[Federal Register Volume 62, Number 128 (Thursday, July 3, 1997)]
[Proposed Rules]
[Pages 36038-36039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-17414]


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

DEPARTMENT OF VETERANS AFFAIRS

Board of Veterans' Appeals

38 CFR Part 19

RIN 2900-AI50


Appeals Regulations: Remand for Further Development

AGENCY: Board of Veterans' Appeals, Department of Veterans Affairs.

ACTION: Proposed rule.

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

SUMMARY: This document proposes to change the appeals regulations of 
the Board of Veterans' Appeals (Board) of the Department of Veterans 
Affairs (VA). The regulations would be changed regarding the 
circumstances in which the Board must remand a case to the VA field 
facility with original jurisdiction in the case. The changes are 
proposed to help avoid unnecessary remands.

DATES: Comments must be received on or before August 4, 1997.

ADDRESSES: Mail or hand deliver written comments to: Director, Office 
of Regulations Management (02D), Department of Veterans Affairs, 810 
Vermont Ave., NW, Room 1154, Washington, DC 20420. Comments should 
indicate that they are submitted in response to ``RIN 2900-AI72.'' All 
written comments received will be available for public inspection at 
the above address in the Office of Regulations Management, Room 1158, 
between the hours of 8:00 a.m. and 4:30 p.m., Monday through Friday 
(except holidays).

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 is an administrative body that 
decides appeals from denials of claims for veterans' benefits. The 
appeals come to the Board from ``agencies of original jurisdiction'' 
(AOJs), typically one of VA's 58 regional offices.
    The provisions of 38 CFR 19.9 require the Board to remand a case to 
the AOJ if ``it [were] determined that further evidence or 
clarification of the evidence or correction of a procedural defect is 
essential for a proper appellate decision.'' The current rule appears 
to be unsatisfactory in two ways.
    First, Sec. 19.9 only imposes the requirement for a remand; it does 
not except specific kinds of evidentiary development we intended the 
Board to carry out without remand to an AOJ. Those specific kinds of 
evidentiary development are (1) Board requests for opinions from the VA 
Under Secretary for Health, the Armed Forces Institute of Pathology, 
the VA General Counsel, and independent medical experts under 38 CFR 
20.901, see Austin v. Brown, 6 Vet. App. 547, 553-54 (1994), and (2) 
Board supplementation of the record with recognized medical treatises 
in accordance with Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). 
Proposed Sec. 19.9(b) would except from the remand requirement each of 
these kinds of evidentiary development, as well as matters over which 
the Board has original jurisdiction.
    Second, by requiring a remand to correct a procedural defect whose 
correction is essential for a proper appellate decision, Sec. 19.9 
causes unnecessary remands because some procedural defects cannot be 
corrected by an AOJ or can be corrected more efficiently by the Board 
itself. For example, if an appellant's desires concerning a hearing are 
unclear, the Board can clarify them as easily as can an AOJ. A remand 
merely for clarification of an appellant's hearing desires would be 
time-consuming, and premature if the appellant wanted a hearing before 
the Board. Therefore, it is proposed to amend Sec. 19.9(a) to not 
require a remand to clarify procedural matters before the Board, such 
as an appellant's request for a hearing before the Board.
    Avoiding unnecessary remands helps the Board reduce its response 
time on appeals. A remand by the Board is in the nature of a 
preliminary order, not a final Board decision, 38 CFR 20.1100(b); 
Zevalkink v. Brown, 6 Vet. App. 483, 488 (1994), and results in at 
least one additional adjudication at the AOJ, 38 CFR 19.38. If that 
additional adjudication does not result in the granting of all benefits 
sought, the case must be returned to the Board for a final decision. 
Id. In any event, a remand necessarily extends the time an appellant 
must wait for a final decision on his or her claim. In addition, 
because the majority of remands eventually return to the Board for 
adjudication, remands increase the Board's response time on appeals in 
general.
    Remands for technical reasons that do not affect an appellant's 
right to due process--such as the choice of representative, 
clarification of the issues on appeal, or requests for hearings before 
the Board--do not produce evidence which can result in a grant of 
benefits by the AOJ. Particularly when such clarification could be 
easily undertaken by the Board, those remands result only in a return 
of the case to the Board with procedural clarification, needless delay 
for the individual appellant and additional delay for all appellants. 
The purpose of this proposal to change Sec. 19.9 is to reduce 
unnecessary remands, while protecting appellants' right to have any 
evidence considered in the first instance by the AOJ.
    Proposed Sec. 19.9 would require the Board to remand a case to the 
AOJ when additional evidence or clarification of the evidence or 
correction of a procedural defect is essential for a proper appellate 
decision, but would specify that the Board need not remand a case to 
clarify procedural matters before the Board, such as the choice of 
representative, the issues on appeal, or requests for hearings before 
the Board.
    The proposed rule would not apply to requests for medical or legal 
opinions under 38 CFR 20.901, which continue to be exceptions to the 
general rule requiring remand to the AOJ if new evidence is properly 
before the Board. See Austin v. Brown, 6 Vet. App. 547, 553-54 (1994) 
(Sec. 20.901 ``appear[s] to be the exclusive regulatory exception to 
the general rule of mandatory remand under Sec. 19.9''). The rule also 
would not apply to matters in which the Board has original jurisdiction 
under 38 CFR 20.609 (relating to representatives' fees) and Sec. 20.610 
(relating to representatives' expenses), since those cases, by their 
terms, do not involve adjudications by AOJs.
    VA routinely provides for a 60-day comment period for proposed 
rules. However, the comment period for this document is shortened to 30 
days. We believe that VA should consider the issues raised by this 
document on an expedited basis since it appears that adoption of the 
proposal would help avoid unnecessary remands.
    The Secretary hereby certifies that the adoption of the proposed 
rule would not

[[Page 36039]]

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 proposed rule would affect only VA's processing of 
claims and will not affect small businesses. Therefore, pursuant to 5 
U.S.C. 605(b), this proposed rule is exempt from the initial and final 
regulatory flexibility analyses requirements of sections 603 and 604.

List of Subjects in 38 CFR Part 19

    Administrative practice and procedure, Claims, Veterans.

    Approved: June 25, 1997.
Jesse Brown,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 19 is proposed 
to be amended 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).

    2. In subpart A, Sec. 19.9 is revised to read as follows:


Sec. 19.9  Remand for further development.

    (a) General. If 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. A remand is not required to clarify procedural 
matters before the Board, including appellant's choice of 
representative before the Board, the issues on appeal, and requests for 
hearings before the Board.
    (b) Scope. This section does not apply to:
    (1) The Board's requests for opinions under Rule 901 (Sec. 20.901 
of this chapter);
    (2) The Board's supplementation of the record with recognized 
medical treatises; and
    (3) Matters over which the Board has original jurisdiction 
described in Rules 609 and 610 (Secs. 20.609 and 20.610 of this 
chapter).

(Authority: 38 U.S.C. 7102, 7103(c), 7104(a))

[FR Doc. 97-17414 Filed 7-2-97; 8:45 am]
BILLING CODE 8320-01-P