[Federal Register Volume 83, Number 155 (Friday, August 10, 2018)]
[Proposed Rules]
[Pages 39818-39869]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15754]
[[Page 39817]]
Vol. 83
Friday,
No. 155
August 10, 2018
Part II
Department of Veterans Affairs
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38 CFR Parts 3, 8, 14, et al.
VA Claims and Appeals Modernization; Proposed Rule
Federal Register / Vol. 83 , No. 155 / Friday, August 10, 2018 /
Proposed Rules
[[Page 39818]]
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DEPARTMENT OF VETERANS AFFAIRS
38 CFR Parts 3, 8, 14, 19, 20, and 21
RIN 2900-AQ26
VA Claims and Appeals Modernization
AGENCY: Department of Veterans Affairs.
ACTION: Proposed rule.
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SUMMARY: The Department of Veterans Affairs (VA) is proposing to amend
its claims adjudication, appeals, and Rules of Practice of the Board of
Veterans' Appeals (Board) regulations. In addition, VA proposes to
revise its regulations with respect to accreditation of attorneys,
agents, and Veterans Service Organization (VSO) representatives; the
standards of conduct for persons practicing before VA; and the rules
governing fees for representation. This rulemaking is needed to
implement the Veterans Appeals Improvement and Modernization Act. That
law amended the procedures applicable to administrative review and
appeal of VA decisions denying claims for benefits, creating a new,
modernized review system.
Unless otherwise specified, VA intends to make the proposed
regulatory changes applicable to claims processed under the new review
system, which generally applies where an initial VA decision on a claim
is provided on or after the effective date or where a claimant has
elected to opt into the new review system under established procedures.
DATES: Comments must be received by VA on or before October 9, 2018 to
be considered in the formulation of the final rule.
ADDRESSES: Written comments may be submitted through
www.Regulations.gov; by mail or hand-delivery to Director, Regulation
Policy and Management (00REG), Department of Veterans Affairs, 810
Vermont Avenue NW, Room 1063B, Washington, DC 20420; or by fax to (202)
273-9026. Comments should indicate that they are submitted in response
to ``RIN 2900-AQ26--VA Claims and Appeals Modernization.'' Copies of
comments received will be available for public inspection in the Office
of Regulation Policy and Management, Room 1063B, between the hours of
8:00 a.m. and 4:30 p.m., Monday through Friday (except holidays).
Please call (202) 461-4902 for an appointment. This is not a toll-free
number. In addition, during the comment period, comments may be viewed
online through the Federal Docket Management System (FDMS) at
www.Regulations.gov.
FOR FURTHER INFORMATION CONTACT: Veterans Benefits Administration
information: Jennifer Williams, Senior Management and Program Analyst,
Appeals Management Office, Department of Veterans Affairs, 810 Vermont
Avenue NW, Washington, DC 20420, (202) 530-9124 (this is not a toll-
free number). Board of Veterans' Appeals information: Rachel Sauter,
Counsel for Legislation, Regulations, and Policy, Board of Veterans'
Appeals. Department of Veterans Affairs, 810 Vermont Avenue NW,
Washington, DC 20420, (202) 632-5555 (this is not a toll-free number).
SUPPLEMENTARY INFORMATION: Modernizing the appeals process is a top
priority for VA. In fiscal year (FY) 2017, claimants generally waited
less than 125 days for an initial decision on VA disability
compensation claims; however, they waited an average of 3 years for a
final decision if they chose to appeal. Moreover, in FY2017 those
claimants who chose to continue their appeal to the Board waited an
average of 7 years for a decision from the date that they initiated
their appeal, and the Board decision may not have resolved the appeal.
Public Law (Pub. L.) 115-55, the Veterans Appeals Improvement and
Modernization Act of 2017 (hereinafter ``Pub. L. 115-55'') provides
much-needed comprehensive reform for the legacy appeals process, to
help ensure that claimants receive a timely decision on review where
they disagree with a VA claims adjudication. It replaces the current VA
appeals process with a new review process that makes sense for
veterans, their advocates, VA, and stakeholders.
In the current VA appeal process, which is set in law, appeals are
non-linear and may require VA staff to engage in gathering and
receiving evidence and re-adjudicating appeals based on new evidence.
This process of gathering evidence and readjudication can add years to
the appeals process, as appeals churn between the Board and the agency
of original jurisdiction. Additionally, jurisdiction of appeals
processing is shared between the Board and the agency of original
jurisdiction, which, for purposes of the changes made by this proposed
rule, is typically the Veterans Benefits Administration (VBA).
The new statutory appeals framework features three differentiated
lanes from which a claimant may choose in seeking review of a VA denial
(or partial denial) of a claim. One lane is for review of the same
evidence by a higher-level claims adjudicator in the agency of original
jurisdiction (higher-level review); one lane is for submitting new and
relevant evidence with a supplemental claim to the agency of original
jurisdiction (supplemental claim); and one lane is the appeals lane for
seeking review by a Veterans Law Judge at the Board by filing a Notice
of Disagreement (appeal to the Board). In an appeal to the Board,
Public Law 115-55 eliminates intermediate and duplicative steps
previously required, such as the Statement of the Case (SOC) and the
substantive appeal. Furthermore, the new law will allow the Board to
maintain three separate dockets for handling the following categories
of appeals: (1) Appeals where the claimant has requested a hearing, (2)
appeals with no request for a hearing but where the claimant elects to
submit other forms of evidence, and (3) appeals where the claimant
requests Board review on the same evidence that was before the agency
of original jurisdiction. These separate dockets will allow the Board
to more efficiently and effectively manage distinctly different types
of work. As a result of the new lane options, claimants will have
increased choice for resolving disagreements with a VA decision on a
claim.
In addition, the differentiated lanes will allow the agency of
original jurisdiction to be the claim development entity within VA and
the Board to be the appeals entity. This design is intended to reduce
the uncertainty caused by the current process, in which a claimant
initiates an appeal in the agency of original jurisdiction and the
appeal is often a years-long continuation of the claim development
process. It ensures that all claim development by the agency of
original jurisdiction occurs in the context of either an initial or
supplemental claim filed with the agency of original jurisdiction,
rather than in an appeal.
The agency of original jurisdiction's duty to assist in developing
evidence will continue to apply when a claimant initiates a new or
supplemental claim. However, where a claimant seeks review of an agency
of original jurisdiction decision, the duty to assist generally no
longer applies, unless and until the claimant elects to file a
supplemental claim, at which point the duty to assist applies to the
supplemental claim. The proposed regulations also contain a mechanism
to correct any duty to assist errors occurring before the agency of
original jurisdiction, if such errors are discovered on review or
appeal, by requiring that the claim be returned to
[[Page 39819]]
the agency of original jurisdiction for correction of the error, unless
the maximum benefit is granted. The proposed regulations require claim
decision notices to be clearer and more detailed. The improved notices
will help claimants and their advocates make informed choices as to
which review option makes the most sense.
The statutory requirements, which we propose to codify in these
proposed regulations, provide a claimant who is not fully satisfied
with the result of any review lane one year to seek further review
while preserving an effective date for benefits based upon the original
filing date of the claim. For example, a claimant could go straight
from an initial agency of original jurisdiction decision on a claim to
an appeal to the Board. If the Board decision was not favorable, but it
helped the claimant understand what evidence was needed to support the
claim, then the claimant would have one year to submit new and relevant
evidence to the agency of original jurisdiction in a supplemental claim
without fearing loss of the effective date for choosing to go to the
Board first.
The differentiated lane framework required by statute and proposed
to be codified in these regulations has many advantages. It provides a
streamlined process that allows for early resolution of a claimant's
appeal and the lane options allow claimants to tailor the process to
meet their individual needs and control their VA experience. It also
enhances claimants' rights by preserving the earliest possible
effective date for an award of benefits, regardless of the option(s)
they choose, as long as the claimant pursues review of a claim in any
of the lanes within the established timeframes. By having a higher-
level review lane within the claims process and a lane at the Board
providing for review on only the record considered by the initial
claims adjudicator, the new process provides a feedback mechanism for
targeted training and improved quality in the VBA or other claims
adjudication agency.
To ensure that as many claimants as possible benefit from the
streamlined features of the new process, Public Law 115-55 and the
proposed regulations provide opportunities for claimants and appellants
in the legacy system to take advantage of the new system. Some
claimants who receive a decision prior to the effective date of the law
will be able to participate in the new system. Other claimants who
receive an SOC or Supplemental Statement of the Case (SSOC) in a legacy
appeal after the effective date of the law will also have an
opportunity to opt-in to the new system.
VA initially met in March 2016 with Veterans Service Organizations
(VSOs), congressional staff, and other stakeholders to develop a plan
to reform the current appeals process. The result of this collaborative
work was a new appeals framework, with the same fundamental features as
the process described in section 2 of Public Law 115-55. This new
process will provide veterans with timely, fair, and high quality
decisions. The engagement of those organizations that participated in
the March 2016 ``Appeals Summit'' ultimately led to a stronger
proposal, as VA was able to incorporate stakeholder feedback and
benefit from the perspective of those with extensive experience in
helping veterans navigate the complex VA appeals process.
In November 2017, VA again met with stakeholders to highlight
important changes required by the new law, answered questions, and
discussed specific concerns. VA is grateful to all of the stakeholders
for their contributions of time, energy, and expertise in this effort.
The majority of amendments addressed in this proposed rule are
mandatory to comply with the law. Through careful collaboration with
VA, VSOs, and other stakeholders, in enacting Public Law 115-55,
Congress provided a highly detailed statutory framework for claims and
appeals processing. VA is unable to alter proposed amendments that
directly implement mandatory statutory provisions. In addition to
implementing mandatory requirements, VA proposes a few interpretive or
gap-filling amendments to the regulations which are not specifically
mandated by Public Law 115-55, but that VA believes are in line with
the law's goals to streamline and modernize the claims and appeals
process. These amendments fill gaps in the new law left by Congress,
reduce unnecessary regulations, streamline and modernize processes, and
improve services for Veterans.
This proposed rule contains amendments to parts 3, 8, 14, 19, 20,
and 21, as described in detail below.
Part 3--Adjudication
VA proposes to amend the regulations in 38 CFR part 3 as described
in the section-by-section supplementary information below. These
regulations govern the adjudication of claims for monetary benefits
(e.g., compensation, pension, dependency and indemnity compensation,
and burial benefits), which are administered by the VBA. Other VA
agencies of original jurisdiction may have adopted portions of these
regulations, or their content, with respect to their adjudication and
review processes.
Sec. 3.1 Definitions.
VA proposes to amend the definition of ``claim'' in Sec. 3.1(p),
to add definitions of the terms ``initial claim'' and ``supplemental
claim,'' as the distinction between those terms is significant under
the changes made by Public Law 115-55, which provides for the filing
and adjudication of supplemental claims and adds a definition of
supplemental claim at 38 U.S.C. 101(36). VA proposes to define an
``initial claim'' as a claim for a benefit other than a supplemental
claim, including the first filing by a claimant (original claim) and a
subsequent claim filed by a claimant for an increase in a disability
evaluation, a new benefit, or a new disability. The definition of a
claim for increase is moved into this section from Sec. 3.160 and is
expanded to more accurately reflect the nature of such claims.
Public Law 115-55, section 2(a), defines ``supplemental claim'' as
``a claim for benefits under laws administered by the Secretary filed
by a claimant who had previously filed a claim for the same or similar
benefits on the same or similar basis.'' The Secretary is required to
readjudicate the claim if new and relevant evidence is presented or
secured with respect to a supplemental claim. VA proposes to clarify in
the regulatory definition of supplemental claim that VA must have
issued a decision with respect to the previously filed claim before a
supplemental claim can be filed. The inclusion of this requirement for
a supplemental claim is consistent with the language of revised 38
U.S.C. 5108, which requires the Secretary to ``readjudicate'' a claim
where ``new and relevant evidence is presented or secured with respect
to a supplemental claim.'' This language presupposes that VA has
already adjudicated the claim and issued a notice of decision before a
supplemental claim is filed.
With the inclusion of additional definitions under Sec. 3.1(p), VA
proposes to amend the cross references to include a reference to
supplemental claims under the new Sec. 3.2501.
Sec. 3.103 Procedural Due Process and Other Rights
Under 38 U.S.C. 5104(a), when VA makes a decision affecting the
provision of benefits to a claimant, VA must provide the claimant and
his or her representative with notice of the decision. Under current 38
U.S.C.
[[Page 39820]]
5104(b), in any case where VA denies the benefit sought, that notice
must include a statement of the reasons for the decision and a summary
of the evidence considered by VA.
Public Law 115-55 revised 38 U.S.C. 5104(b) to specify that each
notice provided under section 5104(a) must include all of the
following: Identification of the issues adjudicated; a summary of the
evidence considered by VA; a summary of applicable laws and
regulations; identification of findings favorable to the claimant; in
the case of a denial, identification of elements not satisfied leading
to the denial; an explanation of how to obtain or access evidence used
in making the decision; and, if applicable, identification of the
criteria that must be satisfied to grant service connection or the next
higher-level of compensation.
VA proposes to amend its procedures for issuing decisions to
conform with the amendments to 38 U.S.C. 5104(b). Enhanced decision
notices will allow claimants and their representatives to make more
informed choices about whether to seek further review and, if so, which
of the new review lanes best fits the claimant's needs: Filing a
supplemental claim with the agency of original jurisdiction, requesting
a higher-level review of the initial decision within the agency of
original jurisdiction, or appealing to the Board.
In addition, to comply with 38 U.S.C. 5104B(d), VA proposes to
amend Sec. 3.103 to explain that the evidentiary record for a claim
before the agency of original jurisdiction closes when VA issues notice
of a decision on said claim. A claimant may reopen the evidentiary
record by submitting a supplemental claim or claim for an increase on
the prescribed application form. Consistent with its discretionary
authority under 38 U.S.C. 501(a), VA proposes to require a prescribed
application form for submitting a supplemental claim consistent with
current regulations applicable to claims. Submission of a substantially
complete initial or supplemental claim also triggers VA's duty to
assist in the gathering of evidence under Sec. 3.159. The evidentiary
record also reopens when a claim must be readjudicated due to
identification of a duty to assist error on higher-level review or by
the Board. Whenever the record reopens, evidence submitted to the
agency of original jurisdiction while the record was closed will become
part of the record to be considered for a subsequent adjudication.
VA also proposes to make several nomenclature changes within Sec.
3.103 to update language and clarify that a hearing before VA may be
conducted in person or through videoconferencing tools available at a
regional office closest to the claimant. The changes also clarify that
a hearing will not be provided in connection with a request for higher-
level review. Claimants will have the opportunity to request an
informal conference in connection with a request for higher-level
review as provided in proposed Sec. 3.2601.
Finally, VA proposes to delete the last sentence of Sec.
3.103(c)(2), allowing a claimant to request visual examination during a
hearing by a physician designated by VA. Due to the complex
considerations involved in making determinations on the nature, origin,
or degree of disability, a physician's visual assessment during a
hearing has significant limitations. Disability assessments typically
involve a comprehensive clinical evaluation with appropriate
standardized testing to establish the diagnosis or origin, or
characterize the severity of impairment. For some conditions, this
could include specialized equipment, tests, or training that would not
be available by a physician during a visual examination; examples of
specialized testing could include neuropsychological evaluations for
traumatic brain injury (TBI) claimants. Accordingly, VA proposes to
remove the reference that claimants may request visual examination by a
physician at the hearing. Although VA does not currently have data on
the number of examinations requested by veterans during hearings, these
types of examinations are obsolete as Veterans and VA can now utilize
several other methods to add visual examination findings into the
record. These include Disability Benefits Questionnaires (DBQs) that a
claimant may ask any physician to complete to document visual findings
and contract examinations which support VA's disability evaluation
process and make obtaining examinations easier and more efficient by
bypassing the requirement to formally schedule one with a VA provider.
Sec. 3.104 Finality and Binding Nature of Decisions
VA proposes to amend Sec. 3.104(a), concerning the binding nature
of decisions, to conform with other regulatory changes implementing
Public Law 115-55. In addition, VA proposes to remove the word
``final'' from this section for consistency with the definition of
finally adjudicated claim in Sec. 3.160(d). Decisions issued by an
agency of original jurisdiction are binding on VA field offices under
Sec. 3.104 when issued, even though the decision is not finally
adjudicated because the period for a claimant to seek review of the
decision is still open. The current wording of Sec. 3.104 refers to
such decisions as ``final'' and binding when they are issued. The
definition of ``finally adjudicated'' in Sec. 3.160(d) will be
maintained and a decision on a claim is final when the claim is finally
adjudicated.
In addition, Public Law 115-55 added a new section, 38 U.S.C.
5104A, providing that any findings favorable to the claimant will be
binding on all subsequent adjudicators within VA, unless clear and
convincing evidence is shown to the contrary to rebut the favorable
findings. VA proposes to amend Sec. 3.104 to include a new paragraph
implementing this provision. VA further proposes to define a finding as
a conclusion on either a question of fact or on an application of law
to facts.
Sec. 3.105 Revision of Decisions
VA proposes to amend Sec. 3.105(a) to incorporate existing legal
standards recognized in judicial decisions applicable to revision of
final decisions under 38 U.S.C. 5109A. This statute allows for revision
or reversal of final decisions by the Secretary based on clear and
unmistakable error (CUE). These rules are set forth in proposed Sec.
3.105(a)(1). Proposed Sec. 3.105(a)(2) contains standards applicable
to revision of decisions that are not yet final.
Proposed Sec. 3.105(a)(1) incorporates judicial standards
applicable to revision of final decisions based on CUE under 38 U.S.C.
5109A. No substantive changes are intended to the existing law
governing revision of final agency of original jurisdiction decisions
based on CUE. The proposed amendments conform regulations with respect
to revision of final decisions by the agency of original jurisdiction
with similar regulatory changes previously promulgated with respect to
revision of final Board decisions based on CUE under 38 U.S.C. 7111.
See 38 CFR 20.1400--20.1411; 64 FR 2134 (January 13, 1999). Those
changes similarly incorporated judicially recognized CUE principles and
were upheld in Disabled American Veterans v. Gober, 234 F.3d 682 (Fed.
Cir. 2000). The Court in Disabled American Veterans found that the
enactment of statutory sections 5109A and 7111 `` `codified . . . the
Court of Appeals for Veterans Claims' long standing interpretation of
CUE.' '' Id. at 687 (quoting Bustos v. West, 179 F.3d 1378, 1380 (Fed.
Cir. 1999)).
Judicial decisions have recognized that CUE applies only to final
administrative decisions. See, e.g., Richardson v. Nicholson, 20
Vet.App.
[[Page 39821]]
64, 70-71 (2006) (stating that ``CUE must be based on a final
adjudication'' and citing the definition of ``finally adjudicated
claim'' in 38 CFR 3.160(d)); see also Cook v. Principi, 318 F.3d 1334,
1342 (Fed. Cir. 2002).
Further, CUE is a specific and rare kind of error, requiring the
claimant to demonstrate three elements: (1) The error must be of a
specific type--``either the correct facts, as they were known at the
time, were not before the adjudicator or the statutory or regulatory
provisions extant at the time were incorrectly applied;'' (2) the error
must be ``undebatable;'' and (3) the error must undebatably be outcome-
determinative, meaning that the error would have ``manifestly changed
the outcome'' at the time it was made. Willsey v. Peake, 535 F.3d 1368,
1371 (Fed. Cir. 2008) (citing Cook, 318 F.3d at 1344 and Russell v.
Principi, 3 Vet.App. 310, 313-14 (1992)); see also Cushman v. Shinseki,
576 F.3d 1290, 1301-02 (Fed. Cir. 2009) (error must be outcome
determinative); Bustos v. West, 179 F.3d 1378, 1381 (Fed. Cir. 1999)
(affirming ``manifestly changed outcome'' requirement).
An error is undebatable if ``no reasonable adjudicator could weigh
the evidence in the way that the adjudicator did.'' Willsey, 535 F.3d
at 1372; Russell, 3 Vet.App. at 313-14 (CUE errors must be undebatable,
such that ``reasonable minds could only conclude that the original
decision was fatally flawed at the time it was made''). Accordingly,
CUE cannot be based on a ``disagreement as to how the facts were
weighed or evaluated.'' Id. at 313.
The error must be shown based solely on the evidentiary record as
it existed at the time of the disputed regional office (RO)
adjudication and the law that existed at the time of subject
adjudication. Cook, 318 F.3d at 1343-45; Russell, 3 Vet. App. at 314
(``New or recently developed facts or changes in the law subsequent to
the original adjudication . . . do not provide grounds for revising a
finally decided case''); Jordan v. Nicholson, 401 F.3d 1296, 1299 (Fed.
Cir. 2005) (subsequent change in interpretation of statute not
applicable to CUE request as to final VA decisions).
The caselaw also addresses burden of proof issues. As the Court
stated in Andre v. Principi, `` 'the party bringing a CUE challenge to
a final RO decision bears the burden of proving that the decision was
based on a clear and unmistakable error.' '' 301 F.3d. 1354, 1361 (Fed.
Cir. 2002) (quoting Pierce v. Principi, 240 F.3d 1348,1355 (Fed. Cir.
2001)). `` `This burden is not satisfied by the mere assertion that the
decision contained CUE; instead, the party must describe the alleged
error ``with some degree of specificity'' and must provide persuasive
reasons `as to why the result would have been manifestly different but
for the alleged error.' '' Id. (citation omitted). Mere allegations of
failure to follow regulations or failure to give due process, or any
other general, non-specific claims of error, are insufficient to raise
a claim of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). An allegation
that the Secretary did not fulfill the duty to assist is insufficient
to raise the issue of CUE. See, e.g., Crippen v. Brown, 9 Vet. App.
412, 418 (1996).
Proposed Sec. 3.105(a)(2) applies to decisions that are not
finally adjudicated at the agency of original jurisdiction. The
proposed language reflects current policy and practice with respect to
matters adjudicated under part 3 of VA's regulations that the outcome
of a decision will not be revised by another adjudicator in the agency
of original jurisdiction on his or her own initiative, based on the
same evidentiary record, unless a determination is made that the
outcome of the decision is clearly erroneous. This reflects a policy
decision by VA to restrict the discretion of subsequent adjudicators to
reverse prior determinations in the absence of new evidence. In
accordance with new 38 U.S.C. 5104A, the adjudicator may, in
determining whether the result was clearly erroneous, take into account
any favorable findings subject to reversal based on clear and
convincing evidence to the contrary. Determinations under Sec.
3.105(a)(2) are therefore legally distinct from determinations under
Sec. 3.105(a)(1) as to whether a final decision should be revised
based on CUE.
In addition, VA proposes to amend paragraph (b) to clarify that
difference of opinion authority is given to VA employees designated to
complete higher-level reviews to implement the requirement in new 38
U.S.C. 5104B that a higher-level review is de novo, subject to the rule
protecting favorable findings. A new paragraph is also added at the end
of Sec. 3.105 to reflect that VA decisions may now be revised through
resolution of a timely-filed supplemental claim under 38 U.S.C. 5108 or
higher-level review under 38 U.S.C. 5104B.
No changes are necessary to Sec. Sec. 3.105(c) through (h), which
govern severance of service connection and reduction in evaluations,
such as reductions in pension payments and reductions in evaluations of
a service-connected disability. The standards and procedures set forth
in these paragraphs will continue to apply and an adjudicator
considering whether to reduce or discontinue an evaluation under Sec.
3.105 is not bound under the ``favorable finding'' rule in new section
5104A of the statute that protects findings relating to a disability
evaluation for a particular period of time but does not preclude a
subsequent finding that the disability thereafter improved.
Rating evaluations and pension awards are running awards, resulting
in recurring payments being made subsequent to an initial award. See,
e.g., Dent v. McDonald, 27 Vet.App. 362, 372 (2015) (pension is a
``running award,'' meaning ``recurring payments made subsequent to an
initial award''). Changes in the underlying facts that led to the
original award may warrant a discontinuance or reduction of a running
award. See, e.g., 38 U.S.C Sec. 5112 (governing effective dates of
reductions and discontinuances); 38 CFR 3.273 (describing monthly
pension as a ``running award'' and requiring adjustment when there is a
change in income); Sec. 3.105 (noting that the provisions regarding
the date of discontinuance of awards are applicable to running awards
such as monthly pension and those based on disability evaluations);
Sec. 3.344 (governing disability evaluation reductions on the basis of
medical reports showing improvement in a service-connected condition).
Determinations of whether a running award should be adjusted are based
on different facts for a different time period than that for which the
initial award was made. Accordingly, a determination of the appropriate
level of a running award made in an initial decision is a finding
different than a later finding as to whether the previously assigned
level should be reduced or discontinued. Therefore, an adjudicator
considering whether to reduce or discontinue an evaluation under Sec.
3.105 is not assessing prior entitlement under the initial award of
disability evaluation and is not bound by prior ``favorable findings''
under section 5104A of the statute. No change to the standards and
procedures in Sec. Sec. 3.105(c) through (h) is therefore required.
Sec. 3.151 Claims for Disability Benefits
Public Law 115-55 added 38 U.S.C. 5104C, which outlines the
available review options following a decision by the agency of original
jurisdiction. VA proposes to amend Sec. Sec. 3.2500 and 3.151
consistent with the statute to provide that a claimant may request one
of the three review options under Sec. 3.2500 (higher-level review,
supplemental
[[Page 39822]]
claim, appeal to the Board) for each issue decided by VA, consistent
with new 38 U.S.C 5104C. A claimant would not be limited to choosing
the same review option for a decision that adjudicated multiple issues.
Proposed Sec. 3.151(c) defines an issue for this purpose as an
adjudication of a specific entitlement. For example, with respect to
service-connected disability compensation, an issue would be
entitlement to compensation for a particular disability (and any
ancillary benefits). This definition of ``issue'' is consistent with
the definition of issue in Sec. 20.1401(a), as interpreted by the U.S.
Court of Appeals for Veterans Claims. See Hillyard v. Shinseki, 24 Vet.
App. at 353 (equating the term issue with a ``claim'' and ``not a
theory or an element of a claim,'' citing Disabled American Veterans,
234 F.3d at 693). The option to select different review lanes would not
extend to specific components of the same entitlement claim, because
allowing a claim to be splintered into several pieces for review, each
potentially subject to different evidentiary rules and timelines, would
render the new review system unworkable, risk self-contradictory
decision-making by VA, and defeat Congressional intent to streamline
the review process and reduce processing times.
A simple hypothetical serves to illustrate VA's intent. Suppose a
claimant seeks disability compensation for a knee disability, and for a
mental disorder. Once the claimant receives an initial decision on
both, it is permissible for the claimant to elect to place the knee
issue and the mental disorder issue in separate lanes under the new
appeals system. The claimant may not, however, challenge the effective
date assigned for the knee in one lane, and simultaneously challenge
the assigned degree of disability for the knee in another lane.
In addition, VA proposes to include a new paragraph, Sec.
3.151(d), providing that the evidentiary record for a claim closes upon
issuance of notice of a decision on the claim. This provision is
similar to proposed Sec. 3.103(c).
Sec. 3.155 How To File a Claim
VA proposes to amend Sec. 3.155, regarding the procedures for
filing a claim, to make those procedures applicable to supplemental
claims under Public Law 115-55, except for the ``intent to file''
provisions found in Sec. 3.155(b). For example, this amendment would
apply existing procedures in Sec. 3.155(c) regarding the filing of
incomplete claim forms to supplemental claims. Accordingly, incomplete
supplemental claim forms would be considered filed on the date of
receipt if a complete supplemental claim is submitted within one year
of the filing date of the incomplete claim.
