[Federal Register Volume 76, Number 163 (Tuesday, August 23, 2011)]
[Rules and Regulations]
[Pages 52572-52575]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21513]


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

DEPARTMENT OF VETERANS AFFAIRS

38 CFR Parts 3 and 20

RIN 2900-AO06


Rules Governing Hearings Before the Agency of Original 
Jurisdiction and the Board of Veterans' Appeals; Clarification

AGENCY: Department of Veterans Affairs.

ACTION: Final rule.

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

SUMMARY: The Department of Veterans Affairs (VA) is amending its 
hearing regulations to clarify that the provisions regarding hearings 
before the Agency of Original Jurisdiction (AOJ) do not apply to 
hearings before the Board of Veterans' Appeals (Board).

DATES: Effective Date: This rule is effective August 23, 2011.

[[Page 52573]]


FOR FURTHER INFORMATION CONTACT: Laura H. Eskenazi, Principal Deputy 
Vice Chairman, Board of Veterans' Appeals (012), Department of Veterans 
Affairs, 810 Vermont Avenue, NW., Washington, DC 20420, (202) 461-8078. 
(This is not a toll-free number.)

SUPPLEMENTARY INFORMATION: This document amends 38 CFR parts 3 and 20 
to clarify existing hearing practices and procedures before the AOJ and 
the Board. Specifically, VA is amending Sec.  3.103(a) and (c) to 
clarify that the hearing procedures outlined in Sec.  3.103 apply to 
hearings held before the AOJ and not to hearings held before the Board. 
VA is also amending Sec.  20.706 to further clarify that Board Members 
presiding over a hearing on appeal are not bound by the hearing 
procedures in Sec.  3.103(c) and must conduct hearings in accordance 
with part 20, subpart H, which contains provisions governing Board 
hearing practice and procedure. In Appendix A to part 20, VA is 
removing the cross references to Sec.  3.103.
    VA has determined these clarifying changes are necessary because of 
a recent decision by the United States Court of Appeals for Veterans 
Claims (Court) in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 
applied the provisions of Sec.  3.103(c)(2) to a Board hearing. The 
Bryant Court held that the provisions of Sec.  3.103(c)(2) require a 
``Board hearing officer'' to ``fully explain the issues still 
outstanding that are relevant and material to substantiating the 
claim'' and to ``suggest that a claimant submit evidence on an issue 
material to substantiating the claim when the record is missing any 
evidence on that issue or when the testimony at the hearing raises an 
issue for which there is no evidence in the record.'' Id. at 496-97. 
The Court concluded with respect to one of the service connection 
claims on appeal that the Veteran had been prejudiced because the 
presiding ``Board hearing officer'' had not explained matters material 
to the outcome of the claim and had not suggested that the Veteran 
could secure evidence regarding a nexus between his current disability 
and service. Id. at 499. The Court found prejudice existed because 
evidence of a nexus was not of record at the time of the hearing and 
remained lacking at the time of the decision. Id.
    In reaching its conclusions, the Court relied in part on its 
previous holding in Douglas v. Derwinski, 2 Vet. App. 435 (1992), which 
held that the provisions of Sec.  3.103(c) applied to hearings before 
the Board. Bryant, 23 Vet. App. at 494 (citing Douglas, 2 Vet. App. at 
442). At the time the Court decided Douglas, the Board's Rules of 
Practice provided that hearings on appeal could be held: ``(a) [b]efore 
a section of the Board of Veterans' Appeals in Washington, DC[;] (b) * 
* * before a traveling section of the Board of Veterans' Appeals during 
regularly scheduled visits to [VA] facilities[;] [or] (c) [b]efore 
appropriate personnel in the [VA] regional or other office nearest the 
appellant's residence, acting as a hearing agency for the Board of 
Veterans' Appeals.'' 38 CFR 19.160 (1991). Under the former rules, if 
an appellant chose to have a hearing before employees of the AOJ acting 
as a hearing agency for the Board, then he or she was not entitled to a 
subsequent hearing before a Board Member. See id.; see also Veterans 
