[Federal Register Volume 66, Number 65 (Wednesday, April 4, 2001)]
[Proposed Rules]
[Pages 17840-17842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-8302]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 19 and 20

RIN 2900-AJ97


Board of Veterans' Appeals: Appeals Regulations and Rules of 
Practice--Jurisdiction

AGENCY: Department of Veterans Affairs.

ACTION: Proposed rule.

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SUMMARY: The Department of Veterans Affairs (VA) proposes amending the 
Appeals Regulations and Rules of Practice of the Board of Veterans' 
Appeals (Board) to clarify that the Board may address questions related 
to its jurisdiction in the first instance. VA also proposes to amend 
the Rules of Practice to provide procedures for notifying parties to 
Board proceedings, and their representatives, when the Board raises 
jurisdictional questions on its own initiative and to give parties the 
opportunity to respond.

DATES: Comments must be received on or before June 4, 2001.

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; or fax comments to 
(202) 273-9289; or e-mail comments to [email protected]. 
Comments should indicate that they are submitted in response to ``RIN 
2900-AJ97.'' All comments received will be available for public 
inspection 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, Senior Deputy Vice

[[Page 17841]]

Chairman, Board of Veterans' Appeals, Department of Veterans Affairs, 
810 Vermont Avenue, NW., Washington, DC 20420, (202) 565-5978.

SUPPLEMENTARY INFORMATION: Initial decisions on claims for veterans' 
benefits are made at VA field offices throughout the nation. Claimants 
may appeal those decisions to the Board.
    Filing an appeal with the Board is a 3-step procedure. First, the 
claimant who wishes to begin an appeal files a ``Notice of 
Disagreement'' with the VA office that made the decision with which the 
claimant disagrees. In response, that office sends the claimant a 
``Statement of the Case'' that summarizes the evidence and the 
applicable law, tells the claimant what decision was reached on the 
disputed issues, and gives the reasons for each decision. After 
reviewing the Statement of the Case, the claimant must then file a 
formal, or ``substantive,'' appeal to complete the appeal. See 
generally 38 U.S.C. 7105 and 38 CFR part 19, subpart B, and part 20, 
subpart C.
    In an August 1999 precedent opinion, VAOPGCPREC 9-99, VA's General 
Counsel held that the Board may address the question of the timeliness 
of a substantive appeal, regardless of whether the agency of original 
jurisdiction (AOJ) addressed such question, and may dismiss an appeal 
when it discovers in the first instance that no substantive appeal has 
been filed in a case certified to it for appellate review, or that the 
substantive appeal was not timely filed. The opinion noted, however, 
that the Board's dismissal of an appeal under those circumstances 
raises the possibility that a claimant will be prejudiced by not having 
been afforded the benefit of all procedural safeguards, such as the 
right to notice, the right to a hearing, and the right to submit 
evidence in support of a claim. Thus, it found that, if the Board 
intends to dismiss an appeal on this basis, it should afford the 
claimant adequate procedural protections regarding notice and the 
opportunity to be heard.
    Furthermore, in a case discussing the Board's jurisdiction in 
another context, the United States Court of Appeals for the Federal 
Circuit stated that ``* * * it is well-established judicial doctrine 
that any statutory tribunal must ensure that it has jurisdiction over 
each case before adjudicating the merits, that a potential 
jurisdictional defect may be raised by the court or tribunal, sua 
sponte or by any party, at any stage in the proceedings, and, once 
apparent, must be adjudicated.'' Barnett v. Brown, 83 F.3d 1380, 1383 
(Fed. Cir. 1996) (citations omitted, emphasis in the original).
    This document proposes amending 38 CFR 20.101 to make it clear that 
the Board may address jurisdictional questions in the first instance. 
It would also make it clear that the Board may dismiss an appeal when 
it determines that it does not have jurisdiction, regardless of the 
AOJ's failure to adjudicate the jurisdictional question. This document 
also proposes to include in that section a requirement that the Board 
ensure that no prejudice to a claimant will result from the Board's sua 
sponte consideration of a jurisdictional question. Specifically, this 
document proposes to amend that section to provide for procedural 
safeguards, including notice and the opportunity to submit additional 
evidence and argument on the relevant jurisdictional questions and to 
address such questions at a hearing, before the Board dismisses an 
appeal based on jurisdictional defects. (Other regulations provide 
procedures for addressing questions related to the Board's jurisdiction 
when such questions are raised before or by the AOJ. See 38 CFR 19.27, 
19.28, 19.33, 19.34). This document also proposes to amend that section 
to make it clear that certain restrictions in 38 CFR 19.9 and 20.1304 
do not apply when the Board considers jurisdictional questions in the 
first instance. In addition, this document proposes to amend 38 CFR 
19.35 to make it clear that certification of an appeal to the Board 
follows the filing of a timely Substantive Appeal. Finally, 38 CFR 
20.203 would be removed, inasmuch as its subject matter would be 
included in revised Sec. 20.101.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3520).