However, the ``intent to file'' provisions in Sec. 3.155(b), would
not be applied to supplemental claims. The new statutory framework
provides that a claimant can maintain the effective date of a potential
benefits award by submitting a request for review under any of the
three new lanes within one year of the date of the decision denying
benefits. Consistent with this requirement, the intent to file
provisions of Sec. 3.155(b) would not apply to supplemental claims as
this provision would allow for the submission of a supplemental claim
beyond the one-year period provided by statute for protection of
effective dates.
Sec. 3.156 Receipt of New Evidence
VA proposes to amend Sec. 3.156 to include reference to
supplemental claims based on new and relevant evidence as provided in
Public Law 115-55 and to clarify when a supplemental claim may be
filed. For supplemental claims received after the effective date, VA
proposes new Sec. 3.156(d) to replace the ``new and material''
evidence element, which is currently required under Sec. 3.156(a) for
requests for VA to reopen a finally adjudicated claim, with the more
liberal ``new and relevant'' evidence standard in section 2(i) of
Public Law 115-55. As noted in the House of Representatives Committee
Report (H. Rept.115-135, May 19, 2017, page 3), Congress's intent
``behind the change is to lower the current burden'' to have a claim
readjudicated based on new evidence. Public Law 115-55 defines
``relevant evidence'' under 38 U.S.C. 101(35) as ``evidence that tends
to prove or disprove a matter in issue.'' This new standard reduces a
claimant's threshold in identifying or submitting evidence as part of a
supplemental claim. Proposed Sec. 3.156(d), regarding supplemental
claims, includes a reference to new Sec. 3.2501 which provides further
details regarding the filing and adjudication of supplemental claims
and the ``new and relevant'' evidence standard.
VA proposes to maintain the ``new and material'' evidence standard,
found in 38 U.S.C. 5108 prior to the enactment of Public Law 115-55, in
subsection (a) as the standard for requests to reopen finally
adjudicated legacy claims where the request to reopen was decided prior
to the applicability date of the new law. Claims to reopen that were
filed, but not initially adjudicated, prior to the effective date will
be adjudicated under the more favorable ``new and relevant'' standard
applicable to supplemental claims. In addition, a supplemental claim
subject to the more favorable standard may be filed after the effective
date of the modernized review system, even with respect to legacy
claims finally adjudicated prior to the effective date of the new
system.
Under the new framework, the agency of original jurisdiction will
take action on new evidence that is received with an application for a
supplemental claim, or received or obtained prior to issuance of a
decision on the supplemental claim. As indicated in the explanation of
proposed Sec. 3.103, the record closes upon issuance of a notice of
decision on the claim, subject to reopening upon certain later events.
Therefore, VA proposes to limit the applicability of the current rule
under paragraph (b), allowing for the submission of new and material
evidence during the appeal period, to pending legacy claims that are
not subject to the modernized review system.
Sec. 3.159 Department of Veterans Affairs Assistance in Developing
Claims
38 U.S.C. 5103(a) requires VA to provide notice to a claimant of
the information or evidence necessary to substantiate the individual's
claim for benefits. Public Law 115-55 revised section 5103 to state
that this notice requirement applies to initial and supplemental
claims; however, VA is not required under the statute to provide that
notice with respect to a supplemental claim filed within one year of an
agency of original jurisdiction or Board decision on an issue. VA
proposes to amend Sec. 3.159 to include this exception.
VA also proposes to require VA to assist a claimant who reasonably
identifies existing records in connection with a supplemental claim, as
required under 38 U.S.C. 5108(b). VA proposes to further amend Sec.
3.159 to clarify that VA's duty to assist in the gathering of evidence
begins upon receipt of a substantially complete application for an
initial or supplemental claim and ends once VA issues a decision on the
claim. The definition of a substantially complete application in 3.159
has been amended to add the requirement that a supplemental claim
application include or identify potentially new evidence and that a
higher-level review request identify the date of the decision for which
review is sought. VA's duty to assist is reinstated when a
substantially complete initial claim or supplemental claim is filed or
when a claim is returned to correct a ``duty to assist'' error in a
prior decision as required by
[[Page 39823]]
38 U.S.C 5103A(f) as amended by Public Law 115-55.
Sec. 3.160 Status of Claims
Public Law 115-55 deleted the reference in 38 U.S.C 5103(a) to a
claim for reopening or a claim for increase and replaced it with
reference to a ``supplemental claim.'' Based on this change in
terminology, VA proposes to update several sections in part 3 to
replace the term ``reopened claim'' with ``supplemental claim.''
Claimants may request review of VA's decision by submitting a
supplemental claim after a decision by the VBA, the Board, or the Court
of Appeals for Veterans Claims. VA proposes to update paragraph (e) to
reflect the requirement that as of the applicability date of the new
law, VA will no longer accept requests to ``reopen'' claims and a
claimant must file a supplemental claim under Sec. 3.2501 to seek
review of a finally adjudicated claim for a previously disallowed
benefit.
VA proposes to clarify the definition of ``finally adjudicated
claim'' for decision notices issued on or after the effective date, to
be consistent with 38 U.S.C. 5104C, added by Public Law 115-55. With
the new claims and appeals system, a claim is considered finally
adjudicated at the expiration of the period to file a review option
following notice of a decision by the agency of original jurisdiction,
the Board, or the Court of Appeals for Veterans Claims. If an appeal is
timely filed from a decision of the Court of Appeals for Veterans
Claims, a claim is finally adjudicated upon its disposition on judicial
review. During the time period for seeking review, a claimant may elect
one of the three new review options depending on the type of decision
issued as outlined in 38 U.S.C. 5104C. Once the period to seek review
expires, an issue is considered finally adjudicated and a claimant
loses the effective date protections associated with continuous pursuit
of an issue. At that point, the claimant may seek review of the
decision by filing a supplemental claim or a request to revise the
final decision based on clear and unmistakable error under Sec.
3.105(a)(1).
VA proposes to amend the definition of complete claim to add a
requirement applicable to supplemental claims, in part to implement the
duty to assist requirements under 38 U.S.C. 5108(b). In order for a
supplemental claim to be considered complete and filed, it must
identify or include potentially new evidence. Identification of
potentially new evidence would trigger VA's duty to assist under
Sec. Sec. 3.2501 and 3.159(a)(3). Without that baseline level of
information, the complete claim standard will not have been met for
purposes of claim initiation of a supplemental claim. VA believes this
baseline level of substantive specificity is necessary in order to
minimize the possibility that claimants can effectively keep a claim
stream alive indefinitely by repeatedly asserting that they will submit
or identify new and relevant evidence at some future date, never doing
so, and then repeating the process once VA issues a decision. However,
we emphasize that the claim would be considered ``complete'' for claim
initiation purposes, and VA's duty to assist accordingly triggered,
when the claimant identifies evidence within the scope of VA's duty to
assist to obtain. It would not be required that VA actually obtain the
evidence, or make a finding that new and relevant in fact has been
secured, prior to recognizing that a supplemental claim has in fact
been filed.
Sec. 3.161 Expedited Claims Adjudication Initiative--Pilot Program
VA proposes to remove and reserve Sec. 3.161, which addresses the
Expedited Claims Adjudication (ECA) Initiative Pilot Program as this
program is no longer in use and will not continue based on changes to
the claims and appeals processes under Public Law 115-55. VA launched
the ECA Initiative Program on February 2, 2009. The two-year pilot
program was designed to accelerate claims and appeals processing.
Participation in the ECA Initiative was strictly voluntary and limited
to claimants who resided within the jurisdiction of the Nashville,
Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded
the ECA pilot program in 2013.
Sec. 3.328 Independent Medical Opinions
Public Law 115-55 repealed 38 U.S.C. 7109, which authorized the
Board to obtain independent medical opinions (IMOs). This repeal
removed the ability for the Board to request IMOs. Under 38 U.S.C.
5103A(f)(2) and 5109(d), as added by Public Law 115-55, the Board will,
when deemed necessary, direct the agency of original jurisdiction to
obtain an IMO. VA proposes to amend Sec. 3.328 to include a
requirement that VBA process IMO instructions received from the Board.
Sec. 3.400 General
VA proposes to amend Sec. 3.400 to incorporate the new rule that a
claimant may protect their initial filing date for effective date
purposes if they continuously pursue a claim as outlined in 38 U.S.C.
5110(a), as amended by Public Law 115-55. VA will consider the date of
receipt of the initial claim when determining the effective date for
any benefits that VA may award under a continuously pursued claim. VA
provides a reference to Sec. 3.2500 where this is further defined.
VA proposes to limit the applicability of the rules regarding new
and material evidence and reopened claims as VA will no longer accept
or process claims to reopen claims received after the effective date of
the new law.
Sec. 3.2400 Applicability of Modernized Review System
Proposed Sec. 3.2400 defines which claims are processed under the
new review system and which clams are processed under the legacy
appeals system. Public Law 115-55, section 2(x), provides generally
that the new review system will apply to all claims for which a notice
of decision is provided by the agency of original jurisdiction on or
after the later of (a) 540 days from the date of enactment, which falls
on February 14, 2019, or (b) 30 days after the date on which the
Secretary certifies to Congress that VA is ready to carry out the new
appeals system. Proposed Sec. 19.2(a) refers to this date as the
``effective date'' of the new review system. Proposed Sec.
3.2400(a)(1) implements the statutory definition and clarifies that the
new review system applies when an ``initial'' decision is provided
after the effective date. The term ``initial decision'' in this context
refers to the initial decision on each claim for entitlement to a
particular benefit, not the first decision that was ever issued by VA
for a claimant.
Proposed Sec. 3.2400 also clarifies that the new review system
will generally apply to initial decisions provided on or after the
effective date denying requests to revise a decision by the agency of
original jurisdiction based on clear and unmistakable error (CUE). Such
requests are not ``claims'' subject to Public Law 115-55, because the
requester is not pursuing a claim for benefits pursuant to part II or
III of Title 38 of the U.S. Code. Livesay v. Principi, 15 Vet. App.
165, 178-179 (2001). Nevertheless, VA will, as a matter of discretion,
allow the requestor to elect review of such decisions in the higher-
level review lane in addition to the option to appeal to the Board. A
supplemental claim may not be filed with respect to a CUE request since
revision of a decision for CUE cannot be based on new evidence.
The proposed regulation also recognizes, in subsection (c), that
some claimants who received a notice of decision prior to the effective
date, defined as legacy claimants, may have
[[Page 39824]]
opted-in to the new review system prior to the effective date and that
some may do so after the effective date. Prior to the effective date,
some claimants are able to opt-in to the new review system under a VA
test program known as the Rapid Appeals Modernization Program (RAMP),
which is being carried out pursuant to section 4(a) of Public Law 115-
55. Qualifying claimants can choose either the higher-level review lane
or the supplemental claim lane to pursue review of their claims. Those
claimants who opt-in under RAMP have received, or will receive, a
notice of decision conforming with the enhanced decision notice
requirements of Public Law 115-55 and advising the claimant regarding
the review options available under the new system. Upon the effective
date, those claims will continue to be processed under the new
framework as implemented by final regulations.
Proposed subsection (c) provides, in accordance with section
2(x)(5) of Public Law 115-55, that, after the effective date, legacy
claimants may opt-in to the new review system after VA issues a
Statement of the Case or Supplemental Statement of the Case. Claimants
may do so by filing for one of the review options under the new system
on a form prescribed by VA within the time allowed to file a
substantive appeal to the Board under the legacy appeals system. A
claimant may not elect to pursue review under both the legacy and
modernized review systems with respect to a particular claim.
Sec. 3.2500 Review of Decisions
In the legacy appeals process, claimants who are dissatisfied with
the initial decision on their claim are given only one avenue to seek
review of that decision. Public Law 115-55 created a new claims and
appeals process with several different review options for pursuing VA
benefits. Congress added 38 U.S.C. 5104C to provide claimants with
streamlined choices within the agency of original jurisdiction and
through an appeal to the Board. VA proposes to add Sec. 3.2500 to part
3, subpart D, to implement the new review options and set forth the
rules that apply to those options under new 38 U.S.C. 5104C. In line
with the statutory requirements, VA proposes to allow a claimant to
file for one of the three review options upon receipt of a decision by
the agency of original jurisdiction on an initial claim. Under proposed
Sec. 3.2500(b), a claimant would be able to elect a different review
option for each different issue adjudicated in the decision. The term
``issue'' is defined in Sec. 3.151(c) as a distinct determination of
entitlement to a benefit, such as a determination of entitlement to
service-connected disability compensation for a particular disability.
Proposed Sec. 3.2500(b) provides that a claimant may not elect to
have the same issue reviewed concurrently under different review
options, consistent with new 38 U.S.C. 5104C(a)(2)(A). Proposed Sec.
3.2500(d) implements new 38 U.S.C. 5104C(a)(2), providing that
claimants may switch between the different review options. A claimant
or the claimant's duly appointed representative may, for example,
withdraw a request for higher-level review or a supplemental claim at
any time prior to VA issuing notice of decision. If the withdrawal
takes place within the one year period following notice of the decision
being reviewed, a claimant may timely elect another review option to
continuously pursue the claim and preserve potential entitlement to
benefits effective as of the date of the initial claim.
Under new 38 U.S.C. 5104C, after receiving notice of a decision on
an issue, claimants generally have up to one year to submit new and
relevant evidence with a supplemental claim, request a higher-level
review, or file an appeal to the Board to preserve the effective date
associated with their initial claim. If a claimant remains dissatisfied
with the decision on review, depending on the type of review requested,
he or she would still have the option to file another review request.
The review options available to a claimant after a decision on each
type of review are set forth in Sec. 3.2500(c). Paragraph (g) contains
effective date protections for continuously pursued claims and the
effective date rule for supplemental claims filed more than one year
after notice of a decision (i.e., where the underlying claim is finally
adjudicated). For example, a claimant who receives an unfavorable
decision on a higher-level review request may submit a supplemental
claim with new and relevant evidence or appeal to the Board within one
year of the decision notice date to protect the effective date. If,
following a further denial, the claimant elects to file a supplemental
claim with new and relevant evidence within one year of the decision
notice date and VA grants the benefit sought, VA will consider this to
be a continuously pursued claim and continue to base the effective date
of an award on the filing date of the initial claim.
VA proposes to include a paragraph in Sec. 3.2500 that limits the
review option available to parties to a simultaneously contested claim
(contested claim) to the filing of a Notice of Disagreement with the
Board. A contested claim is defined in VA regulations as a situation in
which the allowance of one claim results in the disallowance of another
claim involving the same benefit or the payment of a lesser benefit to
another claimant. 38 CFR 20.3(p). For example, two people may claim
entitlement to the same benefit, such as in the situation where two
people claim entitlement to a death benefit as the surviving spouse.
In this situation, Congress has provided for different adjudication
rules aimed at speeding resolution of the dispute. Prior to Public Law
115-55, the statutory time frame to appeal a decision by the agency of
original jurisdiction in such cases was 60 days rather than the normal
one year period. 38 U.S.C. 7105A. This required review to be initiated
for all contested claims within 60 days and clearly reflected an intent
that contested claims be resolved more quickly than ordinary claims.
In Public Law 115-55, Congress maintained the 60 day time period
for filing a Notice of Disagreement to appeal a decision of the agency
of original jurisdiction, but did not address how contested claims
should be handled with respect to the newly available review lanes at
the agency of original jurisdiction, for which the filing deadline is
one year. This is problematic for the following reasons: (1) While the
new system provides claimants with the right to select from three
different review lanes, it is literally impossible to provide this
right to each claimant in a contested claim, because the claimants'
choice of review lanes may conflict (we note that both claimants may
disagree with a particular determination in a contested claim, such as
the amount of an apportionment under Sec. 3.450); (2) while the new
system protects favorable findings from being overturned in the absence
of clear and convincing evidence to the contrary, a finding may be
favorable to one claimant but unfavorable to the other, thus making it
literally impossible to afford each claimant this right; (3) the review
period for choosing the Board review lane (through filing a Notice of
Disagreement) would be 60 days for a contested claim, but the review
period for choosing higher-lever review or filing a supplemental claim
would be one year, thereby significantly undermining the impact of the
60 day time period for filing a Notice of Disagreement on achieving a
faster resolution of the claim. As a result, it appears that Congress
either did not envision that contested claims would be
[[Page 39825]]
governed by the three-lane review system or simply neglected to address
this issue, leaving a gap for VA to fill. See, e.g., Ramsey v.
Nicholson, 20 Vet.App. 16, 30 (2006) (refusing to literally apply the
statutory requirement that appeals at the Board be considered and
decided in docket order because, despite the arguably plain meaning of
the statute, literal application would produce an absurd result, or at
least a result at odds with the intention of the drafters, ``when
considering the statute's overall structure and concepts relating to
effective review of appeals'').
VA proposes to fill the gap left by the statute by limiting the
review option available to a contested claimant to filing a Notice of
Disagreement with the Board within 60 days of issuance of the decision
of the agency of original jurisdiction. Simultaneously contested claims
thus would be excepted from the general one year review period in Sec.
3.2500. VA believes that this is a reasonable way to effectuate
congressional intent that the review process for a contested claim be
designed to achieve faster resolution of the claim. It also reduces the
opportunity for one claimant to prevent the payment of benefits to
another claimant by delaying action on filing for review of a decision
favorable to the other claimant or by filing successive supplemental
claims based on marginally relevant evidence. If either claimant
discovers new evidence, the claimant may, under the new system, file
such evidence in connection with an appeal to the Board. In addition,
under the new system, initial decisions by the agency of original
jurisdiction are required to contain more detailed information
regarding the basis of the decision, reducing the need for further
decisions by the agency of original jurisdiction to provide more
information.
Sec. 3.2501 Supplemental Claims
VA proposes to add a new section to part 3, subpart D, to explain
the rules that govern the supplemental claim review option required by
38 U.S.C. 5108 as amended by Public Law 115-55. Claimants may request
review of VA's decision by submitting a supplemental claim after a
decision by the VBA, the Board, or the Court of Appeals for Veterans
Claims. Public Law 115-55 amended 38 US.C. 5108(a) to prescribe that VA
will re-adjudicate a claim when new and relevant evidence is presented
or secured with respect to a supplemental claim. VA proposes to include
in Sec. 3.2501 the requirement that new and relevant evidence must
accompany a supplemental claim or be submitted or secured while a
supplemental claim is pending for VA to take action on the evidence and
readjudicate the claim.
VA proposes to include a requirement that a claimant file a
supplemental claim on a form prescribed by the Secretary and that the
duty to assist in gathering new and relevant evidence will be triggered
upon the filing of a substantially complete application. As provided in
proposed amendments to Sec. 3.159(a)(3) and Sec. 3.160(a), a
substantially complete or complete supplemental claim application must
identify or include potentially new evidence. An incomplete claim will
be considered filed on the date of receipt if the complete application
is filed within a year, consistent with Sec. 3.155. The new statutory
framework provides one year for submission of a request for review
under any of the three new lanes. Consistent with this requirement, the
intent to file provisions of Sec. 3.155(b) would not apply to
supplemental claims. This new section will also address the evidentiary
record for supplemental claims, consistent with proposed Sec.
3.151(d).
Sec. 3.2502 Returns by Higher-Level Adjudicator or Remand by the Board
of Veterans' Appeals
VA proposes to add Sec. 3.2502 to part 3, subpart D, to implement
the requirement in new 38 U.S.C. 5109B for expedited processing of
claims returned from a higher-level adjudicator and remands from the
Board. Upon receipt of a returned claim or remand by the Board, the
agency of original jurisdiction will take immediate action to expedite
readjudication of the claim in accordance with new 38 U.S.C. 5109B. The
agency of original jurisdiction will retain jurisdiction of the claim.
In readjudicating the claim, the adjudication activity will correct all
identified duty to assist errors, complete a new decision and issue
notice to the claimant and or his or her legal representative in
accordance with Sec. 3.103(f). For all issues readjudicated, the
effective date of any evaluation and award of pension, compensation, or
dependency and indemnity compensation will be determined in accordance
with the date of receipt of the initial claim as prescribed under
proposed Sec. 3.2500(g).
Sec. 3.2600 Legacy Review of Benefit Claims Decisions
Current Sec. 3.2600 governs certain aspects of review under the
legacy system, for claims in which a Notice of Disagreement is filed on
or after June 1, 2001. VA proposes to amend Sec. 3.2600 to make clear
that this section only applies to legacy claims as defined in Sec.
3.2400 and not to claims that are processed under the new review
system. VA plans to implement the new claims and appeals system on
February 14, 2019. Claimants who receive decisions prior to the
effective date of the new system will have the option to file an appeal
under the legacy process, in which case Sec. 3.2600 will apply. In
general, the agency of original jurisdiction will stop accepting
Notices of Disagreement for legacy claims one year after the effective
date of the final rule implementing the new claims and appeals system,
subject to extension of the filing period for good cause in individual
cases.
Sec. 3.2601 Higher-Level Review
VA proposes to add a new section to part 3, subpart D, to implement
the rules that govern the higher-level review option required by 38
U.S.C. 5104B. This new section explains the requirements for electing a
higher-level review, describes the type of agency of original
jurisdiction employees who will conduct the review, and addresses the
review process.
Under 38 U.S.C. 5104B, a claimant in the modernized review system
may request a higher-level review of a decision on a claim by the
agency of original jurisdiction during the one year period to seek
review following issuance of the notice of decision. The higher-level
review option gives claimants a second look at their claims, but that
review is based solely on the same evidence that was before the initial
adjudicator. The higher-level review is conducted by a different
experienced VA employee with the ability to change the initial decision
based on difference of opinion authority, subject to the rule that
favorable findings are binding absent clear and convincing evidence to
the contrary. The higher-level review provides the opportunity for
resolution of the issue(s) in dispute at the agency of original
jurisdiction without having to file an appeal to the Board, or having
to submit a supplemental claim with new and relevant evidence.
The higher-level review consists of a closed evidentiary record and
does not allow for the submission of new evidence or a hearing. While
the closed evidentiary record does not allow for submission of new
evidence, VA proposes to provide claimants and/or their representatives
with an opportunity to speak with the higher-level adjudicator and
point out any specific errors in the case as part of the higher-level
review. VA has utilized an informal conference as part of the
[[Page 39826]]
Decision Review Officer review in the current legacy appeals process.
VA has received positive feedback on providing claimants and/or their
representatives an opportunity to speak directly with the decisionmaker
for the claim. To further support this level of engagement, VA proposes
to include the availability of an informal conference with a higher-
level adjudicator in the new Sec. 3.2601. The sole purpose of an
informal conference is to provide a claimant or his or her
representative with an opportunity to talk with the higher-level
adjudicator so that the claimant and/or his or her representative can
identify errors of fact or law in the prior decision. To comply with
the statutory requirement of a closed evidentiary record, VA would not
allow claimants or representatives to supplement the evidentiary record
during the informal conference through the submission of new evidence
or introduction of facts not present at the time of the prior decision.
VA proposes to make efforts to contact a claimant or his or her
representative, when requested, telephonically and to honor all
requests for informal conferences unless determined not feasible in an
individual case, such as when VA, after reasonable efforts, is unable
to make contact with the claimant or his or her representative.
VA proposes to include a paragraph that explains the requirement
for expedited processing of all identified duty to assist errors. VA
has a statutory duty to assist claimants in gathering evidence in
support of a claim for benefits. Under 38 U.S.C. 5103A(f), if the
higher-level adjudicator discovers a duty to assist error, the claim
returns to the adjudication activity for correction unless the higher-
level adjudicator determines that it would be appropriate for VA to
grant the maximum benefit for the claim. In accordance with 38 U.S.C.
5109B, VA proposes to include a rule requiring expedited processing to
correct these types of errors and to define ``maximum benefit'' for
disability compensation as the maximum scheduler evaluation for the
issue, and for other types of benefits, the granting of the benefit
sought.
Because the filing date of a request for higher-level review is
relevant to maintaining the effective date of any award, VA proposes to
include provisions for determining the filing date that are similar to
the provisions in Sec. 3.155 that apply to applications for benefits.
Part 8--National Service Life Insurance
To comply with Public Law 115-55, VA proposes to amend 38 CFR 8.30
to allow applicants for insurance coverage and/or claimants for
insurance proceeds (both hereafter referred to as claimants) who
disagree with (1) denials of applications for insurance, total
disability income provision, or reinstatement; (2) disallowances of
claims for insurance benefits; and/or (3) decisions holding fraud or
imposing forfeiture to receive either a higher-level review,
supplemental claim review, or Board review.
VA has consolidated all life insurance activity at a single office
located in Philadelphia, PA. This office has original jurisdiction over
all life insurance applications and claims for proceeds received in
conjunction with life insurance programs administered by VA. Because
insurance expertise and processing is consolidated at the Philadelphia
office, higher level reviews and supplemental claims will be processed
by employees at the Philadelphia office. Selection of an employee to
conduct a higher-level review is at VA's discretion. The VA Insurance
Service will assign higher-level reviews to employees who are
experienced decision-makers who did not participate in the prior
decision. The VA Insurance activity would make reasonable efforts to
honor requests for informal conferences as part of a higher-level
review, consistent with proposed 3.2601(h). As noted in proposed Sec.
3.2601(h), claimants are responsible for any costs they incur in
conjunction with an informal conference. This proposed rule would not
limit the option of pursuing actions under 38 U.S.C. 1984.
Part 14--Legal Services, General Counsel, and Miscellaneous Claims
Under 38 U.S.C. chapter 59, the Secretary of Veterans Affairs has
authority to recognize VSOs and their representatives as well as
attorneys and agents for the preparation, presentation, and prosecution
of benefit claims, prescribe the rules of conduct applicable while
providing claims assistance, and regulate fees charged by accredited
attorneys and agents.
VA proposes to make several revisions to the regulations contained
in part 14, Title 38 of the Code of Federal Regulations, regarding:
Accreditation of attorneys, agents, and VSO representatives;
representation of claimants before VA; and fees charged by attorneys
and agents for representation. The proposed revisions will address the
recent changes in law enacted by Public Law 115-55, address a few
discrepancies relating to the appellate process in the current
regulations, and further clarify the rules.
While Public Law 115-55 sets out ``to reform the rights and
processes relating to appeals of decisions regarding claims for
benefits under the laws administered by the Secretary of Veterans
Affairs,'' the accreditation and fee regulations contained in part 14
are focused exclusively on accreditation of attorneys, agents, and VSO
representatives; representation of claimants before VA; and fees
charged by attorneys and agents for representation. Although VA
recognizes that certain changes to part 14 are needed to reflect the
new law, which changes the starting point at which fees for
representation may be charged and changes in the appellate structure
for deciding benefit claims, VA does not believe that the provisions of
the appeals reform law prescribing processes for ``claims for
benefits'' directly apply to adjudications of VA accreditation and
attorney/agent fee matters. See 38 U.S.C. 5904; 38 CFR 14.626-14.637.
Section 14.629--Requirements for Accreditation of Service Organization
Representatives; Agents; and Attorneys
Current Sec. 14.629 contains an introductory paragraph describing
the process within the Office of General Counsel for evaluating whether
an applicant for accreditation meets the qualifications for becoming
accredited by VA and for appealing decisions denying accreditation. VA
proposes to move that paragraph from the beginning of 14.629 to a new
paragraph, proposed paragraph (d), to improve the readability of the
section.