Benefits Administration, M21-1 Adjudication Procedures Manual, Sec.  
18.17g (1991) (``A formal hearing on appeal at a regional office will 
be in lieu of such a hearing before the [Board], except in the unusual 
case in which a special appearance by the claimant before the [Board], 
or the special attention of an accredited organization's headquarters 
in Washington, DC, is requested by the appellant.'').
    Not long after the Court decided Douglas, the Board amended its 
hearing regulations to terminate the practice of AOJ personnel holding 
appellate hearings on the Board's behalf. The final rulemaking noted 
that the Board was implementing these changes because it had decided 
``a clear demarcation should exist between the conduct of hearings by 
the Board and hearings conducted by [Veterans Benefits Administration] 
employees at regional offices.'' 58 FR 27934, 27934 (May 12, 1993). As 
a result of this procedural modification, an appellant now has the 
opportunity to appear for a hearing with the AOJ at any time prior to 
when his or her appeal is certified to the Board. 38 CFR 3.103(a); Your 
Rights to Appeal Our Decision, VA Form 4107 (Sept. 2009). The appellant 
also has a right to appear at a separate hearing on appeal before a 
Board Member. 38 CFR 20.700(a); see VA Form 4107 (stating that a 
hearing before the AOJ is separate from any hearing an appellant may 
later request before the Board); see also Gambill v. Shinseki, 576 F.3d 
1307, 1315, 1316 (Fed. Cir. 2009) (Bryson, J., concurring) (explaining 
that an appellant has a right to appear at hearings before the AOJ and 
the Board).
    The 1993 regulatory changes reflected VA's intent to clearly 
distinguish hearings before AOJs from hearings before the Board, 
including the duties of the respective VA personnel conducting the 
hearing. As a result of these changes, it has become standard VA 
practice and procedure that hearings before AOJs are governed by Sec.  
3.103 and hearings before the Board are governed by relevant provisions 
in part 20. The Court's holding in Bryant brought to light that the 
pertinent regulations do not clearly reflect VA's intent. Therefore, VA 
has decided to make clarifying changes to Sec. Sec.  3.103 and 20.706 
to ensure that the distinction between the duties of AOJ hearing 
officers and Board Members (also known as Veterans Law Judges (VLJs), 
see Sec.  19.2(b)) is clear on the face of the pertinent regulations 
and will not result in further confusion.
    In part 3, VA is revising Sec.  3.103(a) to clarify that the 
provisions governing hearings in Sec.  3.103 only apply to hearings 
conducted before the AOJ and that the provisions in part 20 govern 
hearings before the Board. VA is also removing the following language 
from Sec.  3.103(c)(1): ``subject to the limitations described in Sec.  
20.1304 of this chapter with respect to hearings in claims which have 
been certified to the Board of Veterans Appeals for appellate review.'' 
This language is not necessary since the revision to paragraph (a) 
clarifies that Sec.  3.103 does not apply to Board hearings. VA is also 
revising paragraph (c)(1) to change references to ``original 
determinative authority'' to ``VA office having original 
jurisdiction''. This language is consistent with other portions of 
Sec.  3.103(c)(1).
    In part 20, VA is amending Sec.  20.706 to state that the conduct 
of hearings by presiding Board Members or VLJs is governed by subpart H 
of part 20 and that Board Members are not bound by the hearing 
provisions of Sec.  3.103(c). In Appendix A, VA is removing two cross 
references to Sec.  3.103 listed for Sec. Sec.  20.1 and 20.1304 to 
ensure they do not cause any confusion regarding the correct 
applicability of Sec.  3.103.

Administrative Procedure Act

    This document merely clarifies current procedures for obtaining and 
conducting a hearing on a claim for VA benefits before the VA agency of 
original jurisdiction or the Board. It does not create new procedure, 
and no substantive change is intended. Accordingly, this document is 
being published as a final rule pursuant to 5 U.S.C. 553(b)(A), which 
excepts procedural rules from the APA's notice-and-comment and delayed 
effective date requirements.