Executive Order 12866

    This final rule has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    The Secretary hereby certifies that this proposed rule would 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, inasmuch as this rule applies to individual claimants 
for veterans' benefits and does not affect such entities. Therefore, 
pursuant to 5 U.S.C. 605(b), this proposed rule is exempt from the 
initial and final regulatory flexibility analyses requirement of 
sections 603 and 604.
    There is no Catalog of Federal Domestic Assistance number for this 
proposed rule.

List of Subjects

38 CFR Part 19

    Administrative practice and procedure; Claims; Veterans; Authority 
delegations (government agencies).

38 CFR Part 20

    Administrative practice and procedure; Claims; Lawyers; Legal 
services; Veterans; Authority delegations (government agencies).

    Approved: February 14, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.
    For the reasons set out in the preamble, VA proposes amending 38 
CFR parts 19 and 20 as follows:

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), unless otherwise noted.

    2. Section 19.35 is amended by revising the first sentence to read 
as follows:


Sec. 19.35  Certification of appeals.

    Following receipt of a timely Substantive Appeal, the agency of 
original jurisdiction will certify the case to the Board of Veterans' 
Appeals. * * *
* * * * *

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

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

    Authority: 38 U.S.C. 501(a) and as noted in specific sections.

    4. Section 20.101 is amended by:
    A. Revising paragraph (c).
    B. Adding paragraphs (d) and (e).
    C. Revising the authority at the end of the section.
    The revision and additions read as follows:


Sec. 20.101  Rule 101. Jurisdiction of the board.

* * * * *
    (c) Appeals as to jurisdiction. All claimants have the right to 
appeal a determination made by the agency of original jurisdiction that 
the Board does not have jurisdictional authority to review a particular 
case. Jurisdictional questions which a claimant may appeal,

[[Page 17842]]

include, but are not limited to, questions relating to the timely 
filing and adequacy of the Notice of Disagreement and the Substantive 
Appeal.
    (d) Authority to determine jurisdiction. The Board may address 
questions pertaining to its jurisdictional authority to review a 
particular case, including, but not limited to, determining whether 
Notices of Disagreement and Substantive Appeals are adequate and 
timely, at any stage in a proceeding before it, regardless of whether 
the agency of original jurisdiction addressed such question(s). When 
the Board, on its own initiative, raises a question as to a potential 
jurisdictional defect, all parties to the proceeding and their 
representative(s), if any, will be given notice of the potential 
jurisdictional defect(s) and granted a period of 60 days following the 
date on which such notice is mailed to present written argument and 
additional evidence relevant to jurisdiction and to request a hearing 
to present oral argument on the jurisdictional question(s). The date of 
mailing of the notice will be presumed to be the same as the date 
stamped on the letter of notification. The Board may dismiss any case 
over which it determines it does not have jurisdiction.
    (e) Application of 38 CFR 19.9 and 20.1304. The provisions of 
Sec. 19.9 of this chapter requiring remand in certain instances shall 
not apply to proceedings to determine the Board's own jurisdiction. 
However, the Board may remand a case to an agency of original 
jurisdiction in order to obtain assistance in securing evidence of 
jurisdictional facts. The time restrictions on requesting a hearing and 
submitting additional evidence in Sec. 20.1304 of this part do not 
apply to a hearing requested, or evidence submitted, under paragraph 
(d) of this section.

(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)


Sec. 20.203  [Removed and Reserved]

    5. Section 20.203 is removed and reserved.
[FR Doc. 01-8302 Filed 4-3-01; 8:45 am]
BILLING CODE 8320-01-P