three Board
members, that reconsideration of a matter heard by a panel of members
shall be referred to an enlarged panel, and that a reconsideration
panel may not include any member who made the decision that is being
reconsidered.
Changes are made to Secs. 19.75 and 20.704 to reflect that, under
Public Law 103-271, hearings at a facility within the area served by a
VA regional office shall be scheduled to be held in the order in which
requested, but may be scheduled earlier if the appellant is seriously
ill or under severe financial hardship.
Changes are made to Sec. 20.3 to reflect that, under Public Law
103-271, in lieu of a personal hearing, an appellant may participate in
a Board hearing through picture or through voice transmission, by
electronic or other means, with the Board member or members at the
Board's principal location.
Miscellaneous
In addition, definitions of ``electronic hearing'' and ``presiding
member'' have been added to Sec. 20.3 to reflect the Board's
interpretation of Public Law 103-271 and, in Sec. 20.900, paragraph (b)
has been revised and paragraph (d) added to reflect the Board's
interpretation of the requirement, established by Public Law 103-446,
Section 302, that cases remanded by the Court of Veterans Appeals be
treated expeditiously.
Further, Sec. 19.11(b) has been amended to provide that
reconsideration panels are to be enlarged in increments of three as
necessary to obtain a majority decision. This constitutes the policy
for the Board to use in implementing the provisions of Public Law 103-
271.
Finally, Parts 19 and 20 are amended to update current titles and
designations within the Board, and to make other nonsubstantive
changes.
This final rule consists of incorporation of statutory provisions,
interpretive rules, rules of agency procedure or practice, and
nonsubstantive changes and, therefore, is not subject to the notice and
comment and effective date provisions of 5 U.S.C. 553.
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 (RFA), 5 U.S.C.
601-602, since it does not contain any substantive provisions. This
final rule would not cause a significant effect on any entities.
Therefore, pursuant to 5 U.S.C. 605(b), this amendment is exempt from
the initial and final regulatory flexibility analysis requirements of
sections 603 and 604.
Incorporation of statutory provisions and statutory interpretations
made by this final rule will be applied retroactively from the
effective dates of the statutory provisions. The dates of application
for such changes and for certain of the nonsubstantive changes made for
clarity, to correct typographical errors, or to reflect statutory
recodification changes are as follows:
July 1, 1994: Secs. 19.3(a) and (b); 19.4; 19.9; 19.11; 19.12(b);
19.75; 19.76; 20.3(h) and (n); 20.102(c) and (d); 20.401(b); 20.606(a),
(b), and (d); 20.608(b)(2); 20.700(b) and (d); 20.702(a), (c), (d), and
(e); 20.704(a), (c), (d), (e), and (f); 20.705(b); 20.707; 20.708;
20.711(e) and (h); 20.714(a)(4); 20.715; 20.716; 20.717(d); 20.901(e);
20.1003; 20.1100(a); and 20.1304(b).
November 2, 1994: Sec. 20.900(b) and (d).
List of Subjects
38 CFR Part 19
Administrative practice and procedure, Claims, Veterans.
38 CFR Part 20
Administrative practice and procedure, Claims, Lawyers, Legal
services, Veterans.
Approved: April 30, 1996.
Jesse Brown,
Secretary of Veterans Affairs.
For the reasons set out in the preamble, title 38 of the Code of
Federal Regulations, parts 19 and 20, are amended under the authority
of Public Law 103-271, 108 Stat. 740, and Public Law 103-446, 108 Stat.
4645, as set forth below:
PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS
1. The authority citation for part 19 continues to read as follows:
Authority: 38 U.S.C. 501(a)
Subpart A--Operation of the Board of Veterans' Appeals
2. Section 19.2 is revised to read as follows:
Sec. 19.2 Composition of the Board.
The Board consists of a Chairman, Vice Chairman, Deputy Vice
Chairmen, Members and professional, administrative, clerical and
stenographic personnel. Deputy Vice Chairmen are Members of the Board
who are appointed to that office by the Secretary upon the
recommendation of the Chairman.
(Authority: 38 U.S.C. 501(a), 512, 7101(a))
3. Section 19.3 is revised to read as follows:
Sec. 19.3 Assignment of proceedings.