In addition, VA proposes to modify the substance of the current
introductory paragraph when relocating it in paragraph (d) to state
that a denial of accreditation by the Chief Counsel is a final
adjudicative determination of an agency of original jurisdiction that
may only be appealed to the Board. The provision currently states that
decisions denying accreditation may be appealed to the General Counsel
and denials by the General Counsel are ultimately appealable to the
district courts under the Administrative Procedures Act (APA). This
provision reflects VA's prior position that a decision denying
accreditation is not a ``decision by the Secretary under a law that
affects the provision of benefits by the Secretary to veterans or the
dependents or survivors of veterans,'' 38 U.S.C. 511(a), and,
therefore, is not appealable under the system enacted by the Veterans
Judicial Review Act (VJRA). See 38 U.S.C. 7104(a). While recognizing
that the United States Court of Appeals for the Federal Circuit
(Federal Circuit) had
[[Page 39827]]
concluded that decisions suspending or cancelling accreditation are
appealable under the VJRA, VA had previously distinguished decisions
denying accreditation. Accreditation of Agents and Attorneys; Agent and
Attorney Fees, 73 FR 29852, 29853-54 (May 22, 2008).
However, upon further reflection in light of decisions by the
Federal Circuit and other Federal courts broadly construing the VJRA's
exclusive jurisdictional scheme, VA now concludes that decisions
denying accreditation also fall within the scope of that exclusive
review scheme. This conclusion ensures consistency with respect to the
applicable law and other decisions relating to accreditation, and thus
comports with a central purpose of the VJRA's exclusive review scheme,
i.e., to promote a uniform body of jurisprudence on matters related to
VA benefits. Therefore, proposed Sec. 14.629(d)(2)(ii) would shift the
authority to issue the decision on appeal from the General Counsel to
the Board.
The basis for permitting an appeal to the Board is grounded in 38
U.S.C. 511, which applies to decisions ``under a law that affects the
provision of benefits by [VA] to veterans or the dependents or
survivors of veterans.'' 38 U.S.C. 511(a). The Federal Circuit has
construed section 511 to extend beyond matters relating to claims for
benefits, including to accreditation-related decisions. Cox v. West,
149 F.3d 1360, 1365 (Fed. Cir. 1998) (That ``the decision of the
regional office did not affect a veteran's benefits is not the point.
The relevant issue under section 511(a) is whether the decision
necessarily interpreted a law that affects veterans' benefits.''); see
also Bates v. Nicholson, 398 F.3d 1355, 1359-61 (Fed. Cir. 2005). But
the Federal Circuit has also held that simply because a decision is
appealable to the Board does not mean the decision is subject to all
the same statutory procedures applicable to claims for veterans
benefits. See DAV v. Gober, 234 F.3d 682, 694-95 (Fed. Cir. 2000)
(demonstrating that certain appealable matters are not governed by all
of the same provisions that apply to regular claims for veterans
benefits).
Notably, in Public Law 115-55, Congress specifically identified
``decisions regarding claims for benefits,'' and did not include all
decisions that are appealable to the Board, as being subject to the new
appellate system. The provisions of Public Law 115-55 pertaining to the
``supplemental claim'' and ``higher-level review'' options specify that
they apply to ``claims for benefits'' and to ``claimants,'' which is
defined in 38 U.S.C. 5100 to refer to a person applying for a
``benefit'' under laws administered by VA. Id., Sec. 2(a) (defining
``supplemental claim'' as ``a claim for benefits . . .''), Sec. 2(g)
and (h) (authorizing a ``claimant'' to elect higher-level review or
submit a supplemental claim following a decision). VA does not view
decisions to grant, deny, or otherwise affect accreditation status to
be decisions ``regarding claims for benefits'' within the meaning of
Public Law 115-55. VA's interpretation of the statute is consistent
with the Federal Circuit's interpretation that the statutory provision
governing removal of accreditation is not itself a law affecting
benefits. Bates, 398 F.3d at 1360 (``The argument that 38 U.S.C.
5904(b) is itself a `law that affects the provision of benefits' is
unpersuasive.''). Accordingly, VA concludes that Public Law 115-55 does
not require that the full range of modernized review procedures
available for benefit decisions be extended to decisions regarding
accreditation of representatives.
Moreover, revising the current adjudication process for
accreditation matters simply to mirror the choice and flexibility
required under Public Law 115-55 for benefits claims is unwarranted.
Public Law 115-55 is designed to allow claimants for benefits to switch
between the lanes of review, while still having an option to submit new
evidence regarding their claims, all while preserving potential
entitlement to benefits retroactive to the date of the benefits claim
as long as the matter is pursued continuously. See Public Law 115-55,
Sec. Sec. 2(h)(1), (2)(l). In contrast, decisions on accreditation
matters are effective on the date of the decision; therefore, the
adjudication of these matters does not implicate the same issues as for
claims for benefits regarding preservation of effective dates. Although
flexibility and choice are key objectives of the new statutory
framework with regard to claims for benefits, the paramount concern for
matters regarding accreditation is ensuring that claimants for benefits
have competent representation. Therefore, we propose that denials of
accreditation will only be appealable to the Board.
Consistent with the proposal in new paragraph (d) to have the Chief
Counsel make the final decision on an accreditation determination, VA
proposes to transfer from the General Counsel level to the Chief
Counsel level the authority under Sec. 14.629(b)(5) to grant or
reinstate accreditation for an individual who remains suspended in a
jurisdiction on grounds solely derivative of suspension or disbarment
in another jurisdiction to which he or she has been subsequently
reinstated.
Section 14.631--Powers of Attorney; Disclosure of Claimant Information
In current Sec. 14.631(c), the regulation refers to 38 CFR 20.608.
However, VA proposes to change that to 38 CFR 20.6 to reflect the
revisions being proposed by the Board in this rulemaking.
Section 14.632--Standards of Conduct for Persons Providing
Representation Before the Department
In current Sec. 14.632, the regulation lists standards of conduct
by which accredited attorneys, agents, and representatives must abide
in preparing, presenting, and prosecuting VA benefit claims. VA
proposes to revise current 14.632(c)(6) to eliminate the specific
reference to the Notice of Disagreement and to clarify that gifts from
a VA claimant to a VA-accredited individual are not permitted in any
situation when a fee could not be lawfully charged. VA proposes to
change the word ``representation'' to ``services,'' in order to be
clear that this provision applies to all aspects of claims preparation,
presentation, and prosecution.
Section 14.633--Termination of Accreditation or Authority To Provide
Representation Under Sec. 14.630
VA proposes changes to current Sec. 14.633(e)(2) to clarify that
when the Chief Counsel closes the record with regard to a suspension or
cancellation of accreditation, that this is the record before the
Office of the General Counsel. The rationale for this change is to
clarify procedures for closure of the record in suspending or
cancelling an individual's accreditation to ensure that the regulation
does not contradict changes under the modernized system. Under existing
law, the record is closed prior to the General Counsel's decision and
on appeal to the Board, no expansion of the record is permitted unless
a Board hearing is requested. Under the modernized system, evidence may
be submitted for the Board to consider in the first instance with or
without a hearing request. VA proposes this change twice in Sec.
14.633(e)(2) in order to maintain consistency.
VA also proposes new language in Sec. 14.633(h)(1) and (2) to
clarify the procedures for decisions issued before the effective date
of the modernized review system and on or after that date. In addition,
in proposed Sec. 14.633(h)(1), VA proposes replacing the reference to
38 CFR 19.9 with 38 CFR 20.904, to reflect the redesignation in the
Board's proposed regulations.
[[Page 39828]]
VA further proposes moving the second sentence in 14.633(h) to a
new subsection 14.633(j) and adding ``suspension'' to clarify that the
General Counsel can in fact provide notice of both suspensions and
cancellations of accreditation. The overall move is intended to provide
clarity, as the paragraph in which this is currently located otherwise
addresses appellate rights. The proposed addition fills in a gap in the
existing regulations. In the preamble to the May 2007 proposed rule on
Part 14, VA stated that the General Counsel could notify all agencies,
courts, and bars to which the agent or attorney is admitted to practice
of suspensions or cancellations, 72 FR 25930, 25933 (May 7, 2007), but,
in the regulation text, VA only specified cancellation. Id. at 25940;
see also 73 FR at 29875 (final rule text).
As discussed above with denials of accreditation, it is neither
required nor prudent to provide all the same options and safeguards
that apply to the new appellate system under Public Law 115-55 to
decisions regarding the suspension or cancellation of accreditation.
Section 14.636--Payment of Fees for Representation by Agents and
Attorneys in Proceedings Before Agencies of Original Jurisdiction and
Before the Board of Veterans' Appeals
Currently, 38 U.S.C. 5904(c)(1) directs that agents and attorneys
may be paid for services provided after a Notice of Disagreement is
filed in a case. This is also reflected in current 38 CFR 14.636(c). VA
proposes language in Sec. 14.636(c)(1)(i) to implement the change in
section 2(n) of Public Law 115-55 that fees may be charged by an
accredited agent or attorney upon VA's issuance of notice of an initial
decision on a claim. In the same subsection of Sec. 14.636, VA
proposes additional language, based on the effective date provisions in
section 2(l) of Public Law 115-55, to clarify the relationship between
section 2(n) of Public Law 115-55 and the new adjudication procedures.
Specifically, this clarifies whether a decision on a supplemental claim
is considered a new initial decision, or whether it is part of the
original adjudication string based on the effective date. The language
VA proposes makes clear that a decision by an agency of original
jurisdiction adjudicating a supplemental claim will be considered an
initial decision on a claim unless the decision is made while the
claimant continuously pursued the claim by choosing one of the three
procedural options available under Public Law 115-55.
In addition, VA proposes to add Sec. 14.636(c)(1)(ii), to clarify
the effective dates emanating from Public Law 115-55 for attorney fee
matters based on clear and unmistakable error. The language in proposed
Sec. 14.636(c)(1)(ii) mirrors the already existing regulatory text at
current Sec. 14.636(c)(1).
Next, proposed Sec. 14.636(c)(2)(i) contains minor language edits
to accommodate for the implementation of the Public Law 115-55. Note
that, although not specified in the proposed modified subsection, a
Notice of Disagreement which has been withdrawn to opt in to the
appeals modernization program will still satisfy the Notice of
Disagreement requirement under paragraph (c)(2).
Proposed Sec. 14.636(i)(3) contains language to clarify that when
the Chief Counsel closes the record in proceedings to review fee
agreements, this is the record before the Office of the General
Counsel. VA proposes this minor change in both Sec. 14.636(i)(3) and
(k) in order to maintain consistency. VA proposes to remove the
instruction for filing a Notice of Disagreement with the Office of the
General Counsel because, although that is correct under the legacy
system, under the modernized appeals system the Notice of Disagreement
should be filed directly with the Board. The Office of General Counsel
form with the appellate rights will specify where the Notice of
Disagreement should be filed. In addition, proposed Sec. 14.636(k)
contains language similar to that in proposed Sec. 14.633(h), for the
reasons stated in those sections above, to clarify the procedures for
decisions issued before the effective date of the modernized review
system, and on or after that date, the date that Public Law 115-55 is
scheduled to take effect. As required by Public Law 115-55, VA proposes
to replace the term ``reopened'' with ``readjudicated'' in several
places in the proposed Sec. 14.636.
Finally, because fee matters are simultaneously contested matters
they are processed under the appellate procedures applicable to
simultaneously contested claims. See Mason v. Shinseki, 743 F.3d 1370,
1374 (2014) (holding that disputes regarding eligibility for attorney's
fees withheld from past-due disability benefits are subject to the
appeal deadlines for simultaneously contested claims). As explained
elsewhere in this rulemaking, the additional options provided under
Public Law 115-55 are not appropriate to simultaneously contested
matters.
Moreover, it is clear that decisions on fee matters differ from
decisions on claims for VA benefits because they ultimately concern
whether the terms of the private contract should be altered for public
policy reasons. See Scates v. Principi, 282 F.3d 1362, 1366-66 (finding
that a contingency percentage agreed upon in a fee contract contains an
``implicit . . . understanding'' that the representative may not be
entitled to the full percentage if the claimant terminates the
representative's services during the case). Compare Public Law 115-55,
2(h)(1) (providing for three options for review), with 38 U.S.C.
5904(c)(3) (specifying that a fee reasonableness decision may be
reviewed by the Board pursuant to section 7104 to determine whether it
is excessive or unreasonable); and 38 U.S.C. 7263(d) (explaining that
the Court of Appeals for Veterans Claim's decision with regard to the
reasonableness of the fee is a final determination that may not be
reviewed by any other court).
Section 14.637--Payment of the Expenses of Agents and Attorneys in
Proceedings Before Agencies of Original Jurisdiction and Before the
Board of Veterans' Appeals
Proposed Sec. 14.637(d)(3) contains language to clarify that when
the Chief Counsel closes the record in proceedings to review fee
agreements, this is the record before the Office of the General
Counsel. Also, in proposed Sec. 14.637(f), language similar to that in
proposed Sec. Sec. 14.633(h) and 14.636(k) is proposed to comply with
Public Law 115-55 and for the reasons stated with respect to those
sections above. In addition, in Sec. 14.637(d)(3), VA proposes to
remove the instruction for filing a Notice of Disagreement with the
Office of the General Counsel for the same reasons as stated in Sec.
14.636(i)(3).
Part 19--Board of Veterans' Appeals: Appeals Regulations
VA proposes to restructure and revise 38 CFR part 19. As noted,
Public Law 115-55 applies to all claims for which notice of decision
was provided on or after the effective date and to certain claims where
a notice of decision was provided prior to that date, but the appellant
opted to subject the claim to the new system. While Public Law 115-55
is primarily aimed at creating a new claims and appeals adjudication
system, VA must also provide timely and quality decisions on legacy
appeals. A legacy appeal is any appeal where the agency of original
jurisdiction provided notice of a decision prior to the effective date
and the appellant has not opted to have review of his or her appeal
completed in the new system. When the new system becomes effective, VA
will have approximately 500,000 pending
[[Page 39829]]
legacy appeals, and many of these legacy appellants will still be at a
stage in their appeals where regulations concerning filing forms,
motions, or other actions will be relevant. Thus, VA proposes to
preserve and consolidate regulations concerning legacy appeals.
This proposed rule would make part 19 applicable only to legacy
appeals; specifically, the processing of legacy appeals by the agency
of original jurisdiction. Subparts F, G, and J of part 20 would apply
only to the processing and adjudication of legacy appeals by the Board.
Except as otherwise provided in specific sections, subparts A, B, H, K,
L, M, N, and O of part 20 would apply to the processing and
adjudication of both appeals in the new system and legacy appeals.
Subparts C, D, E, and I of part 20 would apply only to the processing
and adjudication of appeals in the new system.
VA proposes to revise the authority citations for individual
sections in part 19 and for certain sections in part 20 applicable only
to legacy appeals to identify the versions of statutes existing prior
to the effective date of the modernized appeals system, as those
statutes will continue to apply to legacy appeals.
Finally, VA proposes minor updates to addresses. This minor change
is not substantive. Currently, provisions containing the Board's
address for mail related to appeals direct that mail should be
addressed to a particular office within the Board. In practice, all
mail is processed in a central location at the Board and routed to the
appropriate office internally. Therefore, VA proposes to strike all
references to specific offices or personnel at the Board in references
to the Board's address.
The following distribution table shows where each section of
current part 19 is proposed to be moved.
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
19.1...................................... 20.100.
19.2...................................... 20.101.
19.3...................................... 20.106.
19.4...................................... 20.103.
19.5...................................... 20.105.
19.7...................................... 20.903; similar in 20.802.
19.8...................................... 20.905; similar in 20.804.
19.9...................................... 20.904; similar in 20.803.
19.11..................................... 20.1004.
19.12..................................... 20.107.
19.13..................................... 20.108.
19.14..................................... 20.109.
19.27..................................... Removed.
19.33..................................... Removed.
19.50..................................... Removed.
19.51..................................... Removed.
19.52..................................... Removed.
19.53..................................... Removed.
19.75..................................... 20.603.
19.76..................................... 20.602.
------------------------------------------------------------------------
Subpart A--Applicability
VA proposes to amend subpart A--Operation of the Board of Veterans'
Appeals, by moving all sections into part 20. Generally applicable
provisions are proposed to be moved into subpart B of part 20, while
provisions applicable to adjudication of legacy appeals are proposed to
be moved to subpart J of part 20.
VA proposes to add new provisions to subpart A of part 19 that
explain the applicability of part 19.
Sec. 19.1 Provisions Applicable to Legacy Appeals
New Sec. 19.1 is proposed to help claimants understand which
appeals system applies to their claim, and to provide specific
instructions for legacy claimants to locate the regulations applicable
to their appeal.
Sec. 19.2 Appellant's Election for Review of a Legacy Appeal in the
Modernized System
New Sec. 19.2 is proposed to explain options that may be available
for legacy claimants to have their claim or appeal considered in the
new system. This includes electing the modernized review system
pursuant to 38 CFR 3.2400(c)(1), following issuance of a Statement of
the Case or Supplemental Statement of the Case on or after the
effective date, or pursuant to any test program implemented by the
Board.
Subpart B--Legacy Appeals Processing by Agency of Original Jurisdiction
VA proposes to restructure subpart B of part 19 in order to
consolidate procedures relating to legacy appeal processing by the
agency of original jurisdiction. Subpart C of part 20 deals with
commencement and perfection of appeals. As these procedures require
action by the agency of original jurisdiction rather than the Board,
and are only applicable to appeals in the legacy system, VA proposes to
move these provisions to subpart B of part 19.
Sec. 19.20 What Constitutes an Appeal
VA proposes to redesignate Sec. 20.200 as Sec. 19.20, and update
citations.
Sec. 19.21 Notice of Disagreement
VA proposes to redesignate Sec. 20.201 as Sec. 19.21, and update
citations.
Sec. 19.22 Substantive Appeal
VA proposes to redesignate Sec. 20.202 as Sec. 19.22, and update
citations.
Sec. 19.23 Applicability of Provisions Concerning Notice of
Disagreement
VA proposes to update the citations in Sec. 19.23.
Sec. 19.24 Action by Agency of Original Jurisdiction on Notice of
Disagreement Required To Be Filed on a Standardized Form
VA proposes to update the citations in Sec. 19.24.
Sec. 19.25 Notification by Agency of Original Jurisdiction of Right To
Appeal
VA does not propose any changes to Sec. 19.25.
Sec. 19.26 Action by Agency of Original Jurisdiction on Notice of
Disagreement
VA does not propose any changes to Sec. 19.26.
Sec. 19.27 [Reserved]
Section 2, paragraph (s) of Public Law 115-55 repeals procedures
for administrative appeals by striking section 7106 of title 38 of the
United States Code. Therefore, VA proposes to remove Sec. 19.27,
relating to administrative appeals.
Sec. 19.28 Determination That a Notice of Disagreement Is Inadequate
Protested by Claimant or Representative
VA does not propose any changes to Sec. 19.28.
Sec. 19.29 Statement of the Case
VA does not propose any changes to Sec. 19.29.
Sec. 19.30 Furnishing the Statement of the Case and Instructions for
Filing a Substantive Appeal
Section 2, paragraph (x)(5) of Public Law 115-55 provides that a
legacy appellant may elect to subject his or her appeal to the new
system upon receipt of a Statement of the Case (SOC) or Supplemental
Statement of the Case (SSOC). Therefore, VA proposes to amend Sec.
19.30 by requiring that all SOCs contain information on how to opt into
the new system.
Sec. 19.31 Supplemental Statement of the Case
VA proposes to amend Sec. 19.31 by requiring that all SSOCs
contain information on how to opt into the new system.
Sec. 19.32 Closing of Appeal for Failure To Respond to Statement of
the Case
VA does not propose any changes to Sec. 19.32.
Sec. 19.33 [Reserved]
Section 2, paragraph (s) of Public Law 115-55 repeals procedures
for
[[Page 39830]]
administrative appeals by striking section 7106 of title 38 of the
United States Code. Therefore, VA proposes to remove Sec. 19.33,
relating to administrative appeals.
Sec. 19.34 Determination that Notice of Disagreement or Substantive
Appeal Was Not Timely Filed Protested by Claimant or Representative
VA does not propose any changes to Sec. 19.34.
Sec. 19.35 Certification of Appeals
Currently, certification to the Board may only be accomplished by
completion of a VA Form 8. This requirement creates cumbersome
administrative and technological processes which often delay
certification of appeals, but do not serve Veterans in any way.
Therefore, VA proposes to amend Sec. 19.35 to eliminate the
requirement for a Form 8, and will accomplish certification through
other means.
Sec. 19.36 Notification of Certification of Appeal and Transfer of
Appellate Record
VA proposes to update the citations in Sec. 19.36.
Sec. 19.37 Consideration of Additional Evidence Received by the Agency
of Original Jurisdiction After an Appeal Has Been Initiated
VA does not propose any changes to Sec. 19.37.
Sec. 19.38 Action by Agency of Original Jurisdiction When Remand
Received
VA proposes to update the citations in Sec. 19.38.
Subpart C--Claimant Action in a Legacy Appeal
As noted, section 2, paragraph (s) of Public Law 115-55 repeals
procedures for administrative appeals by striking section 7106 of title
38 of the United States Code. As this amendment is applicable to all
appeals, VA proposes to remove subpart C of part 19, dealing with
administrative appeals.
VA proposes to restructure subpart C of part 19 in order to
consolidate procedures relating to commencement and filing of legacy
appeals. Subpart D of part 20 deals with commencement and filing of
appeals, including procedures for Statements of the Case. As these
procedures require action by the agency of original jurisdiction rather
than the Board, and are only applicable to appeals in the legacy
system, VA proposes to move these provisions to subpart C of part 19.
Sec. 19.50 Who Can File an Appeal
VA proposes to redesignate Sec. 20.301 as Sec. 19.50.
Sec. 19.51 Place of Filing Notice of Disagreement and Substantive
Appeal
VA proposes to redesignate Sec. 20.300 as Sec. 19.51.
Sec. 19.52 Time Limit for Filing Notice of Disagreement, Substantive
Appeal, and Response to Supplemental Statement of the Case
VA proposes to redesignate Sec. 20.302 as Sec. 19.52.
Sec. 19.53 Extension of Time for Filing Substantive Appeal and
Response to Supplemental Statement of the Case
VA proposes to redesignate Sec. 20.303 as Sec. 19.53.
Sec. 19.54 Filing Additional Evidence Does Not Extend Time Limit for
Appeal
VA proposes to redesignate Sec. 20.304 as Sec. 19.54.
Sec. 19.55 Withdrawal of Appeal
VA proposes to redesignate Sec. 20.204 as Sec. 19.55, add an
address update, and add an internal reference.
Subpart D--[Reserved]
VA proposes to remove and reserve the two provisions of subpart D,
dealing with field hearings. These provisions will be incorporated into
subpart G of part 20, in order to streamline regulations concerning
Board hearing procedures.
Subpart E--Simultaneously Contested Claims
VA does not propose any substantive changes to the procedures for
simultaneously contested legacy claims, consisting of Sec. Sec.
19.100-19.102.
Appendix A to Part 19--Cross-References
VA proposes to remove Appendix A to part 19, as it has outlived its
usefulness. Cross-references currently located in the table are
outdated or incorrect. Whereas a user may have previously used the
appendix to search for other sections pertinent to a particular
regulation, such research may be accomplished much more efficiently via
a search of the electronic document.
Part 20--Board of Veterans' Appeals: Rules of Practice
As noted, VA proposes to restructure subparts A and B of part 20 by
adding generally applicable provisions from part 19 and new provisions
explaining applicability and new definitions. The following
distribution table shows where each section of current part 20 is
proposed to be moved.
------------------------------------------------------------------------
Old section New section
------------------------------------------------------------------------
20.100.................................... 20.102.
20.101.................................... 20.104.
20.102.................................... 20.110.
20.200.................................... 19.20; similar in 20.201.
20.201.................................... 19.21; similar in 20.202.
20.202.................................... 19.22.
20.204.................................... 19.55; similar in 20.205.
20.300.................................... 19.51; similar in 20.203.
20.301.................................... 19.50; similar in 20.204.
20.302.................................... 19.52; similar in 20.203.
20.303.................................... 19.53.
20.304.................................... 19.54.
20.305.................................... 20.110.
20.306.................................... 20.111.
20.400.................................... Removed.
20.401.................................... Removed.
20.500.................................... 20.501.
20.501.................................... 20.502.
20.502.................................... 20.503.
20.503.................................... 20.504.
20.504.................................... 20.505.
20.600.................................... 20.5.
20.608.................................... 20.6.
20.702.................................... 20.704; similar in 20.603.
20.703.................................... 20.602.
20.704.................................... 20.603.
20.705.................................... 20.601; similar in 20.702.
20.706.................................... 20.705.
20.707.................................... 20.604; similar in 20.706.
20.708.................................... 20.707.
20.709.................................... 20.605.
20.710.................................... 20.708.
20.711.................................... 20.709.
20.712.................................... 20.710.
20.713.................................... 20.711.
20.714.................................... 20.712.
20.715.................................... 20.713.
20.716.................................... 20.714.
20.717.................................... 20.715.
20.800.................................... 20.901.
20.900.................................... 20.902; similar in 20.801.
20.901.................................... 20.906; similar in 20.805.
20.902.................................... 20.907.
20.903.................................... 20.908.
20.904.................................... 20.1000.
20.1000................................... 20.1001.
20.1001................................... 20.1002.
20.1003................................... 20.1003.
20.1502................................... Removed.
20.1504................................... Removed.
20.1505................................... Removed.
20.1506................................... Removed.
20.1507................................... Removed.
20.1508................................... Removed.
20.1509................................... Removed.
------------------------------------------------------------------------
Subpart A--General
Sec. 20.1 Rule 1. Purpose and Construction of Rules of Practice
VA proposes a minor edit to Sec. 20.1, to provide the common name
for the Board of Veterans' Appeals.
Sec. 20.2 Rule 2. Procedure in Absence of Specific Rule of Practice
VA proposes no changes.
[[Page 39831]]
Sec. 20.3 Rule 3. Definitions
VA proposes minor edits to Sec. 20.3 Definitions, to remove terms
that are no longer used in part 20, or are defined elsewhere in the
part. VA also proposes to adopt the definition of ``claim'' used in
part 3 of this title.
Sec. 20.4 Rule 4. Appeal Systems Definitions and Applicability
Provisions
VA proposes to add new Sec. 20.4, appeal systems definitions and
applicability provisions, to provide definitions and an explanation of
the applicability of the new system. Proposed Sec. 20.4 assists
appellants in understanding which system applies to their appeal. It
provides specific instructions for appellants to locate the regulations
applicable to their appeal, and explains options that may be available
for legacy claimants to take advantage of the new system.
Sec. 20.5 Rule 5. Right to Representation
VA proposes to redesignate Sec. 20.600 as Sec. 20.5.
Sec. 20.6 Rule 6. Withdrawal of Services by a Representative
VA proposes to redesignate Sec. 20.608 as Sec. 20.6, and make
minor changes to reflect the different procedures for withdrawal of
representatives in legacy appeals and appeals in the new system.
