[Federal Register Volume 68, Number 27 (Monday, February 10, 2003)]
[Rules and Regulations]
[Pages 6621-6625]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-3040]


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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 19

RIN 2900-AK62


Appeals Regulations: Title for Members of the Board of Veterans' 
Appeals

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: This document amends the Department of Veterans Affairs' (VA) 
Appeals Regulations to provide that a Member of the Board of Veterans'

[[Page 6622]]

Appeals may also be known as a Veterans Law Judge.

DATES: Effective Date: February 10, 2003.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, 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 (Board) is an 
administrative body that decides appeals from denials of claims for 
veterans' benefits, after an opportunity for a hearing. There are 
currently 55 Board ``members,'' who decide 35,000 to 40,000 such 
appeals per year.
    On March 6, 2001, we published a notice of proposed rulemaking 
(NPRM) that would provide that a Member of the Board may also be known 
as a Veterans Law Judge. 66 FR 13463. The comment period ended May 7, 
2001. We received 38 comments, 33 from individuals and 5 from 
organizations. Of the commenters, 27 supported the proposal, while 11 
opposed it.
    We have carefully considered all the comments. We also considered a 
letter from six veterans service organizations sent prior to the 
beginning of the comment period, but which we referenced in our NPRM. 
66 FR at 13463. We have grouped the objections into seven general 
categories and discuss them below.
    For the reasons described, we have decided to adopt the proposed 
regulation as a final regulation.
    1. The title is detrimental or of no benefit to veterans.
    Several individuals and one organization expressed concern that the 
change would ``intimidate'' veterans. Some organizations opined that 
the change would provide no benefit to veterans. At the same time, 
several individuals said they did not find the title intimidating. In 
addition, several individuals said that they found the current title of 
``member'' confusing and thought that ``judge'' would be a 
clarification.
    We do not agree that the change will intimidate veterans or provide 
them no benefit.
    The chief reason we proposed this rule was to recognize Board 
members for what they are: Judges. It is a title that is widely used in 
the executive branch for thousands of people who hold hearings and 
decide appeals. For example--
    If a person disagrees with a Social Security decision, his appeal 
is heard by a Social Security Administration (SSA) employee called a 
judge.
    If he disagrees with that decision, the appeal is heard by another 
SSA employee called a judge.
    If a federal employee appeals a personnel decision, her appeal is 
heard by a Merit Systems Protection Board employee called a judge.
    If a person has a complaint about discrimination, her case is heard 
by an Equal Employment Opportunity Commission employee called a judge.
    We also know that most veterans who come before the Board do so 
once in their life. As we said in our NPRM, ``member'' doesn't really 
tell the veteran much about what the member does. 66 FR at 13463. The 
term ``judge'' is simply more accurate.
    The purpose of the Board is to give veterans an independent review 
of denied claims. Our experience is that veterans are most concerned 
that the person deciding their appeals is not part of the regional 
office, which initially decided their claims. We think that the term 
``judge'' does a better job of letting veterans know what the Board 
member is and--almost as importantly--what the Board member is not.
    VA actually used the term ``Veterans Law Judge'' for three or four 
months late in the year 2000 and early in 2001. See 65 FR 55461 (Sep. 
14, 2000) (final rule establishing title), rescinded, 66 FR 13437 (Mar. 
6, 2001). We received no complaints that our Board members had become 
more aloof or the hearings more formal, nor did we receive any 
complaints that any veterans were intimidated by the title.
    Accordingly, we make no changes based on these comments.
    2. Board Members are not Administrative Law Judges.
    Some commenters objected to the rule because Board Members are not 
Administrative Law Judges (ALJs).
    While this is certainly true, its apparent relevance to this 
rulemaking is that only ALJs are permitted to carry the title 
``judge.'' We noted in our NPRM that there are many types of non-ALJ 
adjudicators in the executive branch who carry the title ``judge.'' We 
also note that individuals appointed to the judiciary under Articles I 
and III of the Constitution--i.e., adjudicators in the various Federal 
courts--carry the title ``judge,'' and none of them are ALJs.
    The point is that the term ``judge'' describes what the individual 
does, not whether he or she is subject to particular procedures 
established by the Office of Personnel Management (OPM). In addition, 
we have not proposed to refer to Board members as ``administrative law 
judges,'' but rather as ``Veterans Law Judges.''
    Accordingly, we make no changes based on these comments.
    3. The selection process for Board Members is different from the 
selection process for ALJs.
    Some commenters objected to the rule because the Board member 
selection process is different from the ALJ selection process.
    The processes are different. Like the ALJ process, however, the 
Board member process selects experienced attorneys and is based on 
merit principles. The following table illustrates the similarities and 
differences in the selection processes:

------------------------------------------------------------------------
                               Administrative Law     Member, Board of
                                      Judge           Veterans' Appeals
------------------------------------------------------------------------
General qualifications......  Attorney with 7       In practice, 7-10
                               years experience in   years experience in
                               Administrative Law    the field of
                               or Litigation in a    veterans' law. (VA,
                               government setting.   non-regulatory
                               (OPM, non-            requirement)
                               regulatory
                               requirement).
Attorney status.............  Active member of the  Member in good
                               bar. (OPM, non-       standing of the bar
                               regulatory            of a State. 38
                               requirement).         U.S.C. 7101A(a)(2).
Experience requirement......  2 years experience    Generally, two or
                               equivalent to a GS-   more years at the
                               13 or 1 year          GS-14 or GS-15
                               experience as a GS-   level. (VA, non-
                               14 or GS-15. (OPM,    regulatory
                               non-regulatory        requirement)
                               requirement).
Skills......................  Knowledge of          Knowledge of
                               administrative        veterans' law and
                               procedures, rules     of specialized
                               of evidence, and      areas of medicine
                               trial practices;      and law; ability to
                               analytical ability;   conduct hearings;
                               oral communications   ability to manage
                               ability and           attorneys; ability
                               judicial              to participate in
                               temperament;          training
                               writing ability;      activities.
                               organizational        Additional
                               skills. (OPM, non-    qualification
                               regulatory            factors. (VA, non-
                               requirement).         regulatory
                                                     requirement)

[[Page 6623]]

 
Application process.........  Pass an OPM-          Application;
                               administered 4-part   interview;
                               exam.                 reference check;
                              Note: The ``4-part     review of
                               exam'' consists of    substantive work as
                               (1) the application   attorney (generally
                               form; (2) a written   as counsel at
                               test; (3) an          Board). (VA, non-
                               interview; and (4)    regulatory
                               a reference check.    requirement)
                               See 5 CFR
                               930.203(c) and (d)..
------------------------------------------------------------------------