(a) Assignment. The Chairman may assign a proceeding instituted
before the Board, including any motion, to an individual Member or to a
panel of three or more Members for adjudication or other appropriate
action. The Chairman may participate in a proceeding assigned to a
panel of Members.
(Authority: 38 U.S.C. 7102)
(b) Inability to serve. If a Member is unable to participate in the
disposition of a proceeding or motion to which the Member has been
assigned, the Chairman may assign the proceeding or motion to another
Member or substitute another Member (in the case of a proceeding or
motion assigned to a panel).
Authority: 38 U.S.C. 7101(a), 7102)
Sec. 19.4 [Amended]
In Sec. 19.4 the authority citation is revised to read as follows:
(Authority: 38 U.S.C. 7102, 7104, 7107)
5. Section 19.7 is amended by adding a new paragraph (c) to read as
follows:
Sec. 19.7 The decision.
* * * * *
[[Page 20449]]
(c) A decision by a panel of Members will be by a majority vote of
the panel Members.
6. Section 19.9 is revised to read as follows:
Sec. 19.9 Remand for further development.
When, during the course of review, it is determined that further
evidence or clarification of the evidence or correction of a procedural
defect is essential for a proper appellate decision, a Member or panel
of Members of the Board shall remand the case to the agency of original
jurisdiction, specifying the action to be undertaken.
(Authority: 38 U.S.C. 7102, 7104(a))
7. Section 19.11 is revised to read as follows:
Sec. 19.11 Reconsideration panel.
(a) Assignment of Members. When a motion for reconsideration is
allowed, the Chairman will assign a panel of three or more Members of
the Board, which may include the Chairman, to conduct the
reconsideration.
(b) Number of Members constituting a reconsideration panel. In the
case of a matter originally heard by a single Member of the Board, the
case shall be referred to a panel of three Members of the Board. In the
case of a matter originally heard by a panel of Members of the Board,
the case shall be referred to an enlarged panel, consisting of three or
more Members than the original panel. In order to obtain a majority
opinion, the number of Members assigned to a reconsideration panel may
be increased in successive increments of three.
(c) Members included in the reconsideration panel. The
reconsideration panel may not include any Member who participated in
the decision that is being reconsidered. Additional Members will be
assigned in accordance with paragraph (b) of this section.
(Authority: 38 U.S.C. 7102, 7103)
8. Section 19.12(b) is revised to read as follows:
Sec. 19.12 Disqualification of Members.
* * * * *
(b) Appeal on same issue subsequent to decision on administrative
appeal. Any Member of the Board who made the decision on an
administrative appeal will disqualify himself or herself from acting on
a subsequent appeal by the claimant on the same issue.
(Authority: 38 U.S.C. 7102, 7104, 7106)
* * * * *
Subpart B--Appeals Processing by Agency of Original Jurisdiction
Sec. 19.30 [Amended]
9. In Sec. 19.30 paragraph (b), is amended by removing ``VA Form 1-
9'' and adding, in its place, ``VA Form 9''.
Sec. 19.31 [Amended]
10. In Sec. 19.31, the last sentence is removed.
Sec. 19.35 [Amended]
11. Section 19.35 is amended by removing ``VA Form 1-8'' and
adding, in its place, ``VA Form 8''.
Subpart C--Administrative Appeals
12. Section 19.51(a)(1) is revised to read as follows:
Sec. 19.51 Officials authorized to file administrative appeals and
time limits for filing.
* * * * *
(a) Central Office--(1) Officials. The Under Secretary for Benefits
or a service director of the Veterans Benefits Administration, the
Under Secretary for Health or a service director of the Veterans Health
Administration, and the General Counsel.
* * * * *
13. The heading for Subpart D is revised to read as follows:
Subpart D--Hearings Before the Board of Veterans' Appeals at
Department of Veterans Affairs Field Facilities
14. Section 19.75 is revised to read as follows:
Sec. 19.75 Hearing docket.
Hearings on appeal held at Department of Veterans Affairs field
facilities will be scheduled for each area served by a regional office
in the order in which requests for such hearings within that area are
received by the Department except when a motion to advance the case on
the hearing docket is granted under Rule of Practice 704(f) (38 CFR
20.704(f)).
(Authority: 38 U.S.C. 7107)
15. Section 19.76 is revised to read as follows:
Sec. 19.76 Notice of time and place of hearing before the Board of
Veterans' Appeals at Department of Veterans Affairs field facilities.