Specifically, current Sec. 20.608 draws a distinction between
withdrawal of services by a representative prior to certification to
the Board, and withdrawal after certification. In the new appeals
system, Notices of Disagreement are filed directly to the Board, and
thus the certification process will not be applicable to new appeals.
Proposed Sec. 20.6 clarifies that the rules governing withdrawal of
representation after certification apply to both appeals in the legacy
system that have been certified, and all appeals in the new system. The
rules governing withdrawal of representation prior to certification
apply only to legacy appeals that have not yet been certified.
Subpart B--The Board
Sec. 20.100 Rule 100. Establishment of the Board
VA proposes to redesignate Sec. 19.1 as Sec. 20.100.
Sec. 20.101 Rule 101. Composition of the Board; Titles
VA proposes to redesignate Sec. 19.2 as Sec. 20.101.
Sec. 20.102 Rule 102. Name, Business Hours, and Mailing Address of the
Board
VA proposes to redesignate Sec. 20.100 as Sec. 20.102 and update
the mailing address.
Sec. 20.103 Rule 103. Principal Functions of the Board
VA proposes to redesignate Sec. 19.4 as Sec. 20.103.
Sec. 20.104 Rule 104. Jurisdiction of the Board
VA proposes to redesignate Sec. 20.101 as Sec. 20.104, and make
minor changes. Specifically, VA proposes to reverse paragraphs (c) and
(d) to condense information applicable only to legacy appeals. VA also
proposes to redesignate Sec. 19.5 as Sec. 20.105. This move would
make the third sentence of Sec. 20.104(a) redundant. Thus, VA proposes
to remove that sentence from Sec. 20.104, and incorporate it with
Sec. 20.105. Citations are also updated.
Sec. 20.105 Rule 105. Criteria Governing Disposition of Appeals
As noted above, VA proposes to redesignate Sec. 19.5 as Sec.
20.105 and clarify that the criteria governing the disposition of
appeals also applies to decisions of the Board. Proposed Sec. 20.105
includes the rules governing precedent opinions of the General Counsel
of the Department of Veterans Affairs which are currently duplicated in
Sec. 20.104(a) and Sec. 19.5. This nonsubstantive change reduces
redundant paragraphs and simplifies the rule.
Sec. 20.106 Rule 106. Assignment of Proceedings
VA proposes to redesignate Sec. 19.3 as Sec. 20.106.
Sec. 20.107 Rule 107. Disqualification of Members
VA proposes to redesignate Sec. 19.12 as Sec. 20.107 and remove
paragraph (b), dealing with administrative appeals.
Sec. 20.108 Rule 108. Delegation of Authority to Chairman and Vice
Chairman, Board of Veterans' Appeals
VA proposes to redesignate Sec. 19.13 as Sec. 20.108.
Sec. 20.109 Rule 109. Delegation of Authority to Vice Chairman, Deputy
Vice Chairman, or Members of the Board
VA proposes to combine current Sec. 19.14 with Sec. 20.102 and
redesignate the section as Sec. 20.109, and update citations. This
nonsubstantive change reduces redundant paragraphs and simplifies the
rule.
Sec. 20.110 Rule 110. Computation of Time Limit for Filing
VA proposes to redesignate Sec. 20.305 as Sec. 20.110.
Sec. 20.111 Rule 111. Legal Holidays
VA proposes to redesignate Sec. 20.306 as Sec. 20.111 and update
the citations.
Subpart C--Commencement and Filing of Appeals
VA proposes to add a new subpart C, applicable only to appeals in
the new system. Provisions in current subpart C applicable to legacy
appeals would be redesignated and moved to part 19 as described
elsewhere in this document. Proposed subpart C contains provisions
dealing with the filing of a Notice of Disagreement. Although Public
Law 115-55 makes some changes to Notice of Disagreement filing
procedures, many of these procedures will remain the same; therefore,
the proposed regulations contained in subpart C are similar to the
Notice of Disagreement regulations currently in place.
Sec. 20.200 Rule 200. Notification by Agency of Original Jurisdiction
of Right To Appeal
VA proposes to add new Sec. 20.200, similar to current Sec.
19.25.
Sec. 20.201 Rule 201. What Constitutes an Appeal
VA proposes to add new Sec. 20.201, similar to current Sec.
20.200. The amendments made to 38 U.S.C. 7105 direct that an appeal to
the Board is accomplished by filing a Notice of Disagreement directly
to the Board. Therefore, proposed Sec. 20.201 reflects this change in
procedure.
Sec. 20.202 Rule 202. Notice of Disagreement
VA proposes to add new Sec. 20.202, similar to current Sec.
20.201. Public Law 115-55 requires that appellants indicate on their
Notice of Disagreement the specific determination with which they
disagree, and whether they request a Board hearing (which includes the
opportunity to submit additional evidence within 90 days following the
Board hearing), an opportunity to submit additional evidence within 90
days following submission of the Notice of Disagreement, or direct
review of the evidence that was before the agency of original
jurisdiction by the Board. Thus, paragraphs (a) and (b) of proposed
Sec. 20.202 reflect these changes to the information that must be
indicated on the Notice of Disagreement.
[[Page 39832]]
Public Law 115-55 requires that VA create a policy allowing
appellants to change the information indicated on the Notice of
Disagreement, meaning that an appellant may request to change the
evidentiary record before the Board. In crafting this policy, VA sought
to provide appellants with an opportunity to change their initial
election if their circumstances or preference changed. However, VA also
wanted to prevent an appellant from unfairly gaining the advantage of
two dockets. For example, an appellant should not be permitted to take
advantage of the faster direct review docket if he or she has already
submitted evidence or testified at a Board hearing.
Additionally, VA sought to limit the time period in which
appellants may request to modify the Notice of Disagreement. VA has
established a 365-day timeliness goal for appeals in the direct review
docket. VA also intends to provide wait time predictions for the
evidence and hearing dockets. If appellants are able to modify their
Notices of Disagreement, and thereby change dockets at any time prior
to the Board's decision on the issue or issues, VA will not be able to
provide accurate wait time information. This would diminish the ability
of other Veterans to make informed choices as to which of the Board's
dockets best suits their individual needs.
Proposed Sec. 20.202(c)(1) provides that the appellant's election
of an evidentiary record on the Notice of Disagreement determines the
docket on which the appeal is placed, and that the Board will not
consider additional evidence or schedule a hearing unless the appellant
indicated one of those options on the Notice of Disagreement. Paragraph
(c)(2) provides that an appellant may modify the Notice of Disagreement
for the purpose of selecting a different evidentiary record option. The
request to modify must be made within one year of the agency of
original jurisdiction decision on appeal, or 30 days after the Notice
of Disagreement is received by the Board, whichever is later. The
request will be denied if the appellant has already submitted evidence
or testimony.
Additionally, nothing in the regulations prevent an appellant from
filing multiple Notices of Disagreement within the one-year period.
Therefore, if an appellant wants to add additional issues not initially
included on the Notice of Disagreement, the appellant is free to submit
an additional Notice of Disagreement identifying these issues, as long
as this additional Notice of Disagreement is timely submitted.
Paragraphs (f) and (g) of proposed Sec. 20.202 provide procedures
for how the Board will handle unclear or deficient Notices of
Disagreement. The new framework shifts jurisdiction to the Board for
any question as to the adequacy of Notices of Disagreement. Veterans
Law Judges will retain their discretion to interpret some unclear
statements on Notices of Disagreements in the light most favorable to
the Veteran. However, proposed paragraphs (f) and (g) are necessary to
outline the procedures the Board will take when an inadequate Notice of
Disagreement is received at the Board. Specifically, the proposed rule
addresses the problem created when the Board receives a Notice of
Disagreement electing more than one evidentiary option, no evidentiary
option, or when it is otherwise unclear how the appeal should be
docketed.
The proposed rule is closely aligned with the process for
clarifying Notices of Disagreement in the legacy appeals system. When
the Board receives an unclear or deficient Notice of Disagreement, the
Board will notify the claimant and request clarification. The claimant
must respond with the requested clarification within one year after the
agency of original jurisdiction decision, or 60 days after the date of
the Board's clarification request, whichever is later. If the claimant
does not provide a timely response, the previous statement from the
claimant will not be considered a Notice of Disagreement.
Paragraph (h) of proposed Sec. 20.202 provides that, when an
unclear Notice of Disagreement is properly clarified, the Notice of
Disagreement will be considered to have been properly filed on the date
of clarification. This means that the docket date will be based upon
the date of the clarification, and if the appellant requests to submit
evidence, the 90-day window for evidence submission will begin on the
date of clarification.
Sec. 20.203 Rule 203. Place and Time of Filing Notice of Disagreement
VA proposes to add new Sec. 20.203, similar to the provisions of
current Sec. Sec. 20.300 and 20.302. Proposed Sec. 20.203 differs
from current Sec. Sec. 20.300 and 20.302 in that Public Law 115-55
requires that Notices of Disagreement are filed with the Board. In
contrast, current Sec. Sec. 20.300 and 20.302 provide that Notices of
Disagreement are filed with the agency of original jurisdiction.
Sec. 20.204 Rule 204. Who Can File a Notice of Disagreement
VA proposes to add new Sec. 20.204, similar to current Sec.
20.301. Proposed Sec. 20.204 differs from current Sec. 20.301 in that
the provisions of Sec. 20.301 also apply to the filing of a
Substantive Appeal. Public Law 115-55 eliminates procedures relating to
Substantive Appeals; therefore, proposed Sec. 20.204 does not discuss
Substantive Appeals.
Sec. 20.205 Rule 205. Withdrawal of Appeal
VA proposes to add new Sec. 20.205, similar to current Sec.
20.204. Proposed Sec. 20.205 differs from the rules for withdrawal of
a legacy appeal in that paragraph (c) of proposed Sec. 20.205 provides
that, in addition to filing a new Notice of Disagreement, a claimant
may request a higher-level review or file a supplemental claim
following the withdrawal of the Notice of Disagreement, provided such
filing would be timely.
Subpart D--Evidentiary Record
VA proposes to add new subpart D, Evidentiary Record, in place of
current subpart D, Filing, which VA proposes to move to part 19. New
subpart D is proposed to implement 38 U.S.C. 7113, a new section added
by Public Law 115-55 to establish the evidentiary record before the
Board. The evidentiary record before the Board is determined by the
appellant's election on his or her Notice of Disagreement. The
appellant's election will determine whether the Board considers (1)
only the evidence that was of record at the time of the prior agency of
original jurisdiction decision; (2) the evidence that was of record
before at the time of the prior agency of original jurisdiction
decision and any additional evidence submitted within 90 days of
submission of the Notice of Disagreement; or (3) the evidence that was
of record at the time of the prior agency of original jurisdiction
decision and any evidence submitting during, or within 90 days
thereafter, the Board hearing.
Sec. 20.300 Rule 300. General
Proposed Sec. 20.300 provides that decisions of the Board will be
based on a de novo review of the evidence, as provided in Sec. 20.801.
Sec. 20.301 Rule 301. Appeals With No Request for a Board Hearing and
No Additional Evidence
Proposed Sec. 20.301 provides that, for appeals with no request to
appear at a hearing or submit additional evidence, the Board will
consider only the evidence that was before the agency of original
jurisdiction in the decision on appeal.
[[Page 39833]]
Sec. 20.302 Rule 302. Appeals With a Request for a Board Hearing
Proposed Sec. 20.302 provides that, for appeals with a request for
a Board hearing, the Board will consider the evidence that was before
the agency of original jurisdiction in the decision on appeal,
testimony presented at a Board hearing, and any additional evidence
submitted within 90 days of the Board hearing.
Public Law 115-55 does not describe the evidentiary record in the
event that a hearing request is withdrawn or the appellant does not
appear for a scheduled hearing. Thus, the Board proposes paragraphs (b)
and (c) of Sec. 20.302 to specify that appellants who requested a
hearing on the Notice of Disagreement, but ultimately do not appear for
a hearing will retain the opportunity to submit additional evidence
within a 90-day window.
Sec. 20.303 Rule 303. Appeals With No Request for a Board Hearing, But
With a Request for Submission of Additional Evidence
Proposed Sec. 20.303 provides that, for appeals with no request
for a Board hearing, but with a request to submit additional evidence,
the Board will consider the evidence that was before the agency of
original jurisdiction in the decision on appeal, and any additional
evidence submitted with the Notice of Disagreement or within 90 days
following receipt of the Notice of Disagreement. As noted above, when
an appellant requests to modify the Notice of Disagreement for the
purpose of requesting an opportunity to submit additional evidence, the
Board will notify the appellant whether the request has been granted,
and if so, that the appeal has been moved to the docket for appeals
described in this section. The 90-day window for submission of
additional evidence will begin on the date of such notice.
Public Law 115-55 requires that VA create at least two new
dockets--a docket for appeals with a request for a Board hearing and a
docket for appeals with no request for a Board hearing--but affords VA
discretion to create additional dockets. VA proposes to establish three
dockets for appeals adjudicated under the modernized appeals system.
The first docket is for Veterans who do not want a hearing and do not
wish to submit additional evidence, as provided by proposed Sec.
20.301. The second docket is for Veterans who wish to have a hearing,
as provided by proposed Sec. 20.302. Finally, the third docket is for
Veterans who wish to submit additional evidence, but do not want a
hearing before a Veterans Law Judge.
Creation of these three separate dockets has multiple benefits.
Most importantly, this docket structure provides greater opportunity
for Veterans to tailor their appeals experience to best suit their
individual needs. The first docket, described in proposed Sec. 20.301,
captures quality feedback from appeals in which no additional evidence
is added to the record. This allows VA to identify areas in which the
claims process can be improved and will allow VA to develop targeted
training. Allowing additional evidence submission for appeals in the
docket described in proposed Sec. 20.301 would break this quality
feedback loop. Veterans with a strong preference to appear at a Board
hearing before a Veterans Law Judge may choose the docket described in
proposed Sec. 20.302.
The docket described in proposed Sec. 20.303 allows Veterans to
submit additional evidence that may assist in establishing entitlement
to benefits, without the wait time that is associated with Board
hearings. Public Law 115-55 does not permit appeals with no request for
a hearing to be placed on the same docket as appeals with a request for
a hearing. See Public Law 115-55, section 2(t), amending 38 U.S.C.
7107(a)(3). Therefore, creation of the third docket described in
proposed Sec. 20.303 is necessary to provide Veterans with the option
to submit additional evidence without a hearing.
There is no cost associated with establishing the docket described
in proposed Sec. 20.303. The technological system required to track
and manage appeals at the Board is designed to maintain multiple
dockets in both the legacy and modernized appeals systems, as required
by law. Adding a third docket to process appeals with no request for a
Board hearing, but with a request to submit additional evidence does
not result in any additional cost from an information technology
development perspective. Moreover, there is no additional cost
associated with the adjudication of such appeals, as the Board will
apply the same substantive law regarding entitlement to benefits to all
appeals. There is no additional administrative or adjudicative burden
caused by maintaining a separate docket for evidence submission.
Subpart E--Appeal in Simultaneously Contested Claims
VA proposes to add new subpart E, Appeal in Simultaneously
Contested Claims, in place of current subpart E, Administrative
Appeals, which Public Law 115-55 repeals. Proposed subpart E would
largely mirror subpart F, which VA proposes to make applicable only to
legacy appeals. Subpart E would differ from subpart F insofar as the
procedures for filing an appeal in the new system differ from those in
the legacy system. For example, subpart F continues to describe notice
and filing requirements for formal appeals and Statements of the Case.
As Public Law 115-55 repeals procedures for formal appeals and
Statements of the Case, subpart E does not have provisions related to
these procedures. As discussed above, under the proposed new framework,
simultaneously contested claims may only be appealed to the Board.
Additionally, proposed subpart E addresses the circumstances--unique to
the new framework, in which contesting parties request different
evidentiary options.
Sec. 20.400 Rule 400. Notification of the Right To Appeal in a
Simultaneously Contested Claim
Proposed Sec. 20.401, similar to current Sec. 19.100, describes
the notification procedures when the agency of original jurisdiction
takes an action in a simultaneously contested claim.
Sec. 20.401 Rule 401. Who Can File an Appeal in Simultaneously
Contested Claims
Proposed Sec. 20.401, similar to current Sec. 20.500, describes
who can file an appeal in simultaneously contested claims.
Sec. 20.402 Rule 402. Time Limits for Filing Notice of Disagreement in
Simultaneously Contested Claims
Proposed Sec. 20.402, similar to current Sec. 20.501, describes
the time limits for filing a Notice of Disagreement in a simultaneously
contested claim.
Sec. 20.403 Rule 403. Notice to Contesting Parties on Receipt of
Notice of Disagreement in Simultaneously Contested Claims
Proposed Sec. 20.403, similar to current Sec. 20.502, also
specifies that the notice to contesting parties upon receipt of a
Notice of Disagreement must indicate the type of review requested by
the appellant who initially filed the Notice of Disagreement, including
whether a hearing was requested.
Sec. 20.404 Rule 404. Time Limit for Response to Appeal by Another
Contesting Party in a Simultaneously Contested Claim
Proposed Sec. 20.404 provides that a party to a simultaneously
contested claim may file a brief, argument, or
[[Page 39834]]
request for a different type of review under Sec. 20.202(b) in answer
to a Notice of Disagreement filed by another contesting party.
Sec. 20.405 Rule 405. Docketing of Simultaneously Contested Claims at
the Board
Proposed Sec. 20.405 resolves any conflict between two parties who
request different evidentiary options under Sec. 20.202(b). The
proposed rule provides that, if any party requests a hearing before the
Board, the appeal will be placed on the hearing docket and a hearing
will be scheduled. If neither party requests a hearing, but any party
requests an opportunity to submit additional evidence, the appeal will
be placed on the evidence docket. VA will notify both parties when an
appeal is placed on any docket. If the appeal is placed on the evidence
docket, the parties will have 90 days from the date of such notice in
which to submit additional evidence.
Sec. 20.406 Rule 406. Notices Sent to Last Addresses of Record in
Simultaneously Contested Claims
Proposed Sec. 20.406, similar to current Sec. 20.504, describes
the procedures for sending notice to parties in contested claims.
Sec. 20.407 Rule 407. Favorable Findings Are Not Binding in Contested
Claims
The favorable finding rule is impossible to apply in the context of
contested claims, because a particular factual finding might be
favorable to one appellant but unfavorable to another. Because the
application of this rule in the context of simultaneously contested
claims would produce absurd results, proposed Sec. 20.407 clearly
provides that favorable findings are not binding in the context of
simultaneously contested appeals.
Subpart F--Legacy Appeal in Simultaneously Contested Claims
VA proposes to add new ``Sec. 20.500 Rule 500. Applicability.'' in
order to better inform appellants as to which subpart is applicable to
their appeal. Aside from renumbering to accommodate the new
applicability section and necessary citation updates, VA does not
propose additional changes to subpart F.
Subpart G--Legacy Hearings on Appeal
As noted above, VA proposes to redesignate Sec. 20.600 and Sec.
20.608, dealing with representation, to subpart B, as these provisions
are generally applicable to both appeals systems. Proposed new subpart
G would contain special provisions for hearings in legacy appeals,
while amendments to subpart H are proposed to make that subpart
applicable to hearings on appeals in both systems.
Amendments to hearing regulations for legacy and new system appeals
are necessary in light of the Jeff Miller and Richard Blumenthal
Veterans Health Care and Benefits Improvement Act of 2016, Public Law
114-315. In relevant part, Public Law 114-315, by amending 38 U.S.C.
7107, establishes the Board's authority, upon request for a hearing, to
determine what type of hearing it will provide an appellant, while
affording the appellant the opportunity to request an alternative type
of hearing once the Board makes its initial determination. Notably,
field hearings will only be available in the legacy system. Therefore,
provisions applicable to field hearings, currently contained in subpart
D of part 19, and subpart H of part 20, are proposed to be moved into
subpart G.
Sec. 20.600 Rule 600. Applicability
VA proposes new Sec. 20.600 to assist appellants in determining
the hearing regulations applicable to their appeal.
Sec. 20.601 Rule 601. Methods by Which Hearings in Legacy Appeals Are
Conducted; Scheduling and Notice Provisions for Such Hearings
VA proposes to redesignate Sec. 20.705 as Sec. 20.601, and amend
to reflect the procedures applicable only to legacy appeals. Proposed
Sec. 20.601 would clarify that a hearing before the Board may be
conducted via an in-person hearing held at the Board's principal
location in Washington, DC, via electronic means, or at a Department of
Veterans Affairs facility having adequate physical resources and
personnel for the support of such hearings. Further, proposed Sec.
20.601 informs the reader that procedures for scheduling and providing
notice of Board hearings in legacy appeals conducted at the Board's
principal location or via electronic means are contained in Sec.
20.704, while procedures for scheduling and providing notice of Board
hearings in legacy appeals conducted at field facilities are contained
in Sec. 20.603.
Sec. 20.602 Rule 602. When a Hearing Before the Board of Veterans'
Appeals May Be Requested in a Legacy Appeal; Procedure for Requesting a
Change in Method of Hearing
VA proposes to retitle, revise, and expand Sec. 20.703,
redesignated as Sec. 20.602, to clarify when and how legacy appellants
may request hearings before the Board. These revisions implement the
changes to 38 U.S.C. 7107 that require the Board to determine the
method of a hearing and notify the appellant of its decision. As noted,
although the Board will now be making the initial determinations
regarding the method by which hearings will be conducted, appellants'
rights to request a different type of hearing are preserved. Also, the
Board alone will provide notification of the method and scheduling of
hearings.
Sec. 20.603 Rule 603. Scheduling and Notice of Hearings Conducted by
the Board of Veterans' Appeals at Department of Veterans Affairs Field
Facilities in a Legacy Appeal
VA proposes to combine Sec. 19.75 and Sec. 20.704, and to
redesignate as Sec. 20.603. Proposed Sec. 20.603 will clarify the
procedures for the scheduling of hearings at VA field facilities. Field
hearings for legacy appeals are scheduled in relationship to the need
for the entire docket. Field hearing requests for legacy appeals are
now handled by the Board alone and timing for requests is clarified.
Citations and address are updated.
Sec. 20.604 Rule 604. Designation of Member or Members To Conduct the
Hearing in a Legacy Appeal
VA proposes to redesignate Sec. 20.707 as Sec. 20.604, and amend
the section to differentiate the procedures for legacy appeals.
Citations are also updated.
Sec. 20.605 Rule 605. Procurement of Additional Evidence Following a
Hearing in a Legacy Appeal
VA proposes to redesignate Sec. 20.709 as Sec. 20.605, and amend
the section title to reflect that the provision is only applicable to
legacy appeals. As notice, the evidentiary record in the new system is
governed by subpart D.
Subpart H--Hearings on Appeal
No changes are proposed to Sec. 20.701.
Sec. 20.700 Rule 700. General
VA proposes to amend Sec. 20.700 by removing outdated procedures
for representatives to present oral arguments on an audio cassette. It
is the Board's practice to accept written arguments from a
representative in the form of informal hearing presentations.
Additionally, the presiding member may accept oral argument from a
representative. This amendment will not disrupt those practices.
VA also proposes to remove paragraph (e), regarding electronic
hearings, as these procedures are described in Sec. 20.702(b).
[[Page 39835]]
Sec. 20.702 Rule 702. Methods by Which Hearings Are Conducted
VA proposes new Sec. 20.702, describing the types of hearings
available to appellants in the new system. Similar to current Sec.
20.705 (proposed here to be redesignated as Sec. 20.601), this section
will provide appellants and other readers with a clear understanding of
the different methods by which Board hearings are conducted. Proposed
Sec. 20.702 would clarify that a hearing before the Board may be
conducted via electronic means or via an in-person hearing held at the
Board's principal location in Washington, DC.
Sec. 20.703 Rule 703. When a Hearing Before the Board of Veterans'
Appeals May Be Requested; Procedure for Requesting a Change in Method
of Hearing
VA proposes new Sec. 20.703 to clarify when and how appellants may
request hearings before the Board. These revisions implement the
changes to 38 U.S.C. 7107 that require the Board to determine the
method of a hearing and notify the appellant of its decision. As noted,
although the Board will now be making the initial determinations
regarding the method by which hearings will be conducted, appellants'
rights to request a different type of hearing are preserved.
Sec. 20.704 Rule 704. Scheduling and Notice of Hearings Conducted by
the Board of Veterans' Appeals
VA proposes to redesignate Sec. 20.702 as Sec. 20.704, and amend
to reflect scheduling and notice procedures applicable to appeals in
the new system, similar to Sec. 20.603, applicable only to hearings in
the legacy system.
Sec. 20.705 Rule 705. Functions of the Presiding Member
VA proposes to redesignate Sec. 20.706 as Sec. 20.705, and amend
the section to provide a more comprehensive list of functions of the
presiding Member conducting the Board hearing.
Sec. 20.706 Rule 706. Designation of Member or Members To Conduct the
Hearing
VA proposes to add new Sec. 20.706 to differentiate the procedures
for appeals in the new system, similar to proposed Sec. 20.604,
applicable to legacy appeals.
Sec. 20.707 Rule 707. Prehearing Conference
Currently, Sec. 20.708 requires different procedures for
requesting a prehearing conference, depending on the method of hearing.
It is the Board's practice not to require formal requests for
prehearing conferences. VA proposes to eliminate regulations describing
procedures that are confusing and burdensome for appellants, and
instead provide a streamlined approach that is in line with current
practices. Thus, VA proposes to redesignate Sec. 20.708 as Sec.
20.707 and amend the section.
Sec. 20.708 Rule 708. Witnesses at Hearings
VA proposes to redesignate Sec. 20.710 as Sec. 20.708.
Sec. 2.709 Rule 709. Subpoenas
VA proposes to redesignate Sec. 20.711 as Sec. 20.709. Addresses
are updated.
Sec. 20.710 Rule 710. Expenses of Appellants, Representatives, and
Witnesses Incident to Hearings Not Reimbursable by the Government
VA proposes to redesignate Sec. 20.712 as Sec. 20.710.
Sec. 20.711 Rule 711. Hearings in Simultaneously Contested Claims
As noted above, VA proposes to streamline the timelines for
requesting a change in hearing date. For simultaneously contested
claims, however, it is necessary to provide time limits in order to
preserve the rights of all appellants. Therefore, VA proposes to
redesignate Sec. 20.713 as Sec. 20.711 and amend the section by
clarifying the procedures for hearings in simultaneously contested
claims, in particular hearing date change requests.
Sec. 20.712 Rule 712. Record of Hearing
VA proposes to redesignate Sec. 20.714 as Sec. 20.712 and amend
the section to reflect current practices. Current Sec. 20.714 contains
lengthy and confusing rules dictating when a hearing transcript is
prepared. However, it is the Board's practice to create hearing
transcripts for all appeals, and to provide a copy of a transcript when
requested.
Sec. 20.713 Rule 713. Recording of Hearing by Appellant or
Representative
VA proposes to redesignate Sec. 20.715 as Sec. 20.713 and amend
the section to streamline the process for an appellant or
representative to record a hearing with his or her own equipment.
Currently, different procedures are applicable depending on where the
hearing was held.
Sec. 20.714 Rule 714. Correction of Hearing Transcripts
VA proposes to redesignate Sec. 20.716 as Sec. 20.714 and amend
the section to remove outdated references to tape recordings, and
streamline the process for requesting correction of hearing
transcripts. Currently, different procedures are applicable depending
on where the hearing was held. The address is also updated.