Paperwork Reduction Act

    This document contains no provisions constituting a collection of 
information under the Paperwork Reduction Act (44 U.S.C. 3501-3521).

[[Page 52574]]

Regulatory Flexibility Act

    The initial and final regulatory flexibility analysis requirements 
of sections 603 and 604 of the Regulatory Flexibility Act, 5 U.S.C. 
601-612, are not applicable to this rule because a notice of proposed 
rulemaking is not required for this rule. Even so, the Secretary of 
Veterans Affairs 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 rule will affect only individual VA beneficiaries and will 
not directly affect small entities. 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.

Executive Order 12866--Regulatory Planning and Review

    Executive Order 12866 directs agencies to assess all costs and 
benefits of available regulatory alternatives and, when regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity). The Executive 
Order classifies a ``significant regulatory action,'' requiring review 
by the Office of Management and Budget (OMB) unless OMB waives such 
review, as any regulatory action that is likely to result in a rule 
that may: (1) Have an annual effect on the economy of $100 million or 
more, or adversely affect in a material way the economy, a sector of 
the economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities; (2) create a serious inconsistency or otherwise interfere 
with an action planned or taken by another agency; (3) materially alter 
the budgetary impact of entitlements, grants, user fees or loan 
programs or the rights and obligations of recipients thereof, or (4) 
raise novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in the Executive 
Order.
    VA has examined the economic, interagency, legal, and policy 
implications of this rulemaking and has concluded that it is not a 
significant regulatory action under the Executive Order.

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 issuing any rule that may result in an expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector of $100 million or more (adjusted annually for 
inflation) in any given year. This rule would have no such effect on 
State, local, and tribal governments, or on the private sector.

Catalog of Federal Domestic Assistance Numbers and Titles

    The Catalog of Federal Domestic Assistance program numbers and 
titles for this rule are 64.100, Automobiles and Adaptive Equipment for 
Certain Disabled Veterans and Members of the Armed Forces; 64.101, 
Burial Expenses Allowance for Veterans; 64.102, Compensation for 
Service-Connected Deaths for Veterans' Dependents; 64.103, Life 
Insurance for Veterans; 64.104, Pension for Non-Service-Connected 
Disability for Veterans; 64.105, Pension to Veterans Surviving Spouses, 
and Children; 64.106, Specially Adapted Housing for Disabled Veterans; 
64.109, Veterans Compensation for Service-Connected Disability; 64.110, 
Veterans Dependency and Indemnity Compensation for Service-Connected 
Death; 64.114, Veterans Housing--Guaranteed and Insured Loans; 64.115, 
Veterans Information and Assistance; 64.116, Vocational Rehabilitation 
for Disabled Veterans; 64.117, Survivors and Dependents Educational 
Assistance; 64.118, Veterans Housing--Direct Loans for Certain Disabled 
Veterans; 64.119, Veterans Housing--Manufactured Home Loans; 64.120, 
Post-Vietnam Era Veterans' Educational Assistance; 64.124, All-
Volunteer Force Educational Assistance; 64.125, Vocational and 
Educational Counseling for Servicemembers and Veterans; 64.126, Native 
American Veteran Direct Loan Program; 64.127, Monthly Allowance for 
Children of Vietnam Veterans Born with Spina Bifida; and 64.128, 
Vocational Training and Rehabilitation for Vietnam Veterans' Children 
with Spina Bifida or Other Covered Birth Defects.

Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this 
document and authorized the undersigned to sign and submit the document 
to the Office of the Federal Register for publication electronically as 
an official document of the Department of Veterans Affairs. John R. 
Gingrich, Chief of Staff, Department of Veterans Affairs, approved this 
document on August 16, 2011, for publication.