The agency of original jurisdiction will notify the appellant and
his or her representative of the place and time of a hearing before the
Board of Veterans' Appeals at a Department of Veterans Affairs field
facility not less than 60 days prior to the hearing date. This time
limitation does not apply to hearings which have been rescheduled due
to a postponement requested by an appellant, or on his or her behalf,
or due to the prior failure of an appellant to appear at a scheduled
hearing before the Board of Veterans' Appeals at a Department of
Veterans Affairs field facility with good cause. The right to notice at
least 60 days in advance will be deemed to have been waived if an
appellant accepts an earlier hearing date due to the cancellation of
another previously scheduled hearing.
(Authority: 38 U.S.C. 7107)
Sec. 19.77 [Removed and revised]
16. Section 19.77 is removed, and revised.
Subpart E--Simultaneously Contested Claims
17. Section 19.101 is amended by removing ``VA Form 1-9'' and
adding, in its place, ``VA Form 9''.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
18. The authority citation for part 20 continues to read as
follows:
Authority: 38 U.S.C. 501(a)
Subpart A--General
19. Section 20.3 is amended by redesignating paragraphs (h), (i),
(j), (k), (l), (m), and (n) as (i), (j), (k), (l), (m), (o), and (p)
respectively, and adding new paragraphs (h) and (n) to read as follows:
Sec. 20.3 Rule 3. Definitions.
* * * * *
(h) Electronic hearing means a hearing on appeal in which an
appellant or a representative participates, through voice transmission
or through picture and voice transmission, by electronic or other
means, in a hearing with a Member or Members sitting at the Board's
principal location in Washington, DC.
* * * * *
(n) Presiding Member means that Member of the Board who presides
over a hearing, whether conducted as a single Member or panel hearing.
* * * * *
Subpart B--The Board
20. In Sec. 20.102 paragraph (d) is removed, and paragraph (c) is
revised to read as follows:
Sec. 20.102. Rule 102. Delegation of authority--Rules of Practice.
* * * * *
(c) The authority exercised by the Chairman of the Board of
Veterans'
[[Page 20450]]
Appeals described in Rules 2 and 606(e) (Secs. 20.2, and 20.606(e) of
this part), may also be exercised by the Vice Chairman of the Board; by
Deputy Vice Chairmen of the Board; and, in connection with a proceeding
or motion assigned to them by the Chairman, by a Member or Members of
the Board.
* * * * *
Subpart C--Commencement and Perfection of Appeal
Sec. 20.202 [Amended]
21. Section 20.202 is amended by removing ``VA Form 1-9'' and
adding, in its place, ``VA Form 9''.
Subpart E--Administrative Appeals
22. In Sec. 20.401, paragraph (b) is revised to read as follows:
Sec. 20.401 Rule 401. Effect of decision on administrative or merged
appeal on claimant's appellate rights.
* * * * *
(b) Appeal not merged. If the claimant does not authorize merger,
normal appellate rights on the same issue are preserved, and the
Chairman will assign the proceeding to a Member or panel of Members of
the Board who did not make the decision on the administrative appeal.
The period of time from the date of notification to the claimant of the
administrative appeal to the date of the Board's decision on the
administrative appeal is not chargeable to the claimant for purposes of
determining the time limit for perfecting his or her separate appeal.
* * * * *
Subpart G--Representation
Sec. 20.603 [Amended]
23. Section 20.603(a) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.604 [Amended]
24. Section 20.604(a) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.605 [Amended]
25. Section 20.605(c) is amended by removing ``VA Form 2-22a'' and
adding, in its place, ``VA Form 22a''.
Sec. 20.606 [Amended]
26. In Sec. 20.606, paragraph (a) is amended by removing ``before
traveling Sections of the Board''. Paragraph (b) is amended by removing
``Chief, Hearing Section (014B)'' and adding, in its place, ``Director,
Administrative Service (014)''; and by removing ``appeals before
traveling Sections of the Board'' and adding, in its place, ``hearings
before a Member or Members of the Board at Department of Veterans field
facilities''; and by removing ``traveling Section'' and adding, in its
place, ``hearing''. Paragraph (d) is amended by removing ``Chief of
Hearing Section'' and adding, in its place, ``Director of the
Administrative Service''; and by removing ``proceedings before
traveling Sections'' and adding, in its place, ``hearings before a
Member or Members''; and by revising the phrase ``not more than 10 days
prior to the scheduled hearing date'' to read, ``not less than 10 days
prior to the scheduled hearing date,'' and reinserting it directly
after the first appearance of ``attorney-at-law'' in the second
sentence; and removing ``traveling Section'' in the third sentence and
adding, in its place, ``hearing''.