Sec. 20.715 Rule 715. Loss of Hearing Recordings or Transcripts--
Motion for New Hearing
Current Sec. 20.717 contemplates the loss or partial loss of a
hearing recording or transcript, and requires that the appellant file a
motion for a new hearing if desired, specifying why prejudice would
result from the failure to provide a new hearing. It has been VA's
practice to waive this motion requirement in the event that the Board
discovers a loss of recordings or transcripts of hearings. VA proposes
to redesignate Sec. 20.717 as Sec. 20.715 and amend the section to
reflect the current, more appellant-friendly practice. Revised Sec.
20.715 would require the Board to notify the appellant and his or her
representative when such loss has occurred, and provide the appellant a
choice of appearing at a new Board hearing, or having the Board proceed
to appellate review of the appeal based on the evidence of record.
Subpart I--Appeals Processing
VA proposes to add new subpart I, Appeals Processing. Currently,
subpart I contains only one section, which VA proposes to move into
subpart J. New subpart I would describe processing of appeals in the
new system at the Board.
Sec. 20.800 Rule 800. Order of Consideration of Appeals
VA proposes to add new Sec. 20.800, to describe the docketing of
appeals. While this new section is similar to current Sec. 20.900, it
follows Public Law 115-55's direction in creating separate dockets, and
docketing appeals in the order in which they are received on their
respective dockets.
Public Law 115-55 requires that VA create at least two new
dockets--a docket for appeals with a request for a Board hearing, and a
docket for appeals with no request for a Board hearing--but affords VA
discretion to create additional dockets. VA proposes to establish three
dockets to handle appeals adjudicated under the new system. The
``direct'' docket will be for Veterans who do not want a hearing and do
not wish to submit additional evidence. The ``evidence'' docket will be
for Veterans who wish to submit additional evidence, but do not want a
Board hearing. Finally, the ``hearing'' docket will be for Veterans who
wish to have a hearing before a Veterans Law Judge. Creation of these
three separate dockets will have multiple benefits.
[[Page 39836]]
Most importantly, it provides greater opportunity for Veterans to
tailor their appeals experience to best suit their individual needs.
Additionally, the direct docket will capture quality feedback from
appeals in which no additional evidence is added to the record. This
will allow VA to identify areas in which the claims process can be
improved.
Public Law 115-55 requires that VA develop a policy allowing
appellants to move their appeal from one docket to another. As noted,
VA developed a policy allowing appellants to modify the information
identified in the Notice of Disagreement. By requesting a different
evidentiary option under the procedures described above, appellants are
essentially requesting to change dockets as well. When a request to
modify a Notice of Disagreement includes a request to change the
hearing or evidence submission request, the Board will move the appeal
to the appropriate docket, retaining the original docket date.
Proposed Sec. 20.800(e) is added to explain that a case will not
be returned to the Board following the agency of original
jurisdiction's readjudication of an appeal previously remanded by the
Board. Pursuant to amended 38 U.S.C. 5104C, a claimant's options for
further review of the agency of original jurisdiction's decision
include filing a new Notice of Disagreement. Where a new Notice of
Disagreement is filed following readjudication by the agency of
original jurisdiction, the case will be docketed in the order in which
the most recent Notice of Disagreement was received. There is no
statutory provision requiring that a case be returned to the Board
following readjudication by the agency of original jurisdiction or that
the Board provide expeditious treatment when a new appeal is filed
following such readjudication.
Sec. 20.801 Rule 801. The Decision
Proposed Sec. 20.801 describes general rules regarding Board
decisions in the new system, similar to current Sec. 19.7. Proposed
Sec. 20.801 differs from current Sec. 19.7 in that it reflects Public
Law 115-55's provisions regarding the evidentiary record, prior
favorable findings, and notice requirements. As noted, Public Law 115-
55 creates new section 7113 outlining the evidentiary record before the
Board. Proposed Sec. 20.801(a) explains that the Board's decision will
be based on a de novo review of the evidence of record before the
agency of original jurisdiction, as well as any additional evidence
submitted pursuant to section 7113. Additionally, Public Law 115-55
creates a new requirement that VA provide a general statement as to
whether any evidence was received at a time not permitted by section
7113. This statement must also inform the appellant that any such
evidence was not considered by the Board, and explain the options
available to have that evidence reviewed. Thus, Sec. 20.801(b)(3)
reflects this notice requirement. Finally, Public Law 115-55 amends
chapter 51 by adding a new section, 5104A, requiring that any finding
favorable to the claimant will be binding on subsequent adjudicators.
Thus, proposed Sec. 20.801(a) reflects that any findings favorable to
the claimant with regard to the issue or issues on appeal, as
identified by the agency of original jurisdiction, are binding on the
Board's decision, unless rebutted by clear and convincing evidence. In
practice, the Board would rarely disturb such findings prior to
enactment of the Appeals Modernization Act. This regulation is largely
serving to codify a longstanding practice of the Board not to disturb
favorable findings or elements of the claim made by the agency of
original jurisdiction.
Sec. 20.802 Rule 802. Remand for Correction of Error
Proposed Sec. 20.802 describes general rules regarding Board
remands in the new system, similar to current Sec. 19.9. Proposed
Sec. 20.802 differs from current Sec. 19.9 in that it reflects Public
Law 115-55's provisions regarding the duty to assist. Amended section
5103A(e)(2) specifies that the Secretary's duty to assist does not
apply to review on appeal by the Board. Thus, under the amendments made
by Public Law 115-55, the Board may no longer remand an appeal for the
purposes of developing additional evidence. Rather, under amended 38
U.S.C. 5103A(f)(2)(A), the Board shall remand an appeal to correct an
error on the part of the agency of original jurisdiction to satisfy its
duties under section 5103A, if that error occurred prior to the agency
of original jurisdiction decision on appeal. A remand is not required
if the Secretary is able to grant the issue or issues in full. Thus,
proposed Sec. 20.802(a) closely follows the amended statutory
authority in describing the circumstances under which the Board must
remand an appeal.
Amended 38 U.S.C. 5103A(f)(2)(B) further notes that the Board's
remand for correction of a pre-decisional duty to assist error may
include directing the agency of original jurisdiction to obtain an
advisory medical opinion under amended section 5109. Public Law 115-55
adds new paragraph (d)(1) to section 5109, noting that the Board
``shall remand a claim to direct the agency of original jurisdiction to
obtain an advisory medical option from an independent medical expert
under the section if the Board finds that the Veterans Benefits
Administration should have exercised its discretion to obtain such an
opinion.'' Thus, proposed Sec. 20.802(b) closely follows the amended
statutory authority in describing the circumstances under which the
Board must remand an appeal to obtain an advisory medical opinion.
Additionally, the Board may remand for the correction of any other
error by the agency of original jurisdiction in satisfying a regulatory
or statutory duty where there is a reasonable possibility that
correction of the error would aid in substantiating the claim, but need
not remand solely for correction of a procedural defect as this would
be inconsistent with the statutory framework of Public Law 115-55.
Finally, proposed Sec. 20.802(c) reflects that, under Public Law
115-55, the agency of original jurisdiction must correct any error
identified by a Board remand, readjudicate the claim, and provide
notice of the decision, including notice of the claimant's options for
further review. Notably, cases remanded by the Board will not be
automatically returned to the Board after the agency of original
jurisdiction has taken the appropriate action. Instead, a claimant who
remains dissatisfied with an agency of original jurisdiction decision
after adjudication and wants review by the Board must file a new Notice
of Disagreement with the Board as to the issue or issues. Proposed
Sec. 20.802(c) also reflects the amendment to 38 U.S.C. 5109B, which
directs that the agency of original jurisdiction must provide for the
expeditious treatment of any claim that is remanded by the Board.
Sec. 20.803 Rule 803. Content of Board Decision, Remand, or Order in
Simultaneously Contested Claims
Proposed Sec. 20.803 mirrors the language of current Sec. 19.8 in
describing the content of a Board decision, remand, or order in
simultaneously contested claims.
Sec. 20.804 Rule 804. Opinions of the General Counsel
Proposed Sec. 20.804 describes the circumstances under which the
Board will obtain an opinion from the General Counsel, similar to
provisions contained in current Sec. Sec. 20.901-20.903. Proposed
Sec. 20.804 differs from current Sec. 20.901 in that it reflects
Public Law 115-55's provisions repealing the authority for
[[Page 39837]]
independent medical opinions contained in 38 U.S.C. 7109. As noted
above, medical opinions will only be ordered by the Board when a remand
is required to correct a pre-decisional duty to assist error by the
agency of original jurisdiction. Thus, proposed Sec. 20.804 only
contains provisions relating to opinions of the General Counsel.
Subpart J--Action by the Board in Legacy Appeals
VA proposes to amend subpart J to apply only to legacy appeals.
Proposed Sec. 20.900 would explain that the subpart is applicable to
legacy appeals. As noted, VA also proposes to consolidate provisions
related to Board decisions in legacy appeals into subpart J. This
reorganization will clarify the distinction between agency of original
jurisdiction action on appeals, which is proposed to be consolidated
into part 19, and Board action on appeals, which is proposed to be
consolidated to part 20. Thus, VA proposes to move Sec. 19.7,
describing Board decisions, to Sec. 20.903. VA proposes to move Sec.
19.9, describing Board remands, to Sec. 20.904. Finally, VA proposes
to move Sec. 19.8, describing Board decisions in simultaneously
contested claims, to Sec. 20.905. This reorganization will assist
appellants by providing a clear delineation between Board and agency of
original jurisdiction action, and by laying out relevant regulations in
chronological order. VA also proposes to redesignate Sec. 20.800,
regarding submission of additional evidence after the initiation of the
appeal to Sec. 20.901. This provision is only applicable to legacy
appeals, as evidence submission for appeals in the new system is
governed by 7113. Other provisions currently in subpart J would remain
largely unchanged.
Sec. 20.900 Rule 900. Applicability
VA proposes to add new Sec. 20.900, to explain that provisions of
this subpart only apply to legacy appeals.
Sec. 20.901 Submission of Additional Evidence After Initiation of
Appeal
VA proposes to redesignate Sec. 20.800 as Sec. 20.901.
Sec. 20.902 Rule 902. Order of Consideration of Appeals
VA proposes to redesignate Sec. 20.900 as Sec. 20.902 and update
the Board's address.
Sec. 20.903 Rule 903. The Decision
VA proposes to redesignate Sec. 19.7 as Sec. 20.903.
Sec. 20.904 Rule 904. Remand or Referral for Further Action
VA proposes to redesignate Sec. 19.9 as Sec. 20.904 and update
citations.
Sec. 20.905 Rule 905. Content of Board Decision, Remand, or Order in
Simultaneously Contested Claims
VA proposes to redesignate Sec. 19.8 as Sec. 20.905.
Sec. 20.906 Rule 906. Medical Opinions and Opinions of the General
Counsel
VA proposes to redesignate Sec. 20.901 as Sec. 20.906 and update
the current name of the military institution that reviews pathologic
material.
Sec. 20.907 Rule 907. Filing of Requests for the Procurement of
Opinions
VA proposes to redesignate Sec. 20.902 as Sec. 20.907 and update
citations.
Sec. 20.908 Rule 908. Notification of Evidence To Be Considered by the
Board and Opportunity for Response
VA proposes to redesignate Sec. 20.903 as Sec. 20.908 and update
citations.
Subpart K--Vacatur and Reconsideration
Sec. 20.1000 Rule 1000. Vacating a Decision
VA proposes to redesignate Sec. 20.904, regarding vacatur of a
Board decision, to Sec. 20.1000. Current Sec. 20.904 is generally
applicable to both legacy and new system appeals. Moving this provision
into subpart K allows VA to avoid duplicating the provision in subpart
I, for new system appeals. Moreover, vacatur and reconsideration both
describe actions that take place after a Board decision has been
issued. Thus, this move is in line with VA's efforts to reorganize
appeals regulations into a more common-sense, Veteran-centric order. VA
proposes a minor change to proposed 20.1000 to reflect that Statements
of the Case are no longer required in the new system. VA proposes to
reverse paragraphs (a)(2) and (a)(3), and note that failure to provide
a Statement of the Case or Supplemental Statement of the Case is
considered a denial of due process only in legacy appeals.
Sec. 20.1001 Rule 1001. When Reconsideration Is Accorded
VA proposes to redesignate and amend Sec. 20.1000(b), by striking
the words ``and material''. Public Law 115-55 replaces the new and
material standard with a requirement for new and relevant evidence.
Although the new and material standard is still applicable to legacy
appeals, in this context, VA notes that inclusion of the word
``material'' is redundant, as paragraph (b) describes discovery of
``relevant'' service department records. Any relevant service
department records would be considered ``material'' under the legacy
standard. Thus, the proposed change would make the paragraph applicable
to both systems, while retaining the intended result.
Sec. 20.1002 Rule 1002. Filing and Disposition of Motion for
Reconsideration
VA proposed to redesignate Sec. 20.1001 as Sec. 20.1002.
Citations and address are also updated.
Sec. 20.1003 Rule 1003. Hearings on Reconsideration
VA proposes minor changes to Sec. 20.1003, to reflect that a
hearing on reconsideration would only be provided in legacy appeals,
and in new system appeals where the appellant had requested a Board
hearing on the Notice of Disagreement. This change is necessary to
comply with amended section 7107(c), which states that a hearing before
the Board may be scheduled only if a hearing was requested on the
Notice of Disagreement.
Sec. 20.1004 Rule 1004. Reconsideration Panel
VA proposes to redesignate Sec. 19.11 as Sec. 20.1004, and make a
minor change as required by Public Law 115-55. Public Law 115-55 amends
7103(b)(1) by striking the word ``heard'' and replacing it with
``decided''. Thus, VA proposes to make the same change to proposed
Sec. 20.1004, regarding reconsideration panels. This change will have
no substantive impact on legacy appeals.
Subpart L--Finality
No changes are proposed to Sec. Sec. 20.1102, 20.1104, and
20.1106.
Sec. 20.1103 Rule 1103. Finality of Determinations of the Agency of
Original Jurisdiction Where Issue Is Not Appealed
VA proposes to amend Sec. 20.1103, regarding finality of agency of
original jurisdiction decisions, in order to make the rule applicable
to both legacy and new appeals. The proposed rule clarifies that the
agency of original jurisdiction decision may be readjudicated if,
within one year, the claimant files a supplemental claim, request for
higher-level review, or Notice of Disagreement. A citation is also
updated.
[[Page 39838]]
Sec. 20.1105 Rule 1105. Supplemental Claim After Promulgation of
Appellate Decision
VA proposes to amend Sec. 20.1105, regarding a new claim after
promulgation of an appellate decision. In the new system, a claimant
may file a supplemental claim with the agency of original jurisdiction
by submitting new and relevant evidence related to the previously
adjudicated issue. This includes issues in which the final appellate
decision was issued in a legacy appeal, but the new claim was filed on
or after the effective date. In the current system, new and material
evidence is required to reopen a claim after an appellate decision. VA
proposes paragraph (b) to address any legacy appeals pending on the
effective date which are based upon a claim to reopen. The requirement
that an appellant submit new and material evidence to reopen a claim
only applies to legacy appeals that are pending on the effective date.
A citation is also updated.
Subpart M--Privacy Act
No changes are proposed to Sec. 20.1200.
Sec. 20.1201 Rule 1201. Amendment of Appellate Decisions
Citations are updated.
Subpart N--Miscellaneous
No changes are proposed to Sec. 20.1303.
Sec. 20.1301 Rule 1301. Disclosure of Information
VA proposes to amend Sec. 20.1301, regarding the Board's policy to
disclose adjudicative documents to appellants, to reflect the
difference in procedure for legacy and new appeals. As noted,
supplemental Statements of the Case are not required in the new system,
but continue to be a requirement in the legacy system. Thus, VA
proposes to strike references to Statements of the Case in paragraph
(a), and add new paragraph (b) to note that, for legacy appeals, the
policy described in paragraph (a) is also applicable to Statements of
the Case. The address is also updated.
Sec. 20.1302 Rule 1302. Death of Appellant During Pendency of Appeal
Before the Board
Citations and cross-references are updated.
Sec. 20.1304 Rule 1304. Request for a Change in Representation
VA proposes to redesignate Sec. 20.1304 as Sec. 20.1305, and add
new Sec. 20.1304, to delineate the different procedures for appellants
in the legacy and new system to request a change in representation,
personal hearing, or submission of additional evidence. In the new
system, hearings and evidence submission will only be permitted as
described in section 7113. Requests to modify a Notice of Disagreement,
for the purpose of selecting a different option for evidence submission
or hearing request, is governed by Sec. 20.202(c). Thus, proposed
Sec. 20.1304 describes the procedures for requesting a change in
representation only. Requests for changes in representation are
collections of information under the Paperwork Reduction Act, and are
currently approved under OMB Control Number 2900-0085. VA intends to
submit this collection of information under OMB Control Number 2900-
0674 in the future.
Sec. 20.1305 Rule 1305. Procedures for Legacy Appellants To Request a
Change in Representation, Personal Hearing, or Submission of Additional
Evidence Following Certification of an Appeal to the Board of Veterans'
Appeals
VA proposes to amend Sec. 20.1304, redesignated as Sec. 20.1305,
to apply only to legacy appeals. Thus, minor changes are proposed to
reflect that the provisions of Sec. 20.1305 are applicable only to
legacy appeals. The address and citations are also updated.
Subpart O--Revision of Decisions on Grounds of Clear and Unmistakable
Error
VA proposes minor changes to subpart O. Specifically, a reference
to administrative appeals under Sec. 19.51 is struck in Sec.
20.1401(b) since Public Law 115-55 repeals procedures for
administrative appeals by striking section 7106 of title 38 of the
United States Code. VA proposes to clarify that the provisions of
Sec. Sec. 20.1403(b)(2) and 20.1411(b) are only applicable in the
legacy system. Additionally, VA proposes to strike Sec. 20.1405(d), as
section 2, paragraph (v) of Public Law 115-55 repealed the authority
for that provision. Addresses and citations are also updated. No
changes are proposed to Sec. Sec. 20.1400, 20.1402, 20.1406, 20.1407,
and 20.1410.
Subpart P--Expedited Claims Adjudication Initiative--Pilot Program
VA proposes to remove and reserve subpart P, which addresses the
Expedited Claims Adjudication (ECA) Initiative Pilot Program as this
program is no longer in use and will not continue based on changes to
the claims and appeals processes under Public Law 115-55. VA launched
the ECA Initiative Program on February 2, 2009. The two-year pilot
program was designed to accelerate claims and appeals processing.
Participation in the ECA Initiative was strictly voluntary and limited
to claimants who resided within the jurisdiction of the Nashville,
Lincoln, Seattle, or Philadelphia Regional Offices (ROs). VA concluded
the ECA pilot program in 2013. As the program is no longer operational,
VA proposes to remove subpart P.
Appendix A to Part 20--Cross-References
VA proposes to remove Appendix A to part 20, as it has outlived its
usefulness. Cross-references currently located in the table are
outdated or incorrect. Whereas a user may have previously used the
appendix to search for other sections pertinent to a particular
regulation, such research may be accomplished much more efficiently via
a search of the electronic document.
Part 21--Vocational Rehabilitation and Education
Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31
VA proposes to amend part 21 to align current regulations with new
review and appeals processes outlined in Public Law 115-55. To
accomplish this goal, VA proposes to update Subpart A by deleting 38
CFR 21.59 and 21.98; adding one new section, 38 CFR 21.416; amending 38
CFR 21.414 and 21.420; and updating cross references in several
additional regulations (in subparts A and I).
VA's Vocational Rehabilitation and Employment (VR&E) program, under
the authority of title 38 of the United States Code (U.S.C.) Chapter
31, serves an important function: To assist Servicemembers and Veterans
who have service connected disabilities and barriers to employment in
obtaining and maintaining suitable employment and achieving maximum
independence in daily living. There are several points in this process
where program participants may disagree with a decision made by VR&E
field staff regarding benefits and/or services. Although VR&E's current
practices with regard to reviews and appeals are well established in
policy and procedural guidance, current regulations on the review and
appeal processes focus only on three very specific points in the
rehabilitation process (eligibility; entitlement; and the development
of, or change in, the rehabilitation plan). Therefore, VA proposes to
remove those current regulations, 38 CFR 21.59 and 21.98, and add
proposed Sec. 21.416, one new comprehensive regulation that is
[[Page 39839]]
inclusive of reviews and appeals that may occur throughout the entire
rehabilitation process and accords with the new review options provided
in Public Law 115-55.
Proposed Sec. 21.416 will outline who can perform a higher-level
review; provide a process that allows for the submission of new and
relevant evidence; discuss duty to assist errors; outline an informal
conference procedure for the higher-level review process; provide
information on how to proceed on issues surrounding a difference of
opinion; and establish a review time period. The review time period is
an administrative goal, but does not create an enforceable right.
VA also proposes to amend 38 CFR 21.414 and 21.420 to include the
new review options and the new requirements for notification letters
under Public Law 115-55.
Subpart B--Claims and Applications for Educational Assistance
In addition to the proposed amendments to subpart A, VA proposes to
amend subpart B regulations that govern VA's educational assistance
benefits. VA's Education Service handles oversight of VA's education
programs, which provide veterans, servicemembers, reservists, and
certain family members of veterans with educational opportunities post-
separation. To align current educational assistance regulations with
the new review and appeals processes outlined in Public Law 115-55, VA
proposes to revise Sec. 21.1034. VA also proposes to remove the cross
reference in one additional regulation and add Sec. 21.1035 to address
reviews in the legacy appeals process.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires
that VA consider the impact of paperwork and other information
collection burdens imposed on the public. According to the 1995
amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an
agency may not collect or sponsor the collection of information, nor
may it impose an information collection requirement unless it displays
a currently valid Office of Management and Budget (OMB) control number.
This proposed rule includes provisions constituting new collections of
information under the Paperwork Reduction Act of 1995 that require
approval by the OMB. Accordingly, under 44 U.S.C. 3507(d), VA has
submitted a copy of this rulemaking action to OMB for review.
OMB assigns control numbers to collections of information it
approves. VA may not conduct or sponsor, and a person is not required
to respond to, a collection of information unless it displays a
currently valid OMB control number. Proposed 38 CFR 3.160(c), 3.2501,
3.2601, 8.30, 20.202, and 21.1034 contain collections of information
under the Paperwork Reduction Act of 1995. If OMB does not approve the
collections of information as requested, VA will immediately remove the
provisions containing a collection of information or take such other
action as is directed by the OMB.
Comments on the collections of information contained in this
proposed rule should be submitted to the Office of Management and
Budget, Attention: Desk Officer for the Department of Veterans Affairs,
Office of Information and Regulatory Affairs, Washington, DC 20503 or
emailed to [email protected], with copies sent by mail or
hand delivery to the Director, Regulation Policy and Management
(00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room
1063B, Washington, DC 20420; fax to (202) 273-9026; or submitted
through www.Regulations.gov. Comments should indicate that they are
submitted in response to ``RIN 2900-AQ26.''
OMB is required to make a decision concerning the collections of
information contained in this proposed rule between 30 and 60 days
after publication of this document in the Federal Register. Therefore,
a comment to OMB is best assured of having its full effect if OMB
receives it within 30 days of publication. This does not affect the
deadline for the public to comment on the proposed rule.
VA considers comments by the public on proposed collections of
information in--
Evaluating whether the proposed collections of information
are necessary for the proper performance of the functions of the
Department, including whether the information will have practical
utility;
Evaluating the accuracy of the Department's estimate of
the burden of the proposed collections of information, including the
validity of the methodology and assumptions used;
Enhancing the quality, usefulness, and clarity of the
information to be collected; and
Minimizing the burden of the collections of information on
those who are to respond, including through the use of appropriate
automated, electronic, mechanical, or other technological collection
techniques or other forms of information technology, e.g., permitting
electronic submission of responses.
The collections of information contained in 38 CFR 3.160(c),
3.2501, 3.2601, 8.30, 20.202, 21.416, and 21.1034 are described
immediately following this paragraph. VA intends to revise OMB Control
No. 2900-0674 so that it will contain all appeals-related information
collections for the legacy and new systems, including the four claims
and appeals related information collections previously approved under
OMB Control No. 2900-0085. OMB Control No. 2900-0085 will be
discontinued upon approval of the request to renew 2900-0674. As
discussed in the regulatory impact analysis, VA believes that the net
impact of the reorganization of the collections of information is
likely to be deregulatory.
For each of the new or proposed collections of information below,
VBA used general wage data from the Bureau of Labor Statistics (BLS) to
estimate the respondents' costs associated with completing the
information collection. According to the latest available BLS data, the
mean hourly wage of full-time wage and salary workers was $24.34 based
on the BLS wage code--``00-0000 All Occupations.'' This information was
taken from the following website: https://www.bls.gov/oes/current/oes_nat.htm (May 2017).
Title: Veteran's Supplemental Claim Application (VA Form 20-0995).
OMB Control No.: 2900-XXXX (NEW).
CFR Provisions: 38 CFR 3.160(c), 3.2501, 8.30, 21.416, and 21.1034.
Summary of collection of information: VA administers an integrated
program of benefits and services, established by law, for veterans,
service personnel, and their dependents and/or beneficiaries. Title 38
U.S.C. 5101(a) provides that a specific claim in the form provided by
the Secretary must be filed in order for benefits to be paid to any
individual under the laws administered by the Secretary. VA is
proposing a new information collection in this proposed regulatory
action under 38 CFR 3.160(c), 3.2501, 8.30, 21.416, and 21.1034 for
supplemental claims in accordance with Public Law 115-55. Public Law
115-55 includes a new review option for Veterans or claimants who
disagree with a VA claims decision know as a ``supplemental claim''
that is conducted within the agency of original jurisdiction. This
review option is designed to allow submission of new and relevant
evidence in connection with a previously decided claim. The new
collection of information in
[[Page 39840]]
proposed 38 CFR 3.160(c), 3.2501, and 8.30 would require claimants to
submit VA Form 20-0995 in either paper or electronic submission, where
applicable, in order to initiate a supplemental claim for VA disability
compensation benefits. Description of need for information and proposed
use of information: The collection of information is necessary to
determine the issue(s) that a claimant is dissatisfied with and seeks
to initiate a supplemental claim for VA disability compensation
benefits. VA will use this information to initiate or determine the
veteran's eligibility to apply for a supplemental claim in accordance
with Public Law 115-55.
Description of likely respondents: Veterans or claimants who
indicate dissatisfaction with a decision issued by a local VA office
and would like review of new and relevant evidence in support of his or
her claim for disability compensation benefits. VA cannot make further
assumptions about the population of respondents because of the
variability of factors such as the educational background and wage
potential of respondents. Therefore, VBA used general wage data to
estimate the respondents' costs associated with completing the
information collection.
Estimated number of respondents per month/year: 80,000 annually.
Estimated frequency of responses per month/year: One time for most
Veterans or claimants; however, the frequency of responses is also
dependent on the number of claims submitted on this form by the
claimant as VA does not limit the number of claims that a claimant can
submit.
Estimated average burden per response: 15 minutes.
Estimated total annual reporting and recordkeeping burden: 20,000
hours.
Estimated cost to respondents per year: VBA estimates the total
cost to all respondents to be $486,800 per year (20,000 burden hours x
$24.34 per hour). Legally, respondents may not pay a person or business
for assistance in completing the information collection. Therefore,
there are no expected overhead costs for completing the information
collection.