    The similarity of the processes' results is illustrated by the fact 
that Board members have moved rather easily from the Board to the ALJ 
ranks. Indeed, a primary impetus for equalization of Board member pay 
with ALJ pay in 1994 (Pub. L. 103-446) was the loss of Board members to 
the ALJ ranks. See, e.g., 140 Cong. Rec. H11349, H11350 (daily ed., 
Oct. 7, 1994) (statement of Rep. Montgomery in connection with passage 
of H.R. 4386) (pay equity provision for Board members ``is intended to 
insure that Members of the Board not feel compelled to pursue ALJ 
positions, but rather to remain at the Board, where their expertise is 
badly needed''); 140 Cong. Rec. H7088, H7092 (daily ed. Aug. 8, 1994) 
(statement of Rep. Montgomery in connection with passage of H.R. 4088) 
(``current pay disparity between Board members and Administrative Law 
Judges is producing a migration of Board members to the Social Security 
Administration and other federal agencies''); 140 Cong. Rec. S9457, 
S9458 (daily ed., Jul. 21, 1994) (statement of Sen. Akaka on 
introduction of S. 2305) (``Since July 1993, nine Board members have 
been selected to be ALJ's. This figure represents 16 percent of the 55 
attorneys who have held Board member positions since last July.'').
    Accordingly, we make no changes based on these comments.
    4. Board Members do not have the same ``decisional independence'' 
as ALJs.
    Some commenters objected to the rule because Board members do not 
have the same ``decisional independence'' as ALJs. Indeed, one 
commenter went so far as to state that ``the BVA simply cannot provide 
appellants the assurance of impartiality that accompanies judicial 
status.''
    Not only are such comments, frankly, insulting to Board members, 
they are wrong as a matter of law.
    In the first place, we believe there is no evidence that Board 
members are anything but impartial. We are unaware of a single instance 
in the 70-year history of the Board in which the differences between 
ALJs and Board members, as articulated by the commenters, resulted in a 
charge--much less a proven allegation--that any Board member at any 
time was other than impartial. The commenters, while referring 
generally to the administrative control of the Board Chairman over the 
Board, 38 U.S.C. 7101(a), have not directed us to any such instance. We 
categorically deny both that VA management has attempted to influence 
the result of Board members' decisions and that Board members do not 
provide appellants the assurance of impartiality.
    We can, however, point to at least one situation in which a group 
of ALJs claimed that their agency--which has administrative control 
over them--was putting pressure on the ALJs to make fewer claimant-
friendly decisions. In the early 1980s, the Department of Health and 
Human Services (HHS) instituted what came to be known as the ``Bellmon 
Review Program,'' which allegedly put pressure on ALJs within SSA to 
make fewer reversals of denials of Social Security benefits. Although 
HHS eventually modified its stance, the ALJs claimed that their 
independence was threatened, notwithstanding their immunity from 
performance reviews and the fact that they were selected for ALJ 
positions by OPM, not HHS. See generally Ass'n of Admin. Law Judges, 
Inc. v. Heckler, 594 F. Supp. 1132 (D.D.C. 1984).
    Second, the term ``decisional independence'' is not a clearly 
defined concept, and the commenters did not attempt to define the 
phrase. In Ass'n of Admin. L. Judges v. Heckler, supra, an action 
challenging the ``Bellmon Review,'' the court found that ALJs had a 
``qualified'' right to decisional independence. In that case--in which 
ALJs alleged that their decisional independence was threatened--the 
court noted that, while ALJs at SSA are exempt from the performance 
appraisals to which other civil service employees are subject (Board 
members, who are subject to the statutory performance review provisions 
of 38 U.S.C. 7101A, are also exempt from performance appraisals) and 
that they are entitled to rates of pay not set by the agency in which 
they serve (as are Board members), they are nevertheless subject to 
performance-related adverse personnel actions (as are Board members) 
and are entirely subject to their agency's right, under the 
administrative appeals process, to impose the agency's views on law and 
policy (as Board members are not). The court concluded that ``the ALJ's 
right to decisional independence is qualified.'' 594 F. Supp. at 1141. 
See also Goodman v. Svahn, 614 F. Supp. 726, 728-29 (D.D.C. 1985) 
(imposition of case production quotas on SSA ALJ did not violate ALJ's 
rights under the Administrative Procedure Act, the Civil Rights Act of 
1861, or the Fifth Amendment); cf. Sannier v. MSPB, 931 F.2d 856, 858-
59 (Fed. Cir. 1991) (where SSA ALJ did not allege that increased 
pressure to process more cases affected his decisionmaking, ALJ's claim 
of constructive removal was properly dismissed by MSPB for lack of 
subject matter jurisdiction); Nash v. Bowen, 869 F.2d 675, 680 (2d 
Cir.) (setting of reasonable production goals for SSA ALJs is not an 
infringement of decisional independence), cert. denied, 493 U.S. 813 
(1989).
    As noted, the court in Ass'n of Admin. Law Judges, Inc. v. Heckler, 
supra, found that the power of the agency to alter ALJ decisions 
contributed to the ``qualified'' nature of ALJ decisional independence. 
Of all adjudicators within the Executive Branch, there may be none 
whose decisions are more independent than those of members of the Board 
of Veterans' Appeals. Unlike ALJs, Board members make decisions that 
generally can be altered only by a Federal court. (The exceptions are 
(1) reconsideration under 38 U.S.C. 7104, which can be ordered by the 
Board chairman, but results only in the vacation of the decision and 
reassignment to a panel of members, and (2) reversal on the grounds of 
clear and unmistakable error under 38 U.S.C. 7111, which can be ordered 
only by a Board member.) An ALJ decision, on the other hand, generally 
is not directly appealable to any court. Instead, it is, in effect, a 
preliminary decision subject to summary reversal by the agency head. 
Compare Nash v. Bowen, 869 F.2d at 680 (ALJs' authority to decide 
Social Security appeals is delegated by the Secretary and Secretary is 
ultimately authorized to make the final decision), with 38 U.S.C. 
7104(a) (decisions on appeals to Secretary are made by the Board of 
Veterans' Appeals).
    Neither ALJs nor Board members are subject to the normal 
performance reviews applicable to most civil service employees. 
However, Board members are subject to periodic recertification