List of Subjects

38 CFR Part 3

    Administrative practice and procedure, Claims, Disability benefits, 
Health care, Pensions, Radioactive materials, Veterans, Vietnam.

38 CFR Part 20

    Administrative practice and procedure, Claims, Veterans.

    Dated: August 18, 2011.
Robert C. McFetridge,
Director of Regulation Policy and Management, Office of the General 
Counsel, Department of Veterans Affairs.

    For the reasons set forth in the preamble, VA amends 38 CFR parts 3 
and 20 as follows:

PART 3--ADJUDICATION

Subpart A--Pension, Compensation, and Dependency and Indemnity 
Compensation

0
1. The authority citation for part 3, subpart A continues to read as 
follows:

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


0
2. Amend Sec.  3.103 by:
0
a. Revising the last sentence of paragraph (a) and adding a new 
sentence after the last sentence.
0
b. Revising paragraph (c)(1).
    The revisions read as follows:


Sec.  3.103  Procedural due process and appellate rights.

    (a) * * * The provisions of this section apply to all claims for 
benefits and relief, and decisions thereon, within the purview of this 
part 3, except that the provisions of this section governing hearings 
apply only to hearings conducted before the VA office having original 
jurisdiction over the claim. Hearings before the Board of Veterans' 
Appeals are governed by part 20 of this chapter.
* * * * *
    (c) * * * (1) Upon request, a claimant is entitled to a hearing at 
any time on any issue involved in a claim within the purview of part 3 
of this chapter. VA will provide the place of hearing in the VA office 
having original jurisdiction over the claim or at the VA office nearest 
the claimant's home having adjudicative functions, or, subject to 
available resources and solely at the option of VA, at any other VA 
facility or federal building at which suitable hearing facilities are 
available. VA will provide one or more employees of the VA office 
having original jurisdiction over the claim to conduct the hearing and 
to be responsible for establishment

[[Page 52575]]

and preservation of the hearing record. Hearings in connection with 
proposed adverse actions and appeals shall be held before one or more 
employees of the VA office having original jurisdiction over the claim 
who did not participate in the proposed action or the decision being 
appealed. All expenses incurred by the claimant in connection with the 
hearing are the responsibility of the claimant.
* * * * *

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

0
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.

Subpart H--Hearings on Appeal

0
4. Revise Sec.  20.706 to read as follows:


Sec.  20.706  Rule 706. Functions of the presiding Member.

    The presiding Member is responsible for the conduct of the hearing, 
in accordance with the provisions of subpart H of this part, 
administering the oath or affirmation, and ruling on questions of 
procedure. The presiding Member will assure that the course of the 
hearing remains relevant to the issue, or issues, on appeal and that 
there is no cross-examination of the parties or witnesses. The 
presiding Member will take such steps as may be necessary to maintain 
good order at hearings and may terminate a hearing or direct that the 
offending party leave the hearing if an appellant, representative, or 
witness persists in disruptive behavior. The presiding Member is not 
bound by the procedures described in Sec.  3.103(c) of this chapter, as 
those procedures only apply to hearings before the agency of original 
jurisdiction.

0
5. Amend APPENDIX A TO PART 20--CROSS-REFERENCES table by:
0
a. Removing entries ``20.1''; ``38 CFR 3.103(a)''; and ``Statement of 
policy.''.
0
b. Revising entry 20.1304 to read as follows:

APPENDIX A TO PART 20--CROSS-REFERENCES

----------------------------------------------------------------------------------------------------------------
                                                                            Title of cross- referenced material
                  Sec.                           Cross-reference                        or comment
----------------------------------------------------------------------------------------------------------------
 
                                                  * * * * * * *
20.1304................................  38 CFR 20.700-20.717...........  See also rehearings.
 
                                                  * * * * * * *
----------------------------------------------------------------------------------------------------------------

[FR Doc. 2011-21513 Filed 8-22-11; 8:45 am]
BILLING CODE 8320-01-P