Sec. 20.608 [Amended]
27. In Sec. 20.608, paragraph (b)(2), the last sentence is removed.
28. The heading for Subpart H is revised to read as follows:
Subpart H--Hearings on Appeal
29. In Sec. 20.700, paragraph (b) is amended in the third sentence
by removing ``personal'', and by removing ``of the hearing panel
involved'' in the last sentence and adding, in its place, ``assigned to
conduct the hearing''; paragraph (d) is amended in the second sentence
by removing ``a Board of Veterans' Appeals hearing panel'' and adding,
in its place, ``the Board of Veterans Appeals'', and by removing
``panel members'' in the third sentence and adding, in its place,
``Member or Members to whom the appeal has been assigned for a
determination''; a new paragraph (e) is added; and the authority
citation is revised to read as follows.
Sec. 20.700 Rule 700. General.
* * * * *
(e) Electronic hearings. When suitable facilities and equipment are
available, an appellant may be scheduled for an electronic hearing. Any
such hearing will be in lieu of a hearing held by personally appearing
before a Member or panel of Members of the Board and shall be conducted
in the same manner as, and considered the equivalent of, such a
hearing. If an appellant declines to participate in an electronic
hearing, the appellant's opportunity to participate in a hearing before
the Board shall not be affected.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.701 [Amended]
30. In Sec. 20.701, the authority citation is revised to read as
follows:
(Authority: 38 U.S.C. 7102, 7105, 7107)
31. Section 20.702 is amended by revising the last sentence in
paragraph (c)(1), the last two sentences in paragraph (c)(2), the
fourth and last sentences in paragraph (d), the last sentence in
paragraph (e), and the authority citations for paragraphs (a) through
(e) to read as follows:
Sec. 20.702 Rule 702. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals in Washington, DC.
(a) * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(b) * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(c) Requests for changes in hearing dates. (1) * * * In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, such requests for a new hearing date must be filed
with: Director, Administrative Service (014), Board of Veterans'
Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(2) * * * In the case of a hearing conducted by the Board of
Veterans' Appeals in Washington, DC, whether good cause for
establishing a new hearing date has been shown will be determined by
the presiding Member assigned to conduct the hearing. In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, the motion for a new hearing date must be filed with:
Director, Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)
(d) Failure to appear for a scheduled hearing. * * * In the case of
hearings to be conducted by the Board of Veterans' Appeals in
Washington, DC, the motion must be filed with: Director, Administrative
Service (014), Board of Veterans' Appeals, 810 Vermont Avenue, NW.,
Washington, DC 20420. * * * In the case of hearings before the Board of
Veterans' Appeals in Washington, DC, whether good cause for such
failure to appear has been established will be determined by the
presiding Member assigned to conduct the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7105A, 7107)
(e) Withdrawal of hearing requests. * * * In the case of hearings
to be conducted by the Board of Veterans' Appeals in Washington, DC,
the notice of withdrawal must be sent to: Director, Administrative
Service (014), Board of
[[Page 20451]]
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
(Approved by the Office of Management and Budget under control
number 2900-0085)
32. Section 20.703 is revised to read as follows:
Sec. 20.703 Rule 703. When right arises to hearing before the Board of
Veterans' Appeals at a Department of Veterans Affairs field facility.
A hearing before the Board of Veterans' Appeals at a Department of
Veterans Affairs field facility is a ``hearing on appeal.''
Accordingly, there is no right to such a hearing until a Notice of
Disagreement has been filed. Any request for such a hearing filed with
a Notice of Disagreement, or filed subsequent to the filing of a Notice
of Disagreement, will be accepted by the agency of original
jurisdiction. Requests for such hearings filed before a Notice of
Disagreement has been filed, or after the Board has entered a final
decision in the case on the issue (or issues) appealed will be
rejected, except for requests for such hearings after a Notice of
Disagreement has been filed appealing a denial of benefits in a
reopened claim which followed a prior Board decision or after a motion
for reconsideration of a prior Board decision has been granted.
