[Federal Register Volume 69, Number 171 (Friday, September 3, 2004)]
[Rules and Regulations]
[Pages 53807-53808]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19693]


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DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 19 and 20

RIN 2900-AL77


Board of Veterans' Appeals: Obtaining Evidence and Curing 
Procedural Defects

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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SUMMARY: This document adopts as final the proposed rule amending the 
Appeals Regulations and Rules of Practice of the Board of Veterans' 
Appeals (Board). The final rule removes the Board's authority to 
develop evidence for initial consideration unless the appellant or 
appellant's representative waives the right to initial review by the 
agency of original jurisdiction of new evidence received by the Board. 
The final rule also redefines ``agency of original jurisdiction'' to 
refer to the Veterans Benefits Administration, Veterans Health 
Administration, or National Cemetery Administration, depending upon the 
origin of the appealed decision. This rulemaking is required to 
simplify the appellate process and to conform to a recent decision from 
the United States Court of Appeals for the Federal Circuit.

DATES: Effective date: October 4, 2004.
    Applicability date: The amendments in this final rule will apply to 
appeals pending before the Board on the effective date of this final 
rule and to all appeals for which a notice of disagreement is filed on 
or after the effective date of this final rule.

FOR FURTHER INFORMATION CONTACT: Steven L. Keller, Senior Deputy Vice 
Chairman, Board of Veterans' Appeals (01C), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202-565-5978).

SUPPLEMENTARY INFORMATION: The Board of Veterans' Appeals is the 
component of the Department of Veterans Affairs (VA) in Washington, DC, 
that decides appeals from denials of claims for veterans' benefits.
    On December 11, 2003, VA published in the Federal Register (68 FR 
69062), a notice of proposed rulemaking to remove the Board's authority 
to develop evidence for initial consideration. The proposed rule would 
require the Board, with certain exceptions, to remand an appeal to the 
agency of original jurisdiction (AOJ) when there is a need to obtain 
evidence, clarify the evidence, correct a procedural defect, or take 
any other action deemed essential for a proper appellate decision. The 
proposed rule would also provide that the Board may consider additional 
evidence in the first instance, without remand to the AOJ, when the 
appellant or appellant's representative waives this procedural right. 
In addition, the proposed rule would redefine ``agency of original 
jurisdiction'' to refer to the broad administrative body within VA that 
governs the office from which the decision on appeal originated. As set 
forth in the proposed rule, we are adopting the proposed rule as a 
final rule without change.
    We received one comment from a veterans' service organization 
opposing the amendments in the proposed rule. We do not agree with the 
commenter's objections.
    The veterans' service organization suggests that the proposed rule 
amending 38 CFR 20.903 and 20.1304(b)(2), insofar as it relates to the 
Board's consideration of medical opinions obtained by the Board from 
the Veterans Health Administration (VHA) pursuant to 38 CFR 20.901, 
exceeds the Board's authority under 38 U.S.C. 7109 and, therefore, is 
unlawful. This comment actually concerns an interim final rule amending 
38 CFR 20.901 (specifically, section 20.901(a) authorizing Board 
requests for medical opinions from the VHA), which was published on 
July 23, 2001, in the Federal Register (66 FR 38158). This particular 
comment is more appropriately addressed at length in the final 
rulemaking notice amending 38 CFR 20.901, which has been published 
recently in the Federal Register.
    The commenter's statements specific to the amendments finalized in 
this document concern 38 CFR 20.903 and 20.1304(b)(2). In 38 CFR 
20.903(a), the second sentence is revised to require that a medical 
opinion obtained by the Board be provided to the appellant and his or 
her representative, if any, rather than to just the representative. 
With regard to 38 CFR 20.1304(b)(2), the changes are not substantive 
and involve removing references to ``paragraph (b) or (c)'' and 
replacing those references with ``paragraph (a) or (b).'' Since these 
changes are not relevant to the commenter's concerns, we decline to 
make changes based on this comment. Accordingly, the proposed rule is 
adopted as a final rule without change.

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 the aggregate, or by the private sector of 
$100 million or more in any given year. This proposed rule would have 
no such effect on State, local, or tribal governments, or the private 
sector.

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. Only VA beneficiaries could be directly affected. 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. 3501-3521).

[[Page 53808]]

Executive Order 12866

    This regulatory amendment has been reviewed by the Office of 
Management and Budget under the provisions of Executive Order 12866.

List of Subjects in 38 CFR Parts 19 and 20

    Administrative practice and procedure, Claims, Veterans.

    Approved: May 3, 2004.
Anthony J. Principi,
Secretary of Veterans Affairs.

0
For the reasons set out in the preamble, 38 CFR parts 19 and 20 are 
amended as set forth below:

PART 19--BOARD OF VETERANS' APPEALS: APPEALS REGULATIONS

0
1. The authority citation for part 19 continues to read as follows:

    Authority: 38 U.S.C. 501(a), unless otherwise noted.