[[Page 6624]]

following peer review, 38 U.S.C. 7101A, while no comparable review 
process applies to ALJs. Nevertheless, ALJs are subject to dismissal 
for inadequate performance. See SSA v. Goodman, 19 M.S.P.R. 321 (1984). 
The concept of rating judicial performance, particularly an approach 
involving peer review, is hardly a novel concept. See, e.g., J. 
Lubbers, The Federal Administrative Judiciary: Establishing an 
Appropriate System of Performance Evaluation for ALJs, 7 Admin. L.J. 
Am. U. 589, 606-11 (1994) (citing state and local judicial systems 
employing such a process). We do not find this distinction between 
Board members and ALJs to be meaningful with respect to whether Board 
members should be called ``Veterans Law Judges.''
    Finally, we can perceive no reason--and none was advanced by the 
commenters--to conclude that the selection and tenure characteristics 
associated with ALJs determine whether an individual may be called a 
judge. As we pointed out in our NPRM, there are within the Federal 
service ``administrative judges'' who are subject to the same selection 
and review criteria as most civil servants. In addition, individuals 
appointed to the judiciary under Article I of the Constitution--Tax 
Court judges, judges of the United States Court of Appeals for Veterans 
Claims--are selected by a political process, have fixed terms, and yet 
are called ``judges.'' Finally, Federal District Court Judges and 
judges of the United States Courts of Appeals are called judges even 
though they are selected through a political process and have much more 
job security than ALJs. In sum, we are not persuaded by this argument.
    For all these reasons, we find no substance to the commenters' 
claims that there is a substantive difference between the decisional 
independence of ALJs and that of Board members, nor do we believe that 
it is the characteristics of ALJ selection and tenure that determine 
whether an individual may be called ``judge.'' Accordingly, we make no 
change in the regulation based on those comments.
    5. The statute calls them ``members,'' not ``judges.''
    Some commenters suggest that, because the statute refers to 
``members'' of the Board, VA is barred from using the title ``judge.'' 
The commenters provided no authority for this proposition, and we could 
find none.
    We do, however, note that it is not uncommon for members of a 
statutorily-created board to be defined in regulations as ``judges.'' 
See 41 U.S.C. 607 (Boards of Contract Appeals) and, e.g., 38 CFR 1.781 
(BCA members at VA ``are designated Administrative Judges'') and 7 CFR 
24.2 (BCA members at Department of Agriculture are ``designated 
Administrative Judges''); 31 U.S.C. 751 (Personnel Appeals Board at the 
General Accounting Office) and 4 CFR 28.3 (when designated to preside 
over a hearing, Board members are titled ``administrative judges''); 33 
U.S.C. 921 (Benefits Review Board at the Department of Labor) and 20 
CFR 801.2(3) & (12) (Board members are ``officially entitled'' 
administrative appeals judges); 42 U.S.C. 2241 (Atomic Safety and 
Licensing Boards) and 10 CFR 1.15 (members of these boards are called 
``administrative judges''); cf. 43 CFR 4.2(a) (members of various 
appellate boards created by Department of the Interior are ``designated 
Administrative Judges'').
    We make no change based on these comments.
    6. Congress failed to enact a measure providing for a similar 
title.
    One commenter suggested that Congress had ``rejected'' changing the 
title of Board member, apparently concluding that such inaction 
prevented VA from doing so.
    In the first place, the Congress did not ``reject'' the change. 
Indeed, the only Congressional action of record was adoption by the 
House of Representatives of a similar provision in the 105th Congress.
    In 1998, the House of Representatives passed a bill which, among 
many other things, would have provided that Board members (other than 
the Chairman) could also be known as ``veterans administrative law 
judges.'' H.R. 4110, 105th Cong. Sec.  407(a); see 144 Cong. Rec. H6885 
(daily ed. Aug. 3, 1998) (debate on passage of H.R. 4110 as reported by 
the Committee on Veterans' Affairs). That provision was never subject 
to a vote in the Senate. However, along with other provisions in H.R. 
4110, Sec.  407(a) was not adopted by the Senate in the compromise 
leading to the final version of the bill. See 144 Cong. Rec. H10374 
(daily ed. Oct. 10, 1998) (debate on final passage of H.R. 4110).
    Second, it is well-settled that the intent of the legislature is 
indicated by its action, not by its failure to act. See, e.g., FDA v. 
Brown & Williamson Tobacco Corp., 529 U.S. 120, 155 (2000) (in case 
challenging authority of FDA to regulate tobacco, Court would ``not 
rely on Congress' failure to act--its consideration and rejection of 
bills that would have given the FDA this authority--'' in reaching 
conclusion that FDA lacked authority); United States v. Southwestern 
Cable Co., 392 U.S. 157, 170 (1968) (failed requests for legislative 
action do not prove agency did not already possess authority); see 
generally 73 Am. Jur.2d, Statutes Sec.  84 (2001). In this case, not 
only was there, at best, a ``failure to act'' by the Congress with 
respect to the title of Board members, but, to the extent it did act, 
part of the Congress--the House--passed the measure.
    We make no changes to the regulation based on this comment.
    7. The title ``judge'' would destroy the non-adversarial nature of 
the VA appellate process.
    Two commenters objected to the title ``judge'' because it would 
adversely affect the informal, non-adversarial nature of VA's appellate 
process. In addition to the fact that the commenters offer only their 
opinions in support of this proposition, it is relevant to note that 
the 973 administrative law ``judges'' at SSA--approximately 75% of all 
federal ALJs--administer justice in ``an informal, nonadversary 
manner.'' 20 CFR 404.900(b) (rules relating to SSA administrative 
review process).
    We make no changes based on these comments.