(Authority: 38 U.S.C. 7105(a), 7107)
33. In Sec. 20.704, the section heading; paragraphs (a), (c), (d),
and (e); and the authority citation are revised and paragraph (f) is
added to read as follows:
Sec. 20.704 Rule 704. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals at Department of Veterans Affairs field
facilities.
(a) General. Hearings are conducted by a Member or Members of the
Board of Veterans' Appeals during prescheduled visits to Department of
Veterans Affairs facilities having adequate physical resources and
personnel for the support of such hearings. The hearings will be
scheduled in the order in which requests for such hearings within that
area were received by the agency of original jurisdiction, except as
provided in paragraph (f). Requests for such hearings must be submitted
to the agency of original jurisdiction, in writing, and should not be
submitted directly to the Board of Veterans' Appeals.
* * * * *
(c) Requests for changes in hearing dates. Requests for a change in
a hearing date may be made at any time up to two weeks prior to the
scheduled date of the hearing if good cause is shown. Such requests
must be in writing, must explain why a new hearing date is necessary,
and must be filed with the office of the official of the Department of
Veterans Affairs who signed the notice of the original hearing date.
Examples of good cause include, but are not limited to, illness of the
appellant and/or representative, difficulty in obtaining necessary
records, and unavailability of a necessary witness. If good cause is
shown, the hearing will be rescheduled for the next available hearing
date after the appellant or his or her representative gives notice that
the contingency which gave rise to the request for postponement has
been removed. If good cause is not shown, the appellant and his or her
representative will be promptly notified and given an opportunity to
appear at the hearing as previously scheduled. If the appellant elects
not to appear at the prescheduled date, the request for a hearing will
be considered to have been withdrawn. In such cases, however, the
record will be submitted for review by the Member who would have
presided over the hearing. If the presiding Member determines that good
cause has been shown, the hearing will be rescheduled for the next
available hearing date after the contingency which gave rise to the
request for postponement has been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled hearing
and a request for postponement has not been received and granted, the
case will be processed as though the request for a hearing had been
withdrawn. No further request for a hearing will be granted in the same
appeal unless such failure to appear was with good cause and the cause
for the failure to appear arose under such circumstances that a timely
request for postponement could not have been submitted prior to the
scheduled hearing date. A motion for a new hearing date following a
failure to appear for a scheduled hearing must be in writing, must be
filed within 15 days of the originally scheduled hearing date, and must
explain why the appellant failed to appear for the hearing and why a
timely request for a new hearing date could not have been submitted.
Such motions must be filed with: Director, Administrative Service
(014), Board of Veterans' Appeals, 810 Vermont Avenue, NW., Washington,
DC 20420. Whether good cause for such failure to appear and the
impossibility of timely requesting postponement have been established
will be determined by the Member who would have presided over the
hearing. If good cause and the impossibility of timely requesting
postponement are shown, the hearing will be rescheduled for the next
available hearing date at the same facility after the appellant or his
or her representative gives notice that the contingency which gave rise
to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be
withdrawn by an appellant at any time before the date of the hearing. A
request for a hearing may not be withdrawn by an appellant's
representative without the consent of the appellant. Notices of
withdrawal must be submitted to the office of the Department of
Veterans Affairs official who signed the notice of the hearing date.
(f) Advancement of the case on the hearing docket. A hearing may be
scheduled at a time earlier than would be provided for under paragraph
(a) upon written motion of the appellant or the representative showing
that the appellant is seriously ill or under severe financial hardship.
The motion must be filed with the Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. The ruling on the motion
will be by the Member assigned as the presiding Member for the hearing.
(Authority: 38 U.S.C. 7107)
(Approved by the Office of Management and Budget under control
number 2900-0085)
34. Section 20.705(b) and the authority citation are revised to
read as follows:
Sec. 20.705 Rule 705. Where hearings are conducted.
* * * * *
(b) At a Department of Veterans Affairs facility having adequate
physical resources and personnel for the support of such hearings.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.706 [Amended]
35. In Sec. 20.706, the authority citation is revised to read as
follows:
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
36. Section 20.707 is revised to read as follows:
Sec. 20.707 Rule 707. Designation of Member or Members to conduct the
hearing.
