[Federal Register Volume 68, Number 53 (Wednesday, March 19, 2003)]
[Rules and Regulations]
[Pages 13235-13236]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-6611]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Part 20

RIN 2900-AK71


Board of Veterans' Appeals: Rules of Practice--Appeal Withdrawal

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document amends a Board of Veterans' Appeals Rule of 
Practice to remove an unnecessary restriction on who may withdraw an 
appeal to the Board of Veterans' Appeals and to clarify appeal 
withdrawal procedures.

DATES: Effective Date: April 18, 2003.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals (012), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420 (202-565-5978).

SUPPLEMENTARY INFORMATION: Initial decisions on claims for Federal 
veterans' benefits are made at Department of Veterans Affairs (VA) 
field offices throughout the nation. Claimants may appeal those 
decisions to the Board of Veterans' Appeals (Board).
    On February 1, 2002, VA published in the Federal Register a 
proposed rule to amend the Board of Veterans' Appeals Rule of Practice 
204(c) (38 CFR 20.204(c)) by removing the current restriction on a 
representative's authority to withdraw an appeal without having written 
consent from the appellant. 67 FR 4939. VA also proposed to amend Rule 
of Practice 204 to fill in currently missing details about appeal 
withdrawal procedures and to remove as superfluous the current 
provision in that rule stating that the agency of original jurisdiction 
may not withdraw a Notice of Disagreement or a Substantive Appeal 
because that restriction would be covered under revised 38 CFR 
20.204(a). The amendment is intended to remove an unnecessary 
restriction on who may withdraw an appeal to the Board of Veterans' 
Appeals and to clarify appeal withdrawal procedures.
    We received comments from two County veterans service officers. 
Both commenters opposed the proposed rule with respect to removing the 
restriction on a representative's authority to withdraw an appeal. The 
commenters maintained that the duty of a representative with the power 
of attorney is to assist, inform, and advise the appellant on the best 
course of action to take in his or her claim, but that the ultimate 
decision to pursue the claim should be left only to the appellant. Both 
commenters argued that the proposed rule would circumvent this process 
and potentially deprive the appellant of the opportunity to make a 
critical decision in his or her appeal.
    We agree that the appellant is the one making the decisions. This 
amendment will not change that basic tenet of representation. All the 
rule will do is to make it possible for a representative to execute the 
appellant's desire to withdraw an appeal. The amendment will not result 
in any fundamental change in the nature of representation. Moreover, as 
we observed in the proposed-rule notice, an appellant could 
contractually limit the authority of his or her representative if such 
a limitation was deemed warranted by the parties. Accordingly, we make 
no change based on these comments. Based on the rationale set forth 
above and in the proposed rule, we adopt the amendments as proposed, 
with a nonsubstantive change to reflect the current title of the 
official with whom the withdrawal may be filed.

[[Page 13236]]

Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 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 the aggregate, or by the 
private sector of $100 million or more in any given year. This final 
rule would have no measurable monetary effect on State, local, or 
tribal governments.

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 (RFA), 5 U.S.C. 
601-612. Any economic impact on service organizations or law firms 
would be minimal. Therefore, pursuant to 5 U.S.C. 605(b), this final 
rule is exempt from the initial and final regulatory flexibility 
analysis requirements of sections 603 and 604.

Paperwork Reduction Act

    The Secretary hereby certifies that this final rule contains no 
provisions constituting a collection of information under the Paperwork 
Reduction Act (44 U.S.C. 3501-3520).

List of Subjects in 38 CFR Part 20

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

    Approved: March 12, 2003.
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. Section 20.204 is revised to read as follows:


Sec.  20.204  Rule 204. Withdrawal of Appeal.

    (a) When and by whom filed. Only an appellant, or an appellant's 
authorized representative, may withdraw an appeal. An appeal may be 
withdrawn as to any or all issues involved in the appeal.
    (b) Filing. (1) Form and content. Except for appeals withdrawn on 
the record at a hearing, appeal withdrawals must be in writing. They 
must include the name of the veteran, the name of the claimant or 
appellant if other than the veteran (e.g., a veteran's survivor, a 
guardian, or a fiduciary appointed to receive VA benefits on an 
individual's behalf), the applicable Department of Veterans Affairs 
file number, and a statement that the appeal is withdrawn. If the 
appeal involves multiple issues, the withdrawal must specify that the 
appeal is withdrawn in its entirety, or list the issue(s) withdrawn 
from the appeal.
    (2) Where to file. Appeal withdrawals should be filed with the 
agency of original jurisdiction until the appellant or representative 
filing the withdrawal receives notice that the appeal has been 
transferred to the Board. Thereafter, file the withdrawal at the 
following address: Director, Management and Administration (014), Board 
of Veterans' Appeals, 810 Vermont Avenue, NW., Washington, DC 20420.
    (3) When effective. Until the appeal is transferred to the Board, 
an appeal withdrawal is effective when received by the agency of 
original jurisdiction. Thereafter, it is not effective until received 
by the Board. A withdrawal received by the Board after the Board issues 
a final decision under Rule 1100(a) (Sec.  20.1100(a) of this part) 
will not be effective.
    (c) Effect of filing. Withdrawal of an appeal will be deemed a 
withdrawal of the Notice of Disagreement and, if filed, the Substantive 
Appeal, as to all issues to which the withdrawal applies. Withdrawal 
does not preclude filing a new Notice of Disagreement and, after a 
Statement of the Case is issued, a new Substantive Appeal, as to any 
issue withdrawn, provided such filings would be timely under these 
rules if the appeal withdrawn had never been filed.

(Authority: 38 U.S.C. 7105(b) and (d))

[FR Doc. 03-6611 Filed 3-18-03; 8:45 am]
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