Administrative Procedure Act

    This final rule concerns agency organization, procedure or practice 
and is not a substantive rule. Accordingly, it is exempt from the 
delayed effective date provision of 5 U.S.C. 553.

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 document has been reviewed by the Office of Management and 
Budget under Executive Order 12866.

Regulatory Flexibility Act

    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, 5 U.S.C. 601-
612. This final rule only affects members of the Board of Veterans' 
Appeals and not small entities. 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.

Unfunded Mandates

    The Unfunded Mandates Reform Act requires, at 2 U.S.C. 1532, 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

[[Page 6625]]

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.

List of Subjects in 38 CFR Part 19

    Administrative practice and procedure, Claims, Veterans.

    Approved: November 18, 2002.
Anthony J. Principi,
Secretary of Veterans Affairs.


    For the reasons set out in the preamble, 38 CFR part 19 is 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), unless otherwise noted.

    2. The section heading and section 19.2 are revised to read as 
follows:


Sec.  19.2  Composition of the Board; Titles.

    (a) 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.
    (b) A member of the Board (other than the Chairman) may also be 
known as a Veterans Law Judge. An individual designated as an acting 
member pursuant to 38 U.S.C. 7101(c)(1) may also be known as an acting 
Veterans Law Judge.

(Authority: 38 U.S.C. 501(a), 512, 7101(a))
[FR Doc. 03-3040 Filed 2-7-03; 8:45 am]
BILLING CODE 8320-01-P