[Federal Register Volume 66, Number 192 (Wednesday, October 3, 2001)]
[Rules and Regulations]
[Pages 50318-50319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24766]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK54


Board of Veterans' Appeals: Rules of Practice--Time for Filing 
Substantive Appeal

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 (Board) relating to the time limit for filing a 
``substantive appeal.'' The amendment implements an opinion by the 
General Counsel of the Department of Veterans Affairs (VA) that, in 
some cases, when a claimant files additional evidence, the deadline for 
filing a substantive appeal may be extended.

DATES: Effective date: This amendment is effective February 11, 1997.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Acting Vice 
Chairman, 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 within 
VA that decides appeals from denials of claims for veterans' benefits.
    An appeal to the Board is initiated by filing a ``notice of 
disagreement'' with the ``agency of original jurisdiction'' (AOJ), 
usually one of VA's 58 regional offices. 38 U.S.C. 7105(a), (b); 38 CFR 
20.200 and 20.201. In response, the AOJ provides the claimant with a 
``statement of the case,'' that sets forth the reasons for the 
decision. 38 U.S.C. 7105(d)(1); 38 CFR 19.26 and 19.29. The claimant 
must file a substantive appeal within 60 days from the date of the 
mailing of the statement of the case, or within the remainder of the 
one-year period from the date VA mailed the original decision to the 
claimant, whichever is later. 38 U.S.C. 7105(d)(3); 38 CFR 20.302(b).
    If, however, a claimant submits additional pertinent evidence after 
the AOJ issues the statement of the case, the AOJ must issue a 
``supplemental statement of the case'' (SSOC). 38 CFR 19.31 and 
19.37(a). VA's regulations give the claimant 60 days to respond to the 
SSOC. 38 CFR 20.302(c). However, the previous version of 38 CFR 20.304 
provided that filing additional evidence after receipt of notice of an 
adverse determination did not extend the time limit for completing an 
appeal from that determination. Accordingly, if a claimant submitted 
(1) pertinent additional evidence within one year of the AOJ's 
determination and (2) a substantive appeal within 60 days of the 
issuance of the SSOC, but more than one year after the date of the 
AOJ's adverse determination, then the appeal would have been untimely 
under the prior version of 38 CFR 20.304.
    In a precedent opinion, however, the General Counsel held that VA 
must provide the claimant with a 60-day period of time in which to file 
a substantive appeal following issuance of an SSOC even if the one-year 
appeal period will expire before the 60-day period ends. VAOPGCPREC 9-
97; 62 FR 15565, 15567 (Apr. 1, 1997). The Board is bound in its 
decisions by the precedent opinions of the General Counsel. 38 U.S.C. 
7104(c).
    Accordingly, we are amending 38 CFR 20.302 and 20.304 to conform to 
that General Counsel opinion. As amended, these rules clarify that, 
where a claimant submits additional pertinent evidence within one year 
of the challenged AOJ decision, and that evidence requires the 
preparation of an SSOC, the time to file a substantive appeal shall end 
not sooner than 60 days after the AOJ mails that SSOC.
    Because this is a rule of agency practice, this rule would be 
published as a final rule. 5 U.S.C. 553(b)(3)(A). In addition, because 
this amendment constitutes a liberalizing change relieving a 
restriction and is an interpretative rule, this amendment is not 
required to be published 30 days prior to its effective date. 5 U.S.C. 
553(d). In this case, since the Board is bound by the precedent 
opinions of the General Counsel, 38 U.S.C. 7104(c), the amendment would 
be retroactively effective to February 11, 1997, the effective date of 
the precedent opinion upon which it is based.

Paperwork Reduction Act

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

Unfunded Mandates

    The Unfunded Mandates Reform Act requires (in section 202) that 
agencies prepare an assessment of anticipated costs and benefits before 
developing any rule that may result in an expenditure by State, local, 
or tribal governments, in the aggregate, or by the private sector of 
$100 million or more in any given year. This rule would have no 
consequential effect on State, local, or tribal governments.

Regulatory Flexibility Act

    The Secretary hereby certifies that this rule does 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 would affect only the processing of claims by VA and 
would 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, Veterans.

    Approved: September 21, 2001.
Anthony J. Principi,
Secretary of Veterans Affairs.

    For the reasons set out in the preamble, 38 CFR part 20 is amended 
as follows:

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) and as noted in specific sections.


    2. In Sec. 20.302, paragraph (b) is revised to read as follows:


Sec. 20.302  Rule 302. Time limit for filing Notice of Disagreement, 
Substantive Appeal, and response to Supplemental Statement of the Case.

* * * * *
    (b) Substantive Appeal. (1) General. Except in the case of 
simultaneously contested claims, a Substantive Appeal must be filed 
within 60 days from the date that the agency of original jurisdiction 
mails the Statement of the Case to the appellant, or within the

[[Page 50319]]

remainder of the 1-year period from the date of mailing of the 
notification of the determination being appealed, whichever period ends 
later. The date of mailing of the Statement of the Case will be 
presumed to be the same as the date of the Statement of the Case and 
the date of mailing the letter of notification of the determination 
will be presumed to be the same as the date of that letter for purposes 
of determining whether an appeal has been timely filed.
    (2) Special rule in certain cases where additional evidence is 
submitted. Except in the case of simultaneously contested claims, if 
(i) a claimant submits additional evidence within 1 year of the date of 
mailing of the notification of the determination being appealed, and 
(ii) that evidence requires, in accordance with Sec. 19.31 of this 
title, that the claimant be furnished a Supplemental Statement of the 
Case, then the time to submit a Substantive Appeal shall end not sooner 
than 60 days after such Supplemental Statement of the Case is mailed to 
the appellant, even if the 60-day period extends beyond the expiration 
of the 1-year appeal period.

(Authority: 38 U.S.C. 7105 (b)(1), (d)(3).)
* * * * *

    3. In Sec. 20.304 is revised to read as follows:


Sec. 20.304  Rule 304. Filing additional evidence does not extend time 
limit for appeal.

    Except as provided in Rule 302(b) (Sec. 20.302(b) of this part), 
the filing of additional evidence after receipt of notice of an adverse 
determination does not extend the time limit for initiating or 
completing an appeal from that determination.

(Authority: 38 U.S.C. 7105.)
[FR Doc. 01-24766 Filed 10-2-01; 8:45 am]
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