The Member or panel to whom a proceeding is assigned under
Sec. 19.3 of this part shall conduct any hearing before the Board in
connection with that proceeding. Where a proceeding has been assigned
to a panel, the Chairman,
[[Page 20452]]
or the Chairman's designee, shall designate one of the Members as the
presiding Member. The Member or Members who conduct the hearing shall
participate in making the final determination of the claim, subject to
the exception in Sec. 19.11(c) of this part (relating to
reconsideration of a decision).
(Authority: 38 U.S.C. 7102, 7107)
37. Section 20.708 is revised to read as follows:
Sec. 20.708 Rule 708. Prehearing conference.
An appellant's authorized representative may request a prehearing
conference with the presiding Member of a hearing to clarify the issues
to be considered at a hearing on appeal, obtain rulings on the
admissibility of evidence, develop stipulations of fact, establish the
length of argument which will be permitted, or take other steps which
will make the hearing itself more efficient and productive. With
respect to hearings to be held before the Board at Washington, DC,
arrangements for a prehearing conference must be made through:
Director, Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. Requests for prehearing
conferences in cases involving hearings to be held before the Board at
Department of Veterans Affairs field facilities must be addressed to
the office of the Department of Veterans Affairs official who signed
the letter giving notice of the time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. 20.709 [Amended]
38. Section 20.709 is amended by revising the authority citation to
read as follows:
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
39. Section 20.710 is amended by revising the authority citation to
read as follows:
Sec. 20.710 Rule 710. Witnesses at hearings.
* * * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
40. Section 20.711 is amended by revising paragraphs (e) and (h)
and the authority citation to read as follows:
Sec. 20.711 Rule 711. Subpoenas.
* * * * *
(e) Ruling on motion for subpoena. Where the Chairman has assigned
the appeal to a Member or panel, the ruling on the motion will be made
by that Member or panel. Where the appeal has not been assigned, the
Chairman will assign the matter for the purpose of ruling on the
motion. Where the moving party seeks production of documents or other
tangible evidence, the Member or panel may condition the granting of
the motion upon the advancement by the moving party of the reasonable
cost of producing the books, paper, documents, or other tangible
evidence requested.
* * * * *
(h) Motion to quash or modify subpoena. If an individual served
with a subpoena considers the subpoena to be unreasonable or
oppressive, he or she may move that the subpoena be quashed or
modified. Such motions must be in writing and must explain why the
subpoena is unreasonable or oppressive and what relief is sought. Such
motions must be filed with the Board not more than 10 days following
receipt of the subpoena. Rulings on such motions will be made by the
Member or panel authorizing the subpoena, who will inform all
interested parties of the ruling in writing. The quashing of any
subpoena will be conditional upon the return of the check for fees and
mileage to the party on whose behalf the subpoena was issued.
(Authority: 38 U.S.C. 5711, 7102(a), 7107)
41. In Sec. 20.714, paragraph (a) introductory text is amended by
revising the first sentence; paragraph (a)(1) is amended by removing
``of the hearing panel'' in the second sentence, and by removing
``Chief, Hearing Section (014B)'' in the last sentence and adding, in
its place, ``Director, Administrative Service (014); and paragraph
(a)(4) introductory text and the authority citation at the end of the
section are revised to read as follows:
Sec. 20.714 Rule 714. Record of hearing.
(a) Board of Veterans' Appeals. A hearing before a Member or panel
of Members of the Board, whether held in Washington, DC, or at a
Department of Veterans Affairs field facility, will be recorded on
audio tape. * * *
* * * * *
(4) With respect to hearings conducted by a Member or Members of
the Board at a Department of Veterans Affairs field facility : * * *
* * * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
42. In Sec. 20.715 the last two sentences and the authority
citation are revised to read as follows:
Sec. 20.715 Rule 715. Recording of hearing by appellant or
representative.
* * * In the case of hearings held before the Board of Veterans'
Appeals in Washington, DC, arrangements must be made with the Director
of the Administrative Service (014), Board of Veterans' Appeals, 810
Vermont Avenue, NW., Washington, DC 20420. In the case of hearings held
before the Board at Department of Veterans Affairs field facilities,
arrangements must be made through the office of the Department of
Veterans Affairs official who signed the letter giving notification of
the time and place of the hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
43. In Sec. 20.716 the last two sentences and the authority
citation are revised to read as follows:
Sec. 20.716 Rule 716. Correction of hearing transcripts.