Title: Application for Higher-Level Review (VA Form 20-0996).
OMB Control No.: 2900-XXXX (NEW).
CFR Provisions: 38 CFR 3.2601, 8.30, 21.416, and 21.1034.
Summary of collection of information: VA administers an integrated
program of benefits and services, established by law, for veterans,
service personnel, and their dependents and/or beneficiaries. Title 38
U.S.C. 5101(a) provides that a specific claim in the form provided by
the Secretary must be filed in order for benefits to be paid to any
individual under the laws administered by the Secretary. The new
collection of information in proposed 38 CFR 3.2601, 8.30, 21.416, and
21.1034 would require claimants to submit VA prescribed applications in
either paper or electronic submission of responses, where applicable,
in order to request a higher-level review of a VA decision on a claim
for benefits.
Description of need for information and proposed use of
information: The collection of information is necessary to determine
the issue(s) that a claimant is dissatisfied with and seeks higher-
level review of by VA. VA will use this information to initiate a
higher-level review by an agency adjudicator in accordance with Public
Law 115-55.
Description of likely respondents: Veterans or claimants who
indicate dissatisfaction with a decision issued by a local VA office.
Estimated number of respondents per month/year: 35,000 annually.
Estimated frequency of responses per month/year: One response
total.
Estimated average burden per response: 15 minutes.
Estimated total annual reporting and recordkeeping burden: 8,750
hours.
Estimated cost to respondents per year: As above, VBA used May 2017
general wage data to estimate the respondents' costs associated with
completing the information collection. VBA estimates the total cost to
all respondents to be $212,975 per year (8,750 burden hours x $24.34
per hour). Legally, respondents may not pay a person or business for
assistance in completing the information collection. Therefore, there
are no expected overhead costs for completing the information
collection.
Title: Notice of Disagreement (VA Form 10182).
OMB Control No.: 2900-0674.
CFR Provisions: 38 CFR 20.202.
Summary of collection of information: Proposed 38 CFR 20.202 would
require that in order for a claimant to appeal one or more previously
decided issues to the Board, that claimant must file a Notice of
Disagreement in the form prescribed by VA. In order to promote
efficiency in the adjudication process while ensuring that the process
is simple and reliable for claimants, VA will require the use of a
specific form for this purpose. VA Form 10182 will be titled the Notice
of Disagreement. To be accepted by the Board, a complete Notice of
Disagreement will be required to identify the specific determination
with which the claimant disagrees, and must indicate if the claimant
requests to have a hearing before the Board, an opportunity to submit
additional evidence, or neither. 38 U.S.C. 7105(b)(2). Additionally, in
order to permit appellants and their representatives to exercise their
appeal-related rights, the information collected will include
withdrawals of services by representatives (proposed 38 CFR 20.6),
requests by appellants for changes in hearing dates or methods
(proposed 38 CFR 20.703), and motions for reconsideration of Board
decisions (proposed 38 CFR 20.1002).
Description of need for information and proposed use of
information: This collection of information is necessary to permit
claimants to appeal to the Board, to identify their request for a
hearing and selection of the evidentiary record on appeal, to request
new times or methods for hearings, to seek reconsideration of Board
decisions, and so that representatives may effectively move to withdraw
their representation of a claimant.
Description of likely respondents: Veterans or claimants who
indicate dissatisfaction with a decision issued by a local VA office,
and who are appealing one more issues in that decision to the Board.
Estimated number of respondents per month/year: 43,000 annually.
Estimated frequency of responses per month/year: One response per
respondent accounted for above.
Estimated average burden per response: An average of 30 minutes.
Estimated total annual reporting and recordkeeping burden: 21,500
hours annually.
Estimated cost to respondents per year: The respondent population
for this information collection is composed of individual appellants or
their representative. In this regard, VA notes that the earning
capacity of individual appellants spans an extremely wide spectrum.
Additionally, an appellant's representative may be an employee of a
recognized Veterans' service organization who provides appellate
services as part of their overall free services to Veterans, or may be
an attorney-at-law or accredited agent that charges a fee. VA cannot
make further assumptions about the population of respondents because of
the variability of factors such as the educational background and wage
potential of respondents. Therefore, VBA used the BLS general wage data
from May 2017 to estimate the respondents' costs associated with
completing the information collection. VA seeks
[[Page 39841]]
comment as to whether use of the general wage data is appropriate in
light of this wide spectrum of earning capacity in individual
respondents. VA estimates the total cost to respondents using VA Form
10182 in the new appeals system to be $523,310 per year (21,500 burden
hours x $24.34 per hour).
The total costs of these information collections to respondents is
estimated to be $8.4 million over a five-year period (FY2019-FY2023).
Regulatory Flexibility Act
The Secretary hereby certifies that these regulatory amendments
would 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. These amendments would not directly affect any small
entities. Only VA beneficiaries and their survivors could be directly
affected. Therefore, pursuant to 5 U.S.C. 605(b), these amendments are
exempt from the initial and final regulatory flexibility analysis
requirements of sections 603 and 604.
Executive Orders 12866, 13563, 13771
Executive Orders 12866 and 13563 direct agencies to assess the
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 effects, and other advantages; distributive impacts;
and equity). Executive Order 13563 (Improving Regulation and Regulatory
Review) emphasizes the importance of quantifying both costs and
benefits, reducing costs, harmonizing rules, and promoting flexibility.
Executive Order 12866 (Regulatory Planning and Review) defines a
``significant regulatory action,'' which requires review by OMB, 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 taken or planned 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 this Executive
Order.''
The economic, interagency, budgetary, legal, and policy
implications of this proposed rule have been examined, and it has been
determined that this is an economically significant regulatory action
under Executive Order 12866. This proposed rule is expected to be an
E.O. 13771 deregulatory action. Details on the estimated cost savings
of this proposed rule can be found in the rule's economic analysis.
VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking
document is published. Additionally, a copy of the rulemaking and its
impact analysis are available on VA's website at http://www.va.gov/orpm
by following the link for VA Regulations Published from FY 2004 Through
Fiscal Year to Date.
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.
List of Subjects
38 CFR Part 3
Administrative practice and procedure, Claims, Disability benefits,
Health care, Pensions, Radioactive materials, Veterans, Vietnam.
38 CFR Part 8
Life insurance; Military personnel; Veterans.
38 CFR Part 14
Administrative practice and procedure, Claims, Courts, Foreign
relations, Government employees, Lawyers, Legal services, Organization
and functions (Government agencies), Reporting and recordkeeping
requirements, Surety bonds, Trusts and trustees, Veterans.
38 CFR Parts 19 and 20
Administrative practice and procedure, Claims, Veterans.
38 CFR Part 21
Administrative practice and procedure, Armed forces,Civil rights,
Claims, Colleges and universities, Conflict of interests, Defense
Department, Education, Employment, Grant programs-education, Grant
programs-veterans, Health care, Loan programs-education, Loan programs-
veterans, Manpower training programs, Reporting and recordkeeping
requirements, Schools, Travel and transportation expenses, Veterans,
Vocational education, Vocational rehabilitation.
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. Peter M.
O'Rourke, Chief of Staff, Department of Veterans Affairs, approved this
document on April 24, 2018, for publication.
[[Page 39842]]
Dated: July 18, 2018.
Jeffrey M. Martin,
Impact Analyst, Office of Regulation Policy & Management, Office of the
Secretary, Department of Veterans Affairs.
For the reasons set forth in the preamble, VA proposes to amend 38
CFR parts 3, 8, 14, 19, 20, and 21 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. 3.1 by revising paragraph (p) to read as follows:
Sec. 3.1 Definitions.
* * * * *
(p) Claim means a written communication requesting a determination
of entitlement or evidencing a belief in entitlement, to a specific
benefit under the laws administered by the Department of Veterans
Affairs submitted on an application form prescribed by the Secretary.
(See scope of claim, Sec. 3.155(d)(2); complete claim, Sec.
3.160(a)).
(1) Initial claim. An initial claim is any complete claim, other
than a supplemental claim, for a benefit on a form prescribed by the
Secretary. Initial claims include:
(i) An original claim for one or more benefits, which is the first
complete claim received by VA (see original claim, Sec. 3.160(b)).
(ii) A new claim requesting service connection for a disability or
grant of a new benefit, and
(iii) A claim for increase in a disability evaluation rating or
rate of a benefit paid.
(2) Supplemental claim. A supplemental claim is any complete claim
for a VA benefit on an application form prescribed by the Secretary
where an initial claim for the same or similar benefit on the same or
similar basis was previously decided. (See supplemental claim; Sec.
3.2501).
* * * * *
0
3. Amend Sec. 3.103 by revising the section heading and paragraphs
(b)(1), (c), (d), and (f) to read as follows:
Sec. 3.103 Procedural due process and other rights.
* * * * *
(b) * * *
(1) General. Claimants and their representatives are entitled to
notice of any decision made by VA affecting the payment of benefits or
the granting of relief. Such notice will clearly set forth the elements
described under paragraph (f) of this section, the right to a hearing
on any issue involved in the claim when applicable, the right of
representation, and the right, as well as the necessary procedures and
time limits to initiate a higher-level review, supplemental claim, or
appeal to the Board of Veterans' Appeals.
* * * * *
(c) Submission of evidence. (1) General rule. VA will include in
the record, any evidence whether documentary, testimonial, or in other
form, submitted by the claimant in support of a pending claim and any
issue, contention, or argument a claimant may offer with respect to a
claim, except as prescribed in paragraph (2) of this section and Sec.
3.2601(f).
(2) Treatment of evidence received after notice of a decision. The
evidentiary record for a claim before the agency of original
jurisdiction closes when VA issues notice of a decision on the claim.
The agency of original jurisdiction will not consider, or take any
other action on evidence submitted by a claimant after notice of
decision on a claim, and such evidence will not be considered part of
the record at the time of any decision by the agency of original
jurisdiction, except under the following circumstances:
(i) The agency of original jurisdiction subsequently receives a
complete application for a supplemental claim or claim for increase; or
(ii) A claim is pending readjudication after identification of a
duty to assist error during a higher-level review or appeal to the
Board of Veterans' Appeals. Those events reopen the record and any
evidence previously submitted to the agency of original jurisdiction
while the record was closed will become part of the record to be
considered upon readjudication.
(d) The right to a hearing. (1) Upon request, a claimant is
entitled to a hearing on any issue involved in a claim within the
purview of part 3 of this chapter before VA issues notice of a decision
on an initial or supplemental claim. A hearing is not available in
connection with a request for higher level review under Sec. 3.2601.
VA will provide the place of hearing in the VA field office having
original jurisdiction over the claim, or at the VA office nearest the
claimant's home having adjudicative functions, or videoconference
capabilities, 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 who have original determinative authority of such issues to
conduct the hearing and be responsible for establishment and
preservation of the hearing record. Upon request, a claimant is
entitled to a hearing in connection with proposed adverse actions
before one or more VA employees having original determinative authority
who did not participate in the proposed action. All expenses incurred
by the claimant in connection with the hearing are the responsibility
of the claimant.
(2) The purpose of a hearing is to permit the claimant to introduce
into the record, in person, any available evidence which he or she
considers relevant and any arguments or contentions with respect to the
facts and applicable law which he or she may consider pertinent. All
testimony will be under oath or affirmation. The claimant is entitled
to produce witnesses, but the claimant and witnesses must be present.
The agency of original jurisdiction will not normally schedule a
hearing for the sole purpose of receiving argument from a
representative. It is the responsibility of the VA employees conducting
the hearings to explain fully the issues and suggest the submission of
evidence which the claimant may have overlooked and which would be of
advantage to the claimant's position. To assure clarity and
completeness of the hearing record, questions which are directed to the
claimant and to witnesses are to be framed to explore fully the basis
for claimed entitlement rather than with an intent to refute evidence
or to discredit testimony.
* * * * *
(f) Notification of decisions. The claimant or beneficiary and his
or her representative will be notified in writing of decisions
affecting the payment of benefits or granting of relief. Written
notification must include in the notice letter or enclosures or a
combination thereof, all of the following elements:
(1) Identification of the issues adjudicated;
(2) A summary of the evidence considered;
(3) A summary of the laws and regulations applicable to the claim;
(4) A listing of any findings made by the adjudicator that are
favorable to the claimant under Sec. 3.104(c);
(5) For denied claims, identification of the element(s) required to
grant the claim(s) that were not met;
(6) If applicable, identification of the criteria required to grant
service
[[Page 39843]]
connection or the next higher-level of compensation;
(7) An explanation of how to obtain or access evidence used in
making the decision; and
(8) A summary of the applicable review options under Sec. 3.2500
available for the claimant to seek further review of the decision.
* * * * *
0
4. Amend Sec. 3.104 as follows:
0
a. Revise the section heading;
0
b. Revise paragraph (a);
0
c. Add a heading to paragraph (b); and
0
d. Add paragraph (c).
The revisions and additions read as follows:
Sec. 3.104 Binding nature of decisions.
(a) Binding decisions. A decision of a VA rating agency is binding
on all VA field offices as to conclusions based on the evidence on file
at the time VA issues written notification in accordance with 38 U.S.C.
5104. A binding agency decision is not subject to revision except by
the Board of Veterans' Appeals, by federal court order, or as provided
in Sec. Sec. 3.105, 3.2500, and 3.2600.
(b) Binding administrative determinations. * * *
(c) Favorable findings. Any finding favorable to the claimant made
by either a VA adjudicator, as described in 3.103(f)(4), or by the
Board of Veterans' Appeals, as described in 20.801(a) of this chapter,
is binding on all subsequent VA and Board of Veterans' Appeals
adjudicators, unless rebutted by clear and convincing evidence to the
contrary. For purposes of this section, a finding means a conclusion
either on a question of fact or on an application of law to facts made
by an adjudicator concerning the issue(s) under review.
0
5. Amend Sec. 3.105 by revising paragraphs (a) and (b), and adding
paragraph (j) to read as follows:
Sec. 3.105 Revision of decisions.
* * * * *
(a)(1) Error in final decisions. Decisions are final when the
underlying claim is finally adjudicated as provided in Sec. 3.160(d).
Final decisions will be accepted by VA as correct with respect to the
evidentiary record and the law that existed at the time of the
decision, in the absence of clear and unmistakable error. At any time
after a decision is final, the claimant may request, or VA may
initiate, review of the decision to determine if there was a clear and
unmistakable error in the decision. Where evidence establishes such
error, the prior decision will be reversed or amended.
(i) Definition of clear and unmistakable error. A clear and
unmistakable error is a very specific and rare kind of error. It is the
kind of error, of fact or of law, that when called to the attention of
later reviewers compels the conclusion, to which reasonable minds could
not differ, that the result would have been manifestly different but
for the error. If it is not absolutely clear that a different result
would have ensued, the error complained of cannot be clear and
unmistakable. Generally, either the correct facts, as they were known
at the time, were not before VA, or the statutory and regulatory
provisions extant at the time were incorrectly applied.
(ii) Effective date of reversed or revised decisions. For the
purpose of authorizing benefits, the rating or other adjudicative
decision which constitutes a reversal or revision of a prior decision
on the grounds of clear and unmistakable error has the same effect as
if the corrected decision had been made on the date of the reversed
decision. Except as provided in paragraphs (d) and (e) of this section,
where an award is reduced or discontinued because of administrative
error or error in judgment, the provisions of Sec. 3.500(b)(2) will
apply.
(iii) Record to be reviewed. Review for clear and unmistakable
error in a prior final decision of an agency of original jurisdiction
must be based on the evidentiary record and the law that existed when
that decision was made. The duty to assist in Sec. 3.159 does not
apply to requests for revision based on clear and unmistakable error.
(iv) Change in interpretation. Clear and unmistakable error does
not include the otherwise correct application of a statute or
regulation where, subsequent to the decision being challenged, there
has been a change in the interpretation of the statute or regulation.
(v) Limitation on Applicability. Decisions of an agency of original
jurisdiction on issues that have been decided on appeal by the Board or
a court of competent jurisdiction are not subject to revision under
this subsection.
(vi) Duty to assist not applicable. For examples of situations that
are not clear and unmistakable error see 38 CFR 20.1403(d).
(vii) Filing Requirements. (A) General. A request for revision of a
decision based on clear and unmistakable error must be in writing, and
must be signed by the requesting party or that party's authorized
representative. The request must include the name of the claimant; the
name of the requesting party if other than the claimant; the applicable
Department of Veterans Affairs file number; and the date of the
decision to which the request relates. If the applicable decision
involved more than one issue, the request must identify the specific
issue, or issues, to which the request pertains.
(B) Specific allegations required. The request must set forth
clearly and specifically the alleged clear and unmistakable error, or
errors, of fact or law in the prior decision, the legal or factual
basis for such allegations, and why the result would have been
manifestly different but for the alleged error. Non-specific
allegations of failure to follow regulations or failure to give due
process, or any other general, non-specific allegations of error, are
insufficient to satisfy the requirement of the previous sentence.
(2) Error in binding decisions prior to final adjudication. Prior
to the time that a claim is finally adjudicated, previous decisions
which are binding will be accepted as correct by an adjudicative
agency, with respect to the evidentiary record and law existing at the
time of the decision, unless the outcome is clearly erroneous, after
considering whether any favorable findings may be reversed as provided
in Sec. 3.104(c).
(b) Difference of opinion. Whenever an adjudicative agency is of
the opinion that a revision or an amendment of a previous decision is
warranted on the basis of the evidentiary record and law that existed
at the time of the decision, a difference of opinion being involved
rather than a clear and unmistakable error, the proposed revision will
be recommended to Central Office. However, a decision may be revised
under Sec. 3.2600 or Sec. 3.2601 without being recommended to Central
Office.
* * * * *
(j) Supplemental claims and higher-level review. VA may revise an
earlier decision denying benefits, if warranted, upon resolution of a
supplemental claim under Sec. 3.160(c) or higher-level review under
Sec. 3.2601.
Sec. 3.110 [Amended]
0
6. Amend Sec. 3.110(b) by removing ``Sec. Sec. 20.302 and 20.305''
from the last sentence and adding in its place ``Sec. Sec. 19.52,
20.203, and 20.110''.
0
7. Amend Sec. 3.151 as follows:
0
a. Revise paragraph (a); and
0
b. Add paragraphs (c) and (d);
The revisions and additions read as follows:
Sec. 3.151 Claims for disability benefits.
(a) General. A specific claim in the form prescribed by the
Secretary must be filed in order for benefits to be paid to any
individual under the laws administered by VA. (38 U.S.C. 5101(a)). A
claim by a veteran for compensation
[[Page 39844]]
may be considered to be a claim for pension; and a claim by a veteran
for pension may be considered to be a claim for compensation. The
greater benefit will be awarded, unless the claimant specifically
elects the lesser benefit. (See scope of claim, Sec. 3.155(d)(2);
complete claim, Sec. 3.160(a); supplemental claims, Sec. 3.2501(b)).
* * * * *
(c) Issues within a claim. (1) To the extent that a complete claim
application encompasses a request for more than one determination of
entitlement, each specific entitlement will be adjudicated and is
considered a separate issue for purposes of the review options
prescribed in Sec. 3.2500. A single decision by an agency of original
jurisdiction may adjudicate multiple issues in this respect, whether
expressly claimed or determined by VA to be reasonably within the scope
of the application as prescribed in Sec. 3.155(d)(2). VA will issue a
decision that addresses each such identified issue within a claim. Upon
receipt of notice of a decision, a claimant may elect any of the
applicable review options prescribed in Sec. 3.2500 for each issue
adjudicated.
(2) With respect to service-connected disability compensation, an
issue for purposes of paragraph (c)(1) of this section is defined as
entitlement to compensation for a particular disability. For example,
if a decision adjudicates service-connected disability compensation for
both a knee condition and an ankle condition, compensation for each
condition is a separate entitlement or issue for which a different
review option may be elected. However, different review options may not
be selected for specific components of the knee disability claim, such
as ancillary benefits, whether a knee injury occurred in service, or
whether a current knee condition resulted from a service-connected
injury or condition.
(d) Evidentiary record. The evidentiary record before the agency of
original jurisdiction for an initial or supplemental claim includes all
evidence received by VA before VA issues notice of a decision on the
claim. Once the agency of original jurisdiction issues notice of a
decision on a claim, the evidentiary record closes as described in
Sec. 3.103(c)(2) and VA no longer has a duty to assist in gathering
evidence under Sec. 3.159. (See Sec. 3.155(b), submission of
evidence).
* * * * *
0
8. Amend Sec. 3.155 by revising the second sentence of the
introductory text and paragraph (d)(1) to read as follows:
Sec. 3.155 How to file a claim.
* * * The provisions of this section are applicable to all claims
governed by part 3, with the exception that paragraph (b) of this
section, regarding intent to file a claim, does not apply to
supplemental claims.
* * * * *
(d) * * *
(1) Requirement for complete claim and date of claim. A complete
claim is required for all types of claims, and will generally be
considered filed as of the date it was received by VA for an evaluation
or award of benefits under the laws administered by the Department of
Veterans Affairs. For supplemental claims, if VA received a complete
claim within 1 year of the filing of an incomplete claim, as provided
in paragraph (c) of this section, it will be considered filed as of the
date of receipt of the incomplete claim. For other types of claims, if
VA receives a complete claim within 1 year of the filing of an intent
to file a claim that meets the requirements of paragraph (b) of this
section, it will be considered filed as of the date of receipt of the
intent to file a claim. Only one complete claim for a benefit (e.g.,
compensation, pension) may be associated with each intent to file a
claim for that benefit, though multiple issues may be contained within
a complete claim. In the event multiple complete claims for a benefit
are filed within 1 year of an intent to file a claim for that benefit,
only the first claim filed will be associated with the intent to file a
claim. In the event that VA receives both an intent to file a claim and
an incomplete application form before the complete claim as defined in
Sec. 3.160(a) is filed, the complete claim will be considered filed as
of the date of receipt of whichever was filed first provided it is
perfected within the necessary timeframe, but in no event will the
complete claim be considered filed more than one year prior to the date
of receipt of the complete claim.
0
9. Amend Sec. 3.156 as follows:
0
a. Revise the section heading;
0
b. Add introductory text;
0
c. Revise paragraph (a);
0
d. In the authority immediately following paragraph (a), remove
``5103A(f)'' and add in its place ``5103A(h)'';
0
e. Revise the heading of paragraph (b);
0
f. Add new paragraph (d);
The revisions and additions read as follows:
Sec. 3.156 New evidence.
New evidence means evidence not previously submitted to agency
adjudicators.
(a) New and material evidence. For claims to reopen decided prior
to the effective date provided in Sec. 19.2(a), the following
standards apply. A claimant may reopen a finally adjudicated legacy
claim by submitting new and material evidence. Material evidence means
existing evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the time of the
last prior final denial of the claim sought to be reopened, and must
raise a reasonable possibility of substantiating the claim.
(Authority: 38 U.S.C. 501, 5103A(h), 5108)
(b) Pending legacy claims not under the modernized review system.
* * * * *
(d) New and relevant evidence. On or after the effective date
provided in Sec. 19.2(a), a claimant may file a supplemental claim as
prescribed in Sec. 3.2501. If new and relevant evidence is presented
or secured with respect to the supplemental claim, the agency of
original jurisdiction will readjudicate the claim taking into
consideration all of the evidence of record.
* * * * *
0
10. Amend Sec. 3.158 by revising the first sentence of paragraph (a)
to read as follows:
Sec. 3.158 Abandoned claims.
(a) General. Except as provided in Sec. 3.652, where evidence
requested in connection with an initial claim or supplemental claim or
for the purpose of determining continued entitlement is not furnished
within 1 year after the date of request, the claim will be considered
abandoned.
* * * * *
0
11. Amend Sec. 3.159 as follows:
0
a. Revise paragraph (a)(3);
0
b. Revise the first sentence of paragraph (b)(1);
0
c. Revise paragraph (b)(3);
0
d. Revise paragraph (c) introductory text;
0
e. Revise paragraph (c)(4)(iii);
0
f. Add paragraph (c)(4)(iv); and
0
g. Remove the text ``for a claim'' and adding in its place the text
``for an initial or supplemental claim'' in paragraph (d) introductory
text.
The revisions read as follows:
Sec. 3.159 Department of Veterans Affairs assistance in developing
claims.
(a) * * *
(3) Substantially complete application means an application
containing:
(i) The claimant's name;
[[Page 39845]]
(ii) His or her relationship to the veteran, if applicable;
(iii) Sufficient service information for VA to verify the claimed
service, if applicable;
(iv) The benefit sought and any medical condition(s) on which it is
based;
(v) The claimant's signature; and
(vi) In claims for nonservice-connected disability or death pension
and parents' dependency and indemnity compensation, a statement of
income;
(vii) In supplemental claims, identification or inclusion of
potentially new evidence;
(viii) For higher-level reviews, identification of the date of the
decision for which review is sought.
* * * * *
(b) VA's duty to notify claimants of necessary information or
evidence. (1) Except as provided in paragraph (3) of this section, when
VA receives a complete or substantially complete initial or
supplemental claim, VA will notify the claimant of any information and
medical or lay evidence that is necessary to substantiate the claim
(hereafter in this paragraph referred to as the ``notice'').
* * * * *
(3) No duty to provide the notice described in paragraph (b)(1) of
this section arises:
(i) Upon receipt of a supplemental claim under Sec. 3.2501 within
one year of the date VA issues notice of a prior decision;
(ii) Upon receipt of a request for higher-level review under Sec.
3.2601;
(iii) Upon receipt of a Notice of Disagreement under Sec. 20.202
of this chapter;
or
(iv) When, as a matter of law, entitlement to the benefit claimed
cannot be established.
(c) VA's duty to assist claimants in obtaining evidence. VA has a
duty to assist claimants in obtaining evidence to substantiate all
substantially complete initial and supplemental claims, and when a
claim is returned for readjudication by a higher-level adjudicator or
the Board after identification of a duty to assist error on the part of
the agency of original jurisdiction, until the time VA issues notice of
a decision on a claim or returned claim. VA will make reasonable
efforts to help a claimant obtain evidence necessary to substantiate
the claim. VA will not pay any fees charged by a custodian to provide
records requested. When a claim is returned for readjudication by a
higher-level adjudicator or the Board after identification of a duty to
assist error, the agency of original jurisdiction has a duty to correct
any other duty to assist errors not identified by the higher-level
adjudicator or the Board.
* * * * *
(4) * * *
(iii) For requests to reopen a finally adjudicated claim received
prior to the effective date provided in Sec. 19.2(a) of this chapter,
paragraph (c)(4) of this section applies only if new and material
evidence is presented or secured as prescribed in Sec. 3.156.
(iv) Paragraph (c)(4) of this section applies to a supplemental
claim only if new and relevant evidence under Sec. 3.2501 is presented
or secured.
* * * * *
0
12. Amend Sec. 3.160 as follows:
0
a. Revise paragraphs (a), (d), and (e);
0
b. Remove paragraph (f); and
0
c. Revise the authority citation for paragraph (e).The revisions read
as follows:
Sec. 3.160 Status of claims.
(a) Complete Claim. A submission of an application form prescribed
by the Secretary, whether paper or electronic, that meets the following
requirements:
(1) A complete claim must provide the name of the claimant; the
relationship to the veteran, if applicable; and sufficient information
for VA to verify the claimed service, if applicable.
(2) A complete claim must be signed by the claimant or a person
legally authorized to sign for the claimant.