Subpart A--Operation of the Board of Veterans' Appeals

0
2. Section 19.9 is amended by revising the section heading and 
paragraphs (a) and (b) to read as follows:


Sec.  19.9  Remand for further development.

    (a) General. If further evidence, clarification of the evidence, 
correction of a procedural defect, or any other action is essential for 
a proper appellate decision, a Veterans Law Judge or panel of Veterans 
Law Judges shall remand the case to the agency of original 
jurisdiction, specifying the action to be undertaken.
    (b) Exceptions. A remand to the agency of original jurisdiction is 
not necessary for the purposes of:
    (1) Clarifying a procedural matter before the Board, including the 
appellant's choice of representative before the Board, the issues on 
appeal, or requests for a hearing before the Board;
    (2) Consideration of an appeal, in accordance with Sec.  20.903(b) 
of this chapter, with respect to law not already considered by the 
agency of original jurisdiction. This includes, but is not limited to, 
statutes, regulations, and court decisions; or
    (3) Reviewing additional evidence received by the Board, if, 
pursuant to Sec.  20.1304(c) of this chapter, the appellant or the 
appellant's representative waives the right to initial consideration by 
the agency of original jurisdiction, or if the Board determines that 
the benefit or benefits to which the evidence relates may be fully 
allowed on appeal.
* * * * *

Subpart B--Appeals Processing by Agency of Original Jurisdiction


Sec.  19.38  [Amended]

0
3. Section 19.38 is amended by removing ``the Board and'' from the 
third sentence.

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

0
4. The authority citation for part 20 continues to read as follows:

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


0
5. Section 20.3 is amended by revising paragraph (a) to read as 
follows:


Sec.  20.3  Rule 3. Definitions.

* * * * *
    (a) Agency of original jurisdiction means the Department of 
Veterans Affairs activity or administration, that is, the Veterans 
Benefits Administration, Veterans Health Administration, or National 
Cemetery Administration, that made the initial determination on a 
claim.
* * * * *

0
6. Section 20.903 is amended by:
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a. Revising the second sentence in paragraph (a);
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b. Removing paragraph (b);
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c. Redesignating paragraph (c) as paragraph (b); and
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d. Revising the first sentence in newly redesignated paragraph (b).
    The revisions read as follows:


Sec.  20.903  Rule 903. Notification of evidence secured and law to be 
considered by the Board and opportunity for response.

    (a) * * * When the Board receives the opinion, it will furnish a 
copy of the opinion to the appellant, subject to the limitations 
provided in 38 U.S.C. 5701(b)(1), and to the appellant's 
representative, if any. * * *
    (b) * * * If, pursuant to Sec.  19.9(b)(2) of this chapter, the 
Board intends to consider law not already considered by the agency of 
original jurisdiction and such consideration could result in denial of 
the appeal, the Board will notify the appellant and his or her 
representative, if any, of its intent to do so and that such 
consideration in the first instance by the Board could result in denial 
of the appeal. * * *

0
7. Section 20.1304 is amended by:
0
a. In paragraphs (a) and (b)(1)(ii), removing ``paragraph (c)'' from 
each, and adding, in each place, ``paragraph (d)''.
0
b. In paragraph (b)(2), removing ``paragraph (b) or (c)'' each place it 
appears, and adding, in each place, ``paragraph (a) or (b)''.
0
c. Redesignating paragraph (c) as paragraph (d).
0
d. Adding new paragraph (c).
0
e. In newly designated paragraph (d), adding a new sentence immediately 
after ``additional evidence in rebuttal.''
    The additions read as follows:


Sec.  20.1304  Rule 1304. Request for change in representation, request 
for personal hearing, or submission of additional evidence following 
certification of an appeal to the Board of Veterans' Appeals.

* * * * *
    (c) Consideration of additional evidence by the Board or by the 
agency of original jurisdiction. Any pertinent evidence submitted by 
the appellant or representative which is accepted by the Board under 
the provisions of this section, or is submitted by the appellant or 
representative in response to a Sec.  20.903 of this part, 
notification, as well as any such evidence referred to the Board by the 
agency of original jurisdiction under Sec.  19.37(b) of this chapter, 
must be referred to the agency of original jurisdiction for review, 
unless this procedural right is waived by the appellant or 
representative, or unless the Board determines that the benefit or 
benefits to which the evidence relates may be fully allowed on appeal 
without such referral. Such a waiver must be in writing or, if a 
hearing on appeal is conducted, the waiver must be formally and clearly 
entered on the record orally at the time of the hearing. Evidence is 
not pertinent if it does not relate to or have a bearing on the 
appellate issue or issues.
    (d) * * * For matters over which the Board does not have original 
jurisdiction, a waiver of initial agency of original jurisdiction 
consideration of pertinent additional evidence received by the Board 
must be obtained from each claimant in accordance with paragraph (c) of 
this section. * * *

[FR Doc. 04-19693 Filed 9-2-04; 8:45 am]
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