* * * In the case of hearings held before the Board of Veterans'
Appeals, whether in Washington, DC, or in the field, the motion must be
filed with the Director, Administrative Service (014), Board of
Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420. The
ruling on the motion will be made by the presiding Member of the
hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
44. Section 20.717, paragraph (c) is amended by removing ``Chief,
Hearing Section (0141F)'' and adding, in its place, ``Director,
Administrative Service (014); and by revising paragraph (d) and the
authority citation to read as follows:
Sec. 20.717 Rule 717. Loss of hearing tapes or transcripts--motion for
new hearing.
* * * * *
(d) Ruling on motion for a new hearing. The ruling on the motion
for a new hearing will be made by the Member who presided over the
hearing. If the presiding Member is no longer available, the ruling on
the motion may be made by the Member or Members to whom the case has
been assigned for a determination. In cases in which a final Board of
Veterans' Appeals decision has already been promulgated with respect to
the appeal in question, the Chairman will assign the matter in
accordance with Sec. 19.3 of this title. Factors to be considered in
ruling on the motion include, but will not be limited to, the extent of
the loss of the record in those cases where only a portion of a hearing
tape is unintelligible or only a portion of a transcript has been lost
or destroyed, and the extent and reasonableness of any delay in moving
for a new hearing. If a new hearing is granted in a case in which a
final Board of Veterans' Appeals decision has already been promulgated,
a supplemental decision will be issued.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
[[Page 20453]]
Subpart J--Action by the Board
45. Section 20.900 is amended by revising paragraph (b) and the
authority citation, and by adding a new paragraph (d) to read as
follows:
Sec. 20.900 Rule 900. Order of consideration of appeals.
* * * * *
(b) Appeals considered in docket order. Appeals are considered in
the order in which they are entered on the docket, except as provided
in paragraphs (c) and (d).
* * * * *
(d) Consideration of appeals remanded by the United States Court of
Veterans Appeals. A case remanded by the United States Court of
Veterans Appeals for additional development or other appropriate action
will be treated expeditiously by the Board without regard to its place
on the Board's docket.
(Authority: 38 U.S.C. 7107, Pub. Law No. 103-446 Sec. 302)
46. Section 20.901(e) is revised to read as follows:
Sec. 20.901 Rule 901. Medical opinions and opinions of the General
Counsel.
* * * * *
(e) For purposes of this section, the term ``the Board'' includes
the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any
Member of the Board before whom a case is pending.
(Authority: 38 U.S.C. 5107(a), 7104(c), 7109)
Subpart K--Reconsideration
47. Section 20.1003 is revised to read as follows:
Sec. 20.1003 Rule 1003. Hearings on reconsideration.
After a motion for reconsideration has been allowed, a hearing will
be granted if an appellant requests a hearing before the Board. The
hearing will be held by a Member or Members assigned to the
reconsideration panel. A hearing will not normally be scheduled solely
for the purpose of receiving argument by a representative. Such
argument should be submitted in the form of a written brief. Oral
argument may also be submitted on audio cassette for transcription for
the record in accordance with Rule 700(d) (Sec. 20.700(d) of this
part). Requests for appearances by representatives alone to personally
present argument to a Member or panel of Members of the Board may be
granted if good cause is shown. Whether good cause has been shown will
be determined by the presiding Member.
(Authority: 38 U.S.C. 7102, 7103, 7105(a))
Subpart L--Finality
48. In section 20.1100(a), the last sentence is amended by removing
``Section'' and adding, in its place, ``Panel''; and the first sentence
is revised to read as follows:
Sec. 20.1100 Rule 1100. Finality of decisions of the Board.
(a) General. All decisions of the Board will be stamped with the
date of mailing on the face of the decision. * * *
* * * * *
Subpart N--Miscellaneous
Sec. 20.1304 [Amended]
49. In Sec. 20.1304 paragraph (b) is amended by removing the next-
to-the-last sentence reading ``The ruling on the motion will be by the
Chairman.''.
[FR Doc. 96-11279 Filed 5-6-96; 8:45 am]
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