(3) A complete claim must identify the benefit sought.
(4) A description of any symptom(s) or medical condition(s) on
which the benefit is based must be provided to the extent the form
prescribed by the Secretary so requires.
(5) For nonservice-connected disability or death pension and
parents' dependency and indemnity compensation claims, a statement of
income must be provided to the extent the form prescribed by the
Secretary so requires; and
(6) For supplemental claims, potentially new evidence must be
identified or included.
* * * * *
(d) Finally adjudicated claim. A claim that is adjudicated by the
Department of Veterans Affairs as either allowed or disallowed is
considered finally adjudicated when:
(1) For legacy claims not subject to the modernized review system,
whichever of the following occurs first:
(i) The expiration of the period in which to file a Notice of
Disagreement, pursuant to the provisions of Sec. 19.52(a) or Sec.
20.502(a) of this chapter, as applicable; or
(ii) Disposition on appellate review.
(2) For claims under the modernized review system, the expiration
of the period in which to file a review option available under Sec.
3.2500 or disposition on judicial review where no such review option is
available.
(e) Reopened claims prior to effective date of modernized review
system. An application for a benefit received prior to the effective
date provided in Sec. 19.2(a) of this chapter, after final
disallowance of an earlier claim that is subject to readjudication on
the merits based on receipt of new and material evidence related to the
finally adjudicated claim, or any claim based on additional evidence or
a request for a personal hearing submitted more than 90 days following
notification to the appellant of the certification of an appeal and
transfer of applicable records to the Board of Veterans' Appeals which
was not considered by the Board in its decision and was referred to the
agency of original jurisdiction for consideration as provided in Sec.
20.1304(b)(1) of this chapter. As of the effective date provided in
Sec. 19.2(a) of this chapter, claimants may no longer file to reopen a
claim, but may file a supplemental claim as prescribed in Sec. 3.2501
to apply for a previously disallowed benefit. A request to reopen a
finally decided claim that has not been adjudicated as of the effective
date will be processed as a supplemental claim subject to the
modernized review system.
(Authority: 38 U.S.C. 501, 5108)
* * * * *
0
13. Remove and reserve Sec. 3.161.
Sec. 3.161 [Removed and Reserved].
0
14. Amend Sec. 3.328 as follows:
0
a. In paragraph (b), remove the text ``at the regional office level''
and add in its place ``before VA'';
0
b. Revise paragraph (c);
The revision reads as follows:
Sec. 3.328 lndependent medical opinions.
* * * * *
(c) Approval. (1) Requests for independent medical opinions shall
be approved when one of the following conditions is met:
(i) The director of the Service or his or her designee determines
that the issue under consideration poses a medical problem of such
obscurity or complexity, or has generated such controversy in the
medical community at large, as to justify solicitation of an
independent medical opinion; or
(ii) The independent medical opinion is required to fulfill the
instructions
[[Page 39846]]
contained in a remand order from the Board of Veterans' Appeals.
(2) A determination that an independent medical opinion is not
warranted may be contested only as part of an appeal to the Board of
Veterans' Appeals on the merits of the decision rendered on the primary
issue by VA.
(Authority: 38 U.S.C. 5109, 5701(b)(1); 5 U.S.C. 552a(f)(3))
* * * * *
0
15. Amend 3.400 as follows:
0
a. Revise the introductory text;
0
b. Revise paragraphs (h)(1) through (h)(3);
0
c. Revise paragraph (z)(2); and
0
d. Add paragraph (z)(3).
The revisions read as follows:
Sec. 3.400 General.
Except as otherwise provided, the effective date of an evaluation
and award of pension, compensation, or dependency and indemnity
compensation based on an initial claim or supplemental claim will be
the date of receipt of the claim or the date entitlement arose,
whichever is later. For effective date provisions regarding revision of
a decision based on a supplemental claim or higher-level review, see
Sec. 3.2500.
* * * * *
(h) Difference of opinion (Sec. 3.105). (1) As to decisions not
finally adjudicated (see Sec. 3.160(d)) prior to timely receipt of an
application for higher-level review, or prior to readjudication on VA
initiative, the date from which benefits would have been payable if the
former decision had been favorable.
(2) As to decisions which have been finally adjudicated (see Sec.
3.160(d)), and notwithstanding other provisions of this section, the
date entitlement arose, but not earlier than the date of receipt of the
supplemental claim.
(3) As to decisions which have been finally adjudicated (see
3.160(d)) and readjudication is undertaken solely on VA initiative, the
date of Central Office approval authorizing a favorable decision or the
date of the favorable Board of Veterans' Appeals decision.
* * * * *
(z) * * *
(2) Reopened claims received prior to the effective date provided
in Sec. 19.2(a) of this chapter: Latest of the following dates:
(i) November 23, 1977.
(ii) Date entitlement arose.
(iii) One year prior to date of receipt of reopened claim.
(3) Supplemental claims received more than one year after notice of
decision: Latest of the following dates:
(i) Date entitlement arose.
(ii) One year prior to date of receipt of a supplemental claim.
0
16. In subpart A, remove the word ``reopened'' and add, in its place,
the word ``supplemental'' in the following places:
0
a. Sec. 3.31
0
b. Sec. 3.114
0
c. Sec. 3.321
0
d. Sec. 3.326
0
e. Sec. 3.372
0
f. Sec. 3.401
0
g. Sec. 3.402
0
h. Sec. 3.404
0
i. Sec. 3.655
0
j. Sec. 3.812
Sec. 3.814 [Amended]
0
17. Amend Sec. 3.814 by removing the words ``original claim, a claim
reopened after final disallowance, or a claim for increase'' and add,
in its place, the words ``initial claim or supplemental claim'' from
paragraph (e) introductory text.
Sec. 3.815 [Amended]
0
18. Amend Sec. 3.815 by removing the words ``original claim, a claim
reopened after final disallowance, or a claim for increase,'' and add,
in its place, the words ``initial claim or supplemental claim'' from
paragraph (i) introductory text.
Subpart D--Universal Adjudication Rules That Apply to Benefit
Claims Governed by Part 3 of This Title
0
19. The authority citation for part 3, subpart D continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
20. Amend subpart D by adding Sec. 3.2400 to read as follows:
Sec. 3.2400 Applicability of modernized review system.
(a) The modernized review system defined in 38 CFR 19.2(b) applies
to all claims, requests for reopening of finally adjudicated claims,
and requests for revision based on clear and unmistakable error:
(1) For which VA issues notice of an initial decision on or after
the effective date of the modernized review system as provided in 38
CFR 19.2(a); or
(2) Where a claimant has elected review of a legacy claim under the
modernized review system as provided in paragraph (c) of this section.
(b) Legacy claims. A legacy claim is a claim, or request for
reopening or revision of a finally adjudicated claim, for which VA
provided notice of a decision prior to the effective date of the
modernized review system and the claimant has not elected to
participate in the modernized review system as provided in paragraph
(c) of this section.
(c) Election into the modernized review system. For claims governed
by this part, pursuant to election by a claimant, the modernized review
system applies where:
(1) Rapid appeals modernization program election. A claimant with a
legacy appeal elects to opt-in to the modernized review system on or
after November 1, 2017, as part of a program authorized by the
Secretary pursuant to section 4 of Public Law 115-55; or
(2) Election after receiving a statement of the case. A claimant
with a legacy appeal elects to opt-in to the modernized review system,
following issuance, on or after the effective date of the modernized
system, of a VA Statement of the Case or Supplemental Statement of the
Case, by filing for a review option under the new system in accordance
with Sec. 3.2500 within the time allowed for filing a substantive
appeal under 38 CFR 19.52(b) and other applicable provisions in part 19
of this chapter.
(d) Effect of election. Once an eligible claimant elects the
modernized review system with respect to a particular claim, the
provisions of 38 CFR parts 19 and 20 applicable to legacy claims and
appeals no longer apply to that claim.
0
21. Amend subpart D by adding Sec. 3.2500 to read as follows:
Sec. 3.2500 Review of decisions.
(a) Reviews available. (1) Within one year from the date on which
the agency of original jurisdiction issues a notice of a decision on a
claim or issue as defined in Sec. 3.151(c), except as otherwise
provided in paragraphs (c), (e), and (f) of this section, a claimant
may elect one of the following administrative review options by timely
filing the appropriate form prescribed by the Secretary:
(i) A request for higher-level review under Sec. 3.2601 or
(ii) An appeal to the Board under Sec. 20.202 of this chapter.
(2) At any time after VA issues notice of a decision on an issue
within a claim, a claimant may file a supplemental claim under Sec.
3.2501.
(b) Concurrent election prohibited. With regard to the adjudication
of a claim or an issue as defined in Sec. 3.151(c), a claimant who has
filed for review under one of the options available under paragraph (a)
of this section may not, while that review is pending final
adjudication, file for review under a different available option. While
the adjudication of a specific benefit is pending on appeal before a
federal court, a claimant may not file for administrative review of the
[[Page 39847]]
claim under any of options listed in paragraph (a) of this section.
(c) Continuously pursued issues. A claimant may continuously pursue
a claim or an issue by timely and properly filing one of the following
administrative review options, as specified, after any decision by the
agency of original jurisdiction, Board of Veterans' Appeals, or entry
of judgment by the U.S. Court of Appeals for Veterans Claims, provided
that any appeal to the U.S. Court of Appeals for Veterans Claims is
timely filed as determined by the court:
(1) Following notice of a decision on a supplemental claim, the
claimant may file another supplemental claim, request a higher-level
review, or appeal to the Board of Veterans' Appeals.
(2) Following notice of a decision on a higher-level review, the
claimant may file a supplemental claim or appeal to the Board of
Veterans' Appeals. (See appeal to the Board, 38 CFR 20.202).
(3) Following notice of a decision on an appeal to the Board of
Veterans' Appeals, the claimant may file a supplemental claim.
(4) Following entry of judgment on an appeal to the Court of
Appeals for Veterans Claims, the claimant may file a supplemental
claim.
(d) Voluntary withdrawal. A claimant may withdraw a supplemental
claim or a request for a higher-level review at any time before VA
renders a decision on the issue. A claimant may change the review
option selected by withdrawing the request and filing the appropriate
application for the requested review option within one year from the
date on which VA issued notice of a decision on an issue.
(e) Applicability. This section applies to claims and requests
under the modernized review system as set forth in Sec. 3.2400, with
the exception that a supplemental claim may not be filed in connection
with a denial of a request to revise a final decision of the agency of
original jurisdiction based on clear and unmistakable error .
(f) Review of simultaneously contested claims. Notwithstanding
other provisions of this part, a party to a simultaneously contested
claim may only seek administrative review of a decision by the agency
of original jurisdiction on such claim by filing an appeal to the Board
as prescribed in Sec. 20.402 of this chapter within 60 days of the
date VA issues notice of the decision on the claim. (See contested
claims, 38 CFR 20.402).
(g) Effective dates. (1) Continuously pursued claims. Except as
otherwise provided by other provisions of this part, including Sec.
3.400, the effective date will be fixed in accordance with the date of
receipt of the initial claim or date entitlement arose, whichever is
later, if a claimant continuously pursues an issue by timely filing in
succession any of the available review options as specified in
paragraph (c) of this section.
(2) Supplemental claims received more than one year after notice of
decision. Except as otherwise provided in this section, for
supplemental claims received more than one year after the date on which
the agency of original jurisdiction issues notice of a decision or the
Board of Veterans' Appeals issued notice of a decision, the effective
date will be fixed in accordance with date entitlement arose, but will
not be earlier than the date of receipt of the supplemental claim.
0
22. Amend subpart D by adding Sec. 3.2501 to read as follows:
Sec. 3.2501 Supplemental claims.
Except as otherwise provided, a claimant or his or her legal
representative, if any, may file a supplemental claim (see Sec.
3.1(p)(2)) by submitting a complete application (see Sec. 3.160(a)) in
writing on a form prescribed by the Secretary any time after the agency
of original jurisdiction issues notice of a decision, regardless of
whether the claim is pending or has become finally adjudicated. If new
and relevant evidence is presented or secured with respect to the
supplemental claim, the agency of original jurisdiction will
readjudicate the claim taking into consideration all of the evidence of
record. If new and relevant evidence is not presented or secured, the
agency of original jurisdiction will issue a decision finding that
there was insufficient evidence to readjudicate the claim.
(a) New and relevant evidence. The new and relevant standard will
not impose a higher evidentiary threshold than the previous new and
material evidence standard under Sec. 3.156(a).
(1) Definition. New evidence is evidence not previously submitted
to agency adjudicators. Relevant evidence is information that tends to
prove or disprove a matter at issue in a claim. Relevant evidence
includes evidence that raises a theory of entitlement that was not
previously addressed.
(2) Receipt prior to notice of a decision. New and relevant
evidence received before VA issues its decision on a supplemental claim
will be considered as having been filed in connection with the claim.
(b) Evidentiary record. The evidentiary record for a supplemental
claim includes all evidence received by VA before VA issues notice of a
decision on the supplemental claim. For VA to readjudicate the claim,
the evidentiary record must include new and relevant evidence that was
not of record as of the date of notice of the prior decision.
(c) Duty to assist. Upon receipt of a substantially complete
supplemental claim, VA's duty to assist in the gathering of evidence
under Sec. 3.159 of this part is triggered and includes any such
assistance that may help secure new and relevant evidence as defined in
paragraph (a) of this section to complete the supplemental claim
application.
(d) Date of filing. The filing date of a supplemental claim is
determined according to Sec. 3.155, with the exception of the intent
to file rule found in Sec. 3.155(b) which applies to initial claims.
(Authority: 38 U.S.C. 501, 5103A(h), 5108)
0
23. Amend subpart D by adding Sec. 3.2502 to read as follows:
Sec. 3.2502 Return by higher-level adjudicator or remand by the
Board of Veterans' Appeals.
Upon receipt of a returned claim from a higher-level adjudicator or
remand by the Board of Veterans' Appeals, the adjudication activity
will take immediate action to expedite readjudication of the claim in
accordance with 38 U.S.C. 5109B. The adjudication activity retains
jurisdiction of the claim. In readjudicating the claim, the
adjudication activity will correct all identified duty to assist
errors, complete a new decision and issue notice to the claimant and or
his or her legal representative in accordance with 3.103(f). The
effective date of any evaluation and award of pension, compensation or
dependency and indemnity compensation will be determined in accordance
with the date of receipt of the initial claim as prescribed under Sec.
3.2500(g).
0
24. Amend Sec. 3.2600 as follows:
0
a. Revise the section heading;
0
b. Add introductory text;
0
c. Remove paragraph (g).
The revisions and additions read as follows:
Sec. 3.2600 Legacy review of benefit claims decisions.
This section applies only to legacy claims as defined in Sec.
3.2400 in which a Notice of Disagreement is timely filed on or after
June 1, 2001, under regulations applicable at the time of filing.
* * * * *
0
25. Amend subpart D by adding Sec. 3.2601 to read as follows:
[[Page 39848]]
Sec. 3.2601 Higher-level review.
(a) Applicability. This section applies to all claims under the
modernized review system, with the exception of simultaneously
contested claims.
(b) Requirements for election. A claimant who is dissatisfied with
a decision by the agency of original jurisdiction may file a request
for higher-level review in accordance with Sec. 3.2500, by submitting
a complete request for review on a form prescribed by the Secretary.
(c) Complete request. A complete request for higher-level review is
a submission of a request on a form prescribed by the Secretary,
whether paper or electronic, that meets the following requirements:
(1) A complete request must provide the name of the claimant and
the relationship to the veteran, if applicable;
(2) A complete request must be signed by the claimant or a person
legally authorized to sign for the claimant; and
(3) A complete request must specify the date of the underlying
decision for which review is requested and specify the issues for which
review is requested.
(d) Filing period. A complete request for higher-level review must
be received by VA within one year of the date of VA's issuance of the
notice of the decision. If VA receives an incomplete request form, VA
will notify the claimant and the claimant's representative, if any, of
the information necessary to complete the request form prescribed by
the Secretary. If a complete request is submitted within 60 days of the
date of the VA notification of such incomplete request or prior to the
expiration of the one year filing period, VA will consider it filed as
of the date VA received the incomplete application form that did not
meet the standards of a complete request.
(e) Who may conduct a higher-level review. Higher-level review will
be conducted by an experienced adjudicator who did not participate in
the prior decision. Selection of a higher-level adjudicator to conduct
a higher-level review is at VA's discretion. As a general rule, an
adjudicator in an office other than the office that rendered the prior
decision will conduct the higher-level review. An exception to this
rule applies for claims requiring specialized processing, such as where
there is only one office that handles adjudication of a particular type
of entitlement. A claimant may request that the office that rendered
the prior decision conduct the higher-level review, and VA will grant
the request in the absence of good cause to deny.
(f) Evidentiary record. The evidentiary record in a higher-level
review is limited to the evidence of record as of the date the agency
of original jurisdiction issued notice of the prior decision under
review and the higher-level adjudicator may not consider additional
evidence. The higher-level adjudicator may not order development of
additional evidence that may be relevant to the claim under review,
except as provided in paragraph (g).
(g) Duty to assist errors. The higher-level adjudicator will ensure
that VA complied with its statutory duty to assist (see Sec. 3.159) in
gathering evidence applicable prior to issuance of the decision being
reviewed. If the higher-level adjudicator both identifies a duty to
assist error that existed at the time of VA's decision on the claim
under review and cannot grant the maximum benefit for the claim, the
higher-level adjudicator must return the claim to the adjudication
activity for correction of the error and readjudication. Upon receipt,
the adjudication activity will take immediate action to expedite
readjudication of the claim in accordance with 38 U.S.C. 5109B.
(1) For disability evaluations, the maximum benefit means the
highest schedular evaluation allowed by law and regulation for the
issue under review.
(2) For ancillary benefits, the maximum benefit means the granting
of the benefit sought.
(3) For pension benefits or dependents indemnity compensation, the
maximum benefit means granting the highest benefit payable.
(h) Informal conferences. A claimant or his or her representative
may include a request for an informal conference with a request for
higher-level review. For purposes of this section, informal conference
means contact with a claimant's representative or, if not represented,
with the claimant, telephonically, or as otherwise determined by VA,
for the sole purpose of allowing the claimant or representative to
identify any errors of law or fact in a prior decision based on the
record at the time the decision was issued. If requested, VA will make
reasonable efforts to contact the claimant and/or the authorized
representative to conduct one informal conference during a higher-level
review, but if such reasonable efforts are not successful, a decision
may be issued in the absence of an informal conference. The higher-
level adjudicator with determinative authority over the issue will
conduct the informal conference, absent exceptional circumstances. VA
will not receive any new evidence in support of the higher-level review
during the informal conference in accordance with paragraph (d) of this
section. Any expenses incurred by the claimant in connection with the
informal conference are the responsibility of the claimant.
(i) De novo review. The higher-level adjudicator will consider only
those decisions and claims for which the claimant has requested higher-
level review, and will conduct a de novo review giving no deference to
the prior decision, except as provided in Sec. 3.104(c).
(j) Difference of opinion. The higher-level adjudicator may grant a
benefit sought in the claim under review based on a difference of
opinion (see Sec. 3.105(b)). However, any finding favorable to the
claimant is binding except as provided in Sec. 3.104(c) of this part .
In addition, the higher-level adjudicator will not revise the outcome
in a manner that is less advantageous to the claimant based solely on a
difference of opinion. The higher-level adjudicator may reverse or
revise (even if disadvantageous to the claimant) prior decisions by VA
(including the decision being reviewed or any prior decision) on the
grounds of clear and unmistakable error under Sec. 3.105(a)(1) or
(a)(2), as applicable, depending on whether the prior decision is
finally adjudicated.
(k) Notice requirements. Notice of a decision made under this
section will include all of the elements described in Sec. 3.103(f), a
general statement indicating whether evidence submitted while the
record was closed was not considered, and notice of the options
available to have such evidence considered.
(Authority: 38 U.S.C. 5109A and 7105(d))
PART 8--NATIONAL SERVICE LIFE INSURANCE
0
26. The authority citation for part 8 continues to read as follows:
Authority: 38 U.S.C. 501, 1901-1929, 1981-1988, unless
otherwise noted.
0
27. Amend Sec. 8.30 by:
0
a. Revising the section heading;
0
b. Revising paragraphs (a), (b), and (c);
0
c. Adding paragraphs (d) through (h).
The revisions read as follows:
Sec. 8.30 Review of Decisions and Appeal to Board of Veterans'
Appeals.
(a) Decisions. This section pertains to insurance decisions
involving questions arising under Parts 6, 7, 8, and 8a of this
chapter, to include the denial of applications for insurance, total
disability income provision, or reinstatement; disallowance of claims
for insurance benefits; and decisions holding fraud or imposing
forfeiture. The applicant or claimant and his or her representative, if
any, will be notified in
[[Page 39849]]
writing of such a decision, which must include, in the notice letter or
enclosures or a combination thereof, all of the following elements:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered.
(3) A summary of the applicable laws and regulations relevant to
the decision.
(4) Identification of findings that are favorable to the claimant.
(5) For denials, identification of the element(s) not satisfied
that led to the denial.
(6) An explanation of how to obtain or access the evidence used in
making the decision.
(7) A summary of the applicable review options available for the
claimant to seek further review of the decision.
(b) Favorable findings. Any finding favorable to the claimant or
applicant is binding on all subsequent VA and Board of Veterans'
Appeals adjudicators, unless rebutted by clear and convincing evidence
to the contrary.
(c) Review of Decisions. Within one year from the date on which the
agency of original jurisdiction issues notice of an insurance decision
as outlined in paragraph (a) of this section, applicants or claimants
may elect one of the following administrative review options by timely
filing the appropriate form prescribed by the Secretary:
(1) Supplemental Claim Review. The nature of this review will
accord with Sec. 3.2501 of this title to the extent the terms used
therein apply to insurance matters.
(2) Request for a Higher-level Review. The nature of this review
will accord with Sec. 3.2601 of this title to the extent the terms
used therein apply to insurance matters. Higher-level reviews will be
conducted by an experienced decision-maker who did not participate in
the prior decision. Selection of an employee to conduct a higher-level
review is at VA's discretion.
(3) Board of Veterans' Appeals Review. See 38 CFR part 20.
(d) Part 3 provisions. See Sec. 3.2500(b)-(d) of this title for
principles that generally apply to a veteran's election of review of an
insurance decision.
(e) Applicability. This section applies where notice of an
insurance decision was provided to an applicant or claimant on or after
the effective date of the modernized review system as provided in Sec.
19.2(a) of this title, or where an applicant or claimant has elected
review of a legacy claim under the modernized review system as provided
in Sec. 3.2400(c) of this title.
(f) Unpaid premiums. When a claimant or applicant elects a review
option under paragraph (c) of this section, any unpaid premiums,
normally due under the policy from effective date of issue or
reinstatement (as appropriate), will become an interest-bearing lien,
enforceable as a legal debt due the United States and subject to all
available collection procedures in the event of a favorable result for
the claimant or applicant.
(g) Premium payments. Despite a claimant's or applicant's election
of a review option under paragraph (c) of this section, where the
agency of original jurisdiction's decision involved a change in or
addition to insurance currently in force, premium payments must be
continued on the existing contract.
(h) Section 1984. Nothing in this section shall limit an
applicant's or claimant's right to pursue actions under 38 U.S.C. 1984.
(Authority: 38 U.S.C. 501, 1901-1929, 1981-1988)
PART 14--LEGAL SERVICES, GENERAL COUNSEL, AND MISCELLANEOUS CLAIMS
0
28. The authority citation for part 14 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 2671-2680; 38 U.S.C. 501(a),
512, 515, 5502, 5901-5905; 28 CFR part 14, appendix to part 14,
unless otherwise noted.
0
29. Amend Sec. 14.629 by:
0
a. Removing the introductory text.
0
b. In paragraph (b)(5), removing the words ``General Counsel or his or
her designee'' and adding, in their place, the words ``Chief Counsel
with subject-matter jurisdiction''.
0
c. Adding new paragraph (d) to read as follows:
Sec. 14.629 Requirements for accreditation of service organization
representatives; agents; and attorneys.
* * * * *
(d) Decisions on applications for accreditation. The Chief Counsel
with subject-matter jurisdiction will conduct an inquiry and make an
initial determination regarding any question relating to the
qualifications of a prospective service organization representative,
agent, or attorney.
(1) If the Chief Counsel determines that the prospective service
organization representative, agent, or attorney meets the requirements
for accreditation in paragraphs (a) or (b) of this section,
notification of accreditation will be issued by the Chief Counsel and
will constitute authority to prepare, present, and prosecute claims
before an agency of original jurisdiction or the Board of Veterans'
Appeals.
(2)(i) If the Chief Counsel determines that the prospective
representative, agent, or attorney does not meet the requirements for
accreditation, notification will be issued by the Chief Counsel
concerning the reasons for disapproval, an opportunity to submit
additional information, and any restrictions on further application for
accreditation. If an applicant submits additional evidence, the Chief
Counsel will consider such evidence and provide further notice
concerning his or her final decision.
(ii) The determination of the Chief Counsel regarding the
qualifications of a prospective service organization representative,
agent, or attorney is a final adjudicative determination of an agency
of original jurisdiction that may only be appealed to the Board of
Veterans' Appeals.
0
30. In Sec. 14.631(c) revise the second sentence to read as
followings:
Sec. 14.631 Powers of attorney; disclosure of claimant information.
* * * * *
(c) * * * This section is applicable unless 38 CFR 20.6 governs
withdrawal from the representation.
* * * * *
Sec. 14.632 [Amended]
0
31. In Sec. 14.632(c)(6) remove the words ``representation provided
before an agency of original jurisdiction has issued a decision on a
claim or claims and a Notice of Disagreement has been filed with
respect to that decision'' and add, in their place, the words
``services for which a fee could not lawfully be charged''.
0
32. Amend Sec. 14.633 by:
0
a. In paragraph (e)(2)(i), adding the words ``before the Office of the
General Counsel'' after the words ``close the record''.
0
b. In paragraph (e)(2)(ii), adding the words ``before the Office of the
General Counsel'' after the words ``close the record''.
0
c. Revising paragraph (h).
0
d. In paragraph (i), adding the words ``suspended or'' before the word
``cancelled''.
0
e. Adding new paragraph (j).
The revision and addition read as follows:
Sec. 14.633 Termination of accreditation or authority to provide
representation under Sec. 14.630.
* * * * *
(h) The decision of the General Counsel is a final adjudicative
determination of an agency of original
[[Page 39850]]
jurisdiction that may only be appealed to the Board of Veterans'
Appeals.
(1) Decisions issued before the effective date of the modernized
review system. Notwithstanding provisions in this section for closing
the record before the Office of the General Counsel at the end of the
30-day period for filing an answer or 10 days after a hearing, appeals
of decisions issued before the effective date of the modernized review
system as provided in Sec. 19.2(a) of this chapter shall be initiated
and processed using the procedures in 38 CFR parts 19 and 20 applicable
to legacy appeals. Nothing in this section shall be construed to limit
the Board's authority to remand a matter to which this paragraph (h)(1)
applies to the General Counsel under 38 CFR 20.904 for any action that
is essential for a proper appellate decision or the General Counsel's
ability to issue a Supplemental Statement of the Case under 38 CFR
19.31.
(2) Decisions issued on or after the effective date of the
modernized review system. Notwithstanding provisions in this section
for closing the record before the Office of the General Counsel at the
end of the 30-day period for filing an answer or 10 days after a
hearing, appeals of decisions issued on or after the effective date of
the modernized review system as provided in Sec. 19.2(a) of this
chapter shall be initiated and processed using the procedures in 38 CFR
part 20 applicable to appeals under the modernized system.
* * * * *
(j) The effective date for suspension or cancellation of
accreditation or authority to provide representation on a particular
claim shall be the date upon which the General Counsel's final decision
is rendered.
* * * * *
0
33. Amend Sec. 14.636 by:
0
a. Revising paragraph (c).
0
b. In paragraph (h)(3), removing all references to ``reopened'' and
adding, in each place, the word ``readjudicated''.
0
c. Revising paragraph (i)(3).
0
d. Revising paragraph (k).
The revisions read as follows:
Sec. 14.636 Payment of fees for representation by agents and
attorneys in proceedings before Agencies of Original Jurisdiction and
before the Board of Veterans' Appeals.
* * * * *
(c) Circumstances under which fees may be charged. Except as noted
in paragraph (d) of this section, agents and attorneys may only charge
fees as follows:
(1)(i) Agents and attorneys may charge claimants or appellants for
representation provided after an agency of original jurisdiction has
issued notice of an initial decision on the claim or claims, including
any claim for an increase in rate of a benefit, if the notice of the
initial decision was issued on or after the effective date of the
modernized review system as provided in Sec. 19.2(a) of this chapter,
and the agent or attorney has complied with the power of attorney
requirements in Sec. 14.631 and the fee agreement requirements in
paragraph (g) of this section. For purposes of this paragraph
(c)(1)(i), a decision by an agency of original jurisdiction
adjudicating a supplemental claim will be considered the initial
decision on a claim unless that decision was made while the claimant
continuously pursued the claim by filing any of the following, either
alone or in succession: A request for higher-level review, on or before
one year after the date on which the agency of original jurisdiction
issued a decision; a supplemental claim, on or before one year after
the date on which the agency of original jurisdiction issued a
decision; a Notice of Disagreement, on or before one year after the
date on which the agency of original jurisdiction issued a decision; a
supplemental claim, on or before one year after the date on which the
Board of Veterans' Appeals issued a decision; or a supplemental claim,
on or before one year after the date on which the Court of Appeals for
Veterans Claims issued a decision.
(ii) Agents and attorneys may charge fees for representation
provided with respect to a request for revision of a decision of an
agency of original jurisdiction under 38 U.S.C. 5109A or the Board of
Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable
error if notice of the decision on a claim or claims was issued on or
after the effective date of the modernized review system as provided in
Sec. 19.2(a), and the agent or attorney has complied with the power of
attorney requirements in Sec. 14.631 and the fee agreement
requirements in paragraph (g) of this section.
(2)(i) Agents and attorneys may charge claimants or appellants for
representation provided: After an agency of original jurisdiction has
issued a decision on a claim or claims, including any claim to reopen
under 38 CFR 3.156(a) or for an increase in rate of a benefit; the
agency of original jurisdiction issued notice of that decision before
the effective date of the modernized review system as provided in Sec.
19.2(a) of this chapter; a Notice of Disagreement has been filed with
respect to that decision on or after June 20, 2007; and the agent or
attorney has complied with the power of attorney requirements in Sec.
14.631 and the fee agreement requirements in paragraph (g) of this
section.
(ii) Agents and attorneys may charge fees for representation
provided with respect to a request for revision of a decision of an
agency of original jurisdiction under 38 U.S.C. 5109A or the Board of
Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable
error if the agency of original jurisdiction issued notice of its
decision on such request before the effective date of the modernized
review system as provided in Sec. 19.2(a); a Notice of Disagreement
was filed with respect to the challenged decision on or after June 20,
2007; and the agent or attorney has complied with the power of attorney
requirements in Sec. 14.631 and the fee agreement requirements in
paragraph (g) of this section.
(3) In cases in which a Notice of Disagreement was filed on or
before June 19, 2007, agents and attorneys may charge fees only for
services provided after both of the following conditions have been met:
(i) A final decision was promulgated by the Board with respect to
the issue, or issues, involved in the appeal; and
(ii) The agent or attorney was retained not later than 1 year
following the date that the decision by the Board was promulgated.
(This condition will be considered to have been met with respect to all
successor agents or attorneys acting in the continuous prosecution of
the same matter if a predecessor was retained within the required time
period.)
(4) Except as noted in paragraph (i) of this section and Sec.
14.637(d), the agency of original jurisdiction that issued the decision
referenced in paragraphs (c)(1) or (2) of this section shall determine
whether an agent or attorney is eligible for fees under this section.
The agency of original jurisdiction's eligibility determination is a
final adjudicative action that may only be appealed to the Board.
* * * * *
(i) * * *
(3) The Office of the General Counsel shall close the record before
the Office of the General Counsel in proceedings to review fee
agreements 15 days after the date on which the agent or attorney served
a response on the claimant or appellant, or 30 days after the claimant,
appellant, or the Office of the General Counsel served the motion on
the agent or attorney if there is no response. The Deputy Chief Counsel
with subject-matter jurisdiction may, for a reasonable
[[Page 39851]]
period upon a showing of sufficient cause, extend the time for an agent
or attorney to serve an answer or for a claimant or appellant to serve
a reply. The Deputy Chief Counsel shall forward the record and a
recommendation to the General Counsel or his or her designee for a
final decision. Unless either party files a Notice of Disagreement, the
attorney or agent must refund any excess payment to the claimant or
appellant not later than the expiration of the time within which the
Office of the General Counsel's decision may be appealed to the Board
of Veterans' Appeals.
* * * * *
(k)(1) Decisions issued before the effective date of the modernized
review system. Notwithstanding provisions in this section for closing
the record before the Office of the General Counsel at the end of the
30-day period for serving a response or 15 days after the date on which
the agent or attorney served a response, appeals of decisions issued
before the effective date of the modernized review system as provided
in Sec. 19.2(a), shall be initiated and processed using the procedures
in 38 CFR parts 19 and 20 applicable to legacy appeals. Nothing in this
section shall be construed to limit the Board's authority to remand a
matter to the General Counsel under 38 CFR 20.904 for any action that
is essential for a proper appellate decision or the General Counsel's
ability to issue a Supplemental Statement of the Case under 38 CFR
19.31.
(2) Decisions issued on or after the effective date of the
modernized review system. Notwithstanding provisions in this section
for closing the record before the Office of the General Counsel at the
end of the 30-day period for serving a response or 15 days after the
date on which the agent or attorney served a response, appeals of
decisions issued on or after the effective date of the modernized
review system as provided in Sec. 19.2(a), shall be initiated and
processed using the procedures in 38 CFR part 20 applicable to appeals
under the modernized system.
* * * * *
0
34. Amend Sec. 14.637 by:
0
a. Revising paragraph (d)(3).
0
b. Revising paragraph (f).
The revisions read as follows:
Sec. 14.637 Payment of the expenses of agents and attorneys in
proceedings before Agencies of Original Jurisdiction and before the
Board of Veterans' Appeals.
* * * * *
* * * * *
(d) * * *
(3) The Office of the General Counsel shall close the record before
the Office of the General Counsel in proceedings to review expenses 15
days after the date on which the agent or attorney served a response on
the claimant or appellant, or 30 days after the claimant, appellant, or
the Office of the General Counsel served the motion on the agent or
attorney if there is no response. The Deputy Chief Counsel with
subject-matter jurisdiction may, for a reasonable period upon a showing
of sufficient cause, extend the time for an agent or attorney to serve
an answer or for a claimant or appellant to serve a reply. The Deputy
Chief Counsel shall forward the record and a recommendation to the
General Counsel or his or her designee for a final decision. Unless
either party files a Notice of Disagreement, the attorney or agent must
refund any excess payment to the claimant or appellant not later than
the expiration of the time within which the Office of the General
Counsel's decision may be appealed to the Board of Veterans' Appeals.
* * * * *
(f)(1) Decisions issued before the effective date of the modernized
review system. Notwithstanding provisions in this section for closing
the record before the Office of the General Counsel at the end of the
30-day period for serving a response or 15 days after the date on which
the agent or attorney served a response, appeals of decisions issued
before the effective date of the modernized review system as provided
in Sec. 19.2(a), shall be initiated and processed using the procedures
in 38 CFR parts 19 and 20 applicable to legacy appeals. Nothing in this
section shall be construed to limit the Board's authority to remand a
matter to the General Counsel under 38 CFR 20.904 for any action that
is essential for a proper appellate decision or the General Counsel's
ability to issue a Supplemental Statement of the Case under 38 CFR
19.31.
(2) Decisions issued on or after the effective date of the
modernized review system. Notwithstanding provisions in this section
for closing the record before the Office of the General Counsel at the
end of the 30-day period for serving a response or 15 days after the
date on which the agent or attorney served a response, appeals of
decisions issued on or after the effective date of the modernized
review system as provided in Sec. 19.2(a), shall be initiated and
processed using the procedures in 38 CFR part 20 applicable to appeals
under the modernized system.
PART 19--BOARD OF VETERANS' APPEALS: LEGACY APPEALS REGULATIONS
0
35. The authority citation for part 19, subpart A continues to read as
follows:
Authority: 38 U.S.C. 501(a), unless otherwise noted.
0
36. The heading for part 19 is revised as set forth above.
Subpart A--Applicability
0
37. The heading for subpart A is revised as set forth above.
Sec. 19.1 [Redesignated as Sec. 20.100 and Amended]
0
38. Redesignate Sec. 19.1 as Sec. 20.100 and revise the heading to
read ``Rule 100. Establishment of the Board.'' in the newly
redesignated Sec. 20.100.
Sec. 19.2 [Redesignated as Sec. 20.101 and Amended]
0
39. Redesignate Sec. 19.2 as Sec. 20.101; revise the heading to read
``Rule 101. Composition of the Board; Titles.''; in paragraph (b),
remove the word ``member'' and add in its place the word ``Member'' in
the newly redesignated Sec. 20.101.
Sec. 19.3 [Redesignated as Sec. 20.106 and Amended]
0
40. Redesignate Sec. 19.3 as Sec. 20.106 and revise the heading to
read ``Rule 106. Assignment of proceedings.'' in the newly redesignated
Sec. 20.106.
Sec. 19.4 [Redesignated as Sec. 20.103 and Amended]
0
41. Redesignate Sec. 19.4 as Sec. 20.103 and revise the heading to
read ``Rule 103. Principal functions of the Board.'' in the newly
redesignated Sec. 20.103.
Sec. 19.5 [Redesignated as Sec. 20.105 and Amended]
0
42. Redesignate Sec. 19.5 as Sec. 20.105; revise the heading to read
``Rule 105. Criteria governing disposition of appeals.''; in the first
sentence, add the text ``and in its decisions'' before the first comma
in the newly redesignated Sec. 20.105.
Sec. 19.7 [Redesignated as Sec. 20.903 and Amended]
0
43. Redesignate Sec. 19.7 as Sec. 20.903, and amend by:
0
a. Revising the heading to read ``Rule 903. The decision.''.
0
b. In the second sentence of paragraph (b), removing the words
``separately stated''.
0
c. Removing the authority citation at the end of paragraph (b);
0
d. Adding an authority citation at the end of the section to read as
follows:
[[Page 39852]]
(Authority: 38 U.S.C. 7104(d) (2016) in the newly redesignated Sec.
20.903)
Sec. 19.8 [Redesignated as Sec. 20.905 and Amended]
0
44. Redesignate Sec. 19.8 as Sec. 20.905 and revise the heading to
read ``Rule 905. Content of Board decision, remand, or order in
simultaneously contested claims.'' in the newly redesignated Sec.
20.905.
Sec. 19.9 [Redesignated as Sec. 20.904 and Amended]
0
45. Redesignate Sec. 19.9 as Sec. 20.904 and amend by:
0
a. Revising the heading to read ``Rule 904. Remand or referral for
further action.'';
0
b. In paragraph (c), removing the text ``subpart B of this part'' and
adding in its place the text ``part 19, subpart B of this chapter'';
0
c. In paragraph (c), removing the text ``Sec. 20.204'' and adding in
its place the text ``Sec. 19.55'';
0
d. In paragraph (d)(3), removing the text ``Sec. 20.1304(c) of this
chapter'' and adding in its place the text ``Rule 1305 (Sec.
20.1305(c) of this part)''; and
0
e. In paragraph (d)(4), removing the text ``Sec. 20.901 of this
chapter'' and adding in its place the text ``Rule 906 (Sec. 20.906 of
this part)''; and
0
f. Revising the authority citation to read as follows:
Sec. 20.904 Remand or referral for further action.
* * * * *
(Authority: 38 U.S.C. 7102, 7103(c); 38 U.S.C. 7104(a), 7105 (2016)
in the newly redesignated Sec. 20.904)
Sec. 19.11 [Redesignated as Sec. 20.1004 and Amended]
0
46. Redesignate Sec. 19.11 as Sec. 20.1004 and amend by:
0
a. Revising the heading to read ``Rule 1004. Reconsideration panel.''.
0
b. Removing the word ``heard'' in paragraph (b) and adding in its place
the word ``decided'' both places it appears in the newly redesignated
Sec. 20.1004.
Sec. 19.12 [Redesignated as Sec. 20.107 and Amended]
0
47. Redesignate Sec. 19.12 as Sec. 20.107 and amend by:
0
a. Revising the heading to read ``Rule 107. Disqualification of
Members.''.
0
b. Removing paragraph (b) and the authority citation following
paragraph (b);
0
c. Redesignating paragraph (c) as paragraph (b); and
0
d. In new paragraph (b), removing the text ``paragraphs (a) and (b)''
and adding in its place the text ``paragraph (a)'' in the newly
redesignated Sec. 20.107.
Sec. 19.13 [Redesignated as Sec. 20.108 and Amended]
0
48. Redesignate Sec. 19.13 as Sec. 20.108 and revise to heading to
read ``Rule 108. Delegation of authority to Chairman and Vice Chairman,
Board of Veterans' Appeals.'' in the newly redesignated Sec. 20.108.
Sec. 19.14 [Redesignated as Sec. 20.109 and Amended]
0
48a. Redesignate Sec. 19.14 as Sec. 20.109 and revise the newly
redesignated Sec. 20.109 to read as follows:
Sec. 20.109 Rule 109. Delegation of authority to Vice Chairman,
Deputy Vice Chairmen, or Members of the Board.
(a) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rules 106(b) and 107(b) (Sec. Sec.
20.106(b) and 20.107(b)) may also be exercised by the Vice Chairman of
the Board.
(b) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rules 1004 and 1002(c) (Sec. Sec.
20.1004 and 20.1002(c)) may also be exercised by the Vice Chairman of
the Board and by Deputy Vice Chairmen of the Board.
(c) The authority exercised by the Chairman of the Board of
Veterans' Appeals described in Rule 2 (Sec. 20.2), may also be
exercised by the Vice Chairman of the Board; by Deputy Vice Chairmen of
the Board; and, in connection with a proceeding or motion assigned to
them by the Chairman, by a Member or Members of the Board.
(Authority: 38 U.S.C. 512(a), 7102, 7104)
0
49. Add Sec. 19.1 to subpart A to read as follows:
Sec. 19.1 Provisions applicable to legacy appeals.
Part 19 and subparts F, G, and J of part 20 apply only to the
processing and adjudication of legacy appeals, as defined in Sec.
19.2. Except as otherwise provided in specific sections, subparts A, B,
H, K, L, M, N, and O of part 20 apply to the processing and
adjudication of both appeals and legacy appeals. For applicability
provisions concerning appeals in the modernized review system, see
Sec. 20.4 of this chapter.
0
50. Add Sec. 19.2 to subpart A to read as follows:
Sec. 19.2 Appellant's election for review of a legacy appeal in the
modernized system.
(a) Effective date. As used in this section, the effective date
means February 14, 2019, or the date that is published in the Federal
Register pursuant to Public Law 115-55, section 2, paragraph (x)(6),
whichever is later.
(b) Modernized review system. The modernized review system refers
to the current statutory framework for claims and appeals processing,
set forth in Public Law 115-55, and any amendments thereto, applicable
on the effective date. The modernized review system applies to all
claims, requests for reopening of finally adjudicated claims, and
requests for revision based on clear and unmistakable error for which
VA issues notice of an initial decision on or after the effective date,
or as otherwise provided in paragraph (d) of this section.
(c) Legacy appeals. A legacy appeal is an appeal of a legacy claim,
as defined in 38 CFR 3.2400(b), where a claimant has not elected to
participate in the modernized review system as provided in paragraph
(d) of this section. A legacy appeal is initiated by the filing of a
Notice of Disagreement and is perfected to the Board with the filing of
a Substantive Appeal pursuant to applicable regulations in accordance
with 38 CFR parts 19 and 20.
(d) Election into the modernized review system. The modernized
review system applies to legacy claims and appeals where:
(1) A claimant with a legacy claim or appeal elects the modernized
review system pursuant to 38 CFR 3.2400(c)(1);
(2) A claimant with a legacy claim or appeal elects the modernized
review system, following issuance, on or after the effective date, of a
VA Statement of the Case or Supplemental Statement of the Case. The
election is made by filing an appeal in accordance with 38 CFR 20.202,
or a review option in accordance with 38 U.S.C. 5108 or 5104B, as
implemented by 38 CFR 3.2500 and other applicable regulations. The
election must be filed within the time allowed for filing a substantive
appeal under Sec. 19.52(b); or
(3) VA issued notice of a decision prior to the effective date,
and, pursuant to the Secretary's authorization to participate in a test
program, the claimant elects the modernized review system by filing an
appeal in accordance with 38 U.S.C. 7105, or a review option in
accordance with 38 U.S.C. 5108 or 5104B.
(Authority: Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 5104B,
5104C(a); 5108; 38 U.S.C. 7105)
Sec. Sec. 19.3-19.19 [Reserved]
0
51. Reserve Sec. Sec. 19.3 through 19.19 to subpart A.
Subpart B--Legacy Appeals and Legacy Appeals Processing by Agency
of Original Jurisdiction
0
52. Revise the subpart B heading as set forth above.
[[Page 39853]]
Sec. 19.23 [Amended]
0
53. Amend Sec. 19.23 by:
0
a. In paragraph (a), by removing the words ``Sec. 20.201(a) of this
chapter'' and adding in their place the text ``Sec. 19.21(a)'' both
places they appear.
0
b. In paragraph (a), by removing the text ``, Sec. 19.27''.
0
c. In paragraph (b), by removing the text ``, Sec. 19.27''.
0
d. In paragraph (b), by removing the words ``Sec. 20.201(b) of this
chapter'' and adding in their place the text ``Sec. 19.21(b)''.
Sec. 19.24 [Amended]
0
54. Amend Sec. 19.24 by:
0
a. In paragraph (a), by removing the text ``Sec. 20.201(a) of this
chapter'' and adding in its place the text ``Sec. 19.21(a)'';
0
b. In paragraph (b)(1), by removing the text ``paragraph (a) of Sec.
20.201 of this chapter'' and adding in its place the text ``Sec.
19.21(a)''; and
0
c. In paragraph (b)(3), by removing the text ``Sec. 20.302(a) of this
chapter'' and adding in its place the text ``Sec. 19.52(a)''.
0
55. Amend Sec. 19.25 by revising the authority citation to read as
follows:
Sec. 19.25 Notification by agency of original jurisdiction of right
to appeal.
* * * * *
(Authority: 38 U.S.C. 7105(a) (2016))
0
56. Amend Sec. 19.26 by revising the authority citation to read as
follows:
Sec. 19.26 Action by agency of original jurisdiction on Notice of
Disagreement.
* * * * *
(Authority: 38 U.S.C. 501; 38 U.S.C. 7105, 7105A (2016))
Sec. 19.27 [Removed and Reserved]
0
57. Remove and reserve Sec. 19.27.
0
58. Amend Sec. 19.28 by revising the authority citation to read as
follows:
Sec. 19.28 Determination that a Notice of Disagreement is inadequate
protested by claimant or representative.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
0
59. Amend Sec. 19.29 by revising the authority citation to read as
follows:
Sec. 19.29 Statement of the Case.
* * * * *
(Authority: 38 U.S.C. 7105(d)(1) (2016))
0
60. Amend Sec. 19.30 by revising paragraph (b) and the authority
citation to read as follows:
Sec. 19.30 Furnishing the Statement of the Case and instructions for
filing a Substantive Appeal.
* * * * *
(b) Information furnished with the Statement of the Case. With the
Statement of the Case, the appellant and the representative will be
furnished information on the right to file, and time limit for filing,
a substantive appeal; information on hearing and representation rights;
and a VA Form 9, ``Appeal to Board of Veterans' Appeals'', and a
statement describing the available review options if the appellant
elects review of the issue or issues on appeal in the modernized review
system.
(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105; 38 U.S.C. 7105
(2016))
0
61. Amend Sec. 19.31 by:
0
a. Adding after the first sentence the text ``The information furnished
with the Supplemental Statement of the Case shall include a statement
describing the available review options if the appellant elects review
of the issue or issues on appeal in the modernized system.''.
0
b. Revising the authority citation to read as follows:
(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d) (2016))
0
62. Amend Sec. 19.32 by revising the authority citation to read as
follows:
Sec. 19.32 Closing of appeal for failure to respond to Statement of
the Case.
* * * * *
(Authority: 38 U.S.C. 7105(d)(3) (2016))
Sec. 19.33 [Removed and Reserved]
0
63. Remove and reserve Sec. 19.33.
0
64. Amend Sec. 19.34 by revising the authority citation to read as
follows:
Sec. 19.34 Determination that Notice of Disagreement or Substantive
Appeal was not timely filed protested by claimant or representative.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
Sec. 19.35 [Amended]
0
65. Amend Sec. 19.35 by:
0
a. Removing the second sentence;
0
b. Revising the authority citation to read as follows:
Sec. 19.35 Certification of appeals.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
Sec. 19.36 [Amended]
0
66. Amend Sec. 19.36 by:
0
a. Removing the text ``Rule of Practice 1304 (Sec. 20.1304 of this
chapter)'' from the first sentence and adding in its place the text
``Rule 1305 (Sec. 20.1305 of this chapter)''; and by removing the text
``Sec. 20.1304'' from the second sentence and adding in its place the
text ``Sec. 20.1305'';
0
b. Revising the authority citation to read as follows:
Sec. 19.36 Notification of certification of appeal and transfer of
appellate record.
* * * * *
(Authority: 38 U.S.C. 5902, 5903; 38 U.S.C. 5904, 7105 (2016))
0
67. Amend Sec. 19.37 by revising the authority citation to read as
follows:
Sec. 19.37 Consideration of additional evidence received by the
agency of original jurisdiction after an appeal has been initiated.
* * * * *
(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 7105(d)(1) (2016))
0
68. Amend Sec. 19.38 by:
0
a. Removing the text ``Rule of Practice 302, paragraph (c) (Sec.
20.302(c) of this chapter)'' and adding in its place the text ``Sec.
19.52(c)''
0
b. Revising the authority citation to read as follows:
Sec. 19.38 Action by agency of original jurisdiction when remand
received.
* * * * *
(Authority: 38 U.S.C. 7105(d)(1) (2016))
Subpart C--Claimant Action in a Legacy Appeal
0
69. Revise the subpart C heading as set forth above.
Sec. Sec. 19.50-19.53 [Removed]
0
70. Remove Sec. Sec. 19.50 through 19.53.
Subpart D [Removed and Reserved]
0
71. Remove and reserve Subpart D, consisting of Sec. Sec. 19.75
through 19.99.
Subpart E--Simultaneously Contested Claims
0
72. Amend Sec. 19.100 by revising the authority citation to read as
follows:
Sec. 19.100 Notification of right to appeal in simultaneously
contested claims.
* * * * *
(Authority: 38 U.S.C. 7105A(a) (2016))
0
73. Amend Sec. 19.101 by revising the authority citation to read as
follows:
Sec. 19.101 Notice to contesting parties on receipt of Notice of
Disagreement in simultaneously contested claims.
* * * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
0
74. Amend Sec. 19.102 by revising the authority citation to read as
follows:
Sec. 19.102 Notice of appeal to other contesting parties in
simultaneously contested claims.
* * * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
[[Page 39854]]
Sec. Sec. 19.103-19.199 [Added and Reserved]
0
75. Add and reserve Sec. Sec. 19.103 through 19.199.
0
76. Remove Appendix A to Part 19--Cross-References.
PART 20--BOARD OF VETERANS' APPEALS: RULES OF PRACTICE
0
77. 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 A--General
Sec. 20.1 [Amended]
0
78. Amend Sec. 20.1 by adding the text ``(Board)'' after the text
``Board of Veterans' Appeals''.
0
79. Amend Sec. 20.3 by:
0
a. Revising paragraphs (b), (c) and (f);
0
b. Removing paragraph (h);
0
c. Redesignating paragraph (i) as paragraph (h) and revising the
introductory text to read: ``Hearing on appeal or Board hearing'', and
removing the text ``argument and/or'';
0
d. Removing paragraphs (j) and (k);
0
e. Redesignating paragraph (l) as paragraph (i) and revising the second
sentence to read: ``For example, a request to correct a hearing
transcript (see Rule 714 (Sec. 20.714)) is raised by motion.'';
0
f. Removing paragraph (m);
0
g. Redesignating paragraph (n) as paragraph (j) and removing the word
``reopened'' and adding in its place the word ``readjudicated''.
0
h. Redesignating paragraph (o) as paragraph (k);
0
i. Redesignating paragraph (p) as paragraph (l);
0
j. Redesignating paragraph (q) as paragraph (m);
The revisions read as follows:
Sec. 20.3 Rule 3. Definitions.
* * * * *
(b) Agent means a person who has met the standards and
qualifications for accreditation outlined in Sec. 14.629(b) of this
chapter and who has been properly designated under the provisions of
Sec. 14.631 of this chapter. It does not include representatives
accredited under Sec. 14.629(a) of this chapter, attorneys accredited
under Sec. 14.629(b) of this chapter, or a person authorized to
represent a claimant for a particular claim under Sec. 14.630 of this
chapter.
(c) Appellant means a claimant who has filed an appeal to the Board
of Veterans' Appeals either as a legacy appeal or in the modernized
review system, as those terms are defined in Sec. 19.2 of this
chapter, and Rule 4 (Sec. 20.4 of this part), respectively.
* * * * *
(f) Claim means a written communication requesting a determination
of entitlement or evidencing a belief in entitlement, to a specific
benefit under the laws administered by the Department of Veterans
Affairs submitted on an application form prescribed by the Secretary.
* * * * *
0
80. Add new Sec. 20.4 to read as follows:
Sec. 20.4 Rule 4. Appeal systems definitions and applicability
provisions.
(a) Appeal. (1) In general. An appeal consists of a Notice of
Disagreement timely filed to the Board on any issue or issues for which
VA provided notice of a decision under 38 U.S.C. 5104 on or after the
effective date, as defined in Sec. 19.2(a) of this chapter.
(2) Appellant's election for review of a legacy claim or appeal in
the modernized review system. The regulations applicable to appeals are
also applicable to legacy claims and appeals, as those terms are
defined in Sec. Sec. 3.2400(b) and 19.2(c) of this chapter, where the
claimant elects the modernized review system pursuant to Sec. 19.2(d)
of this chapter, and upon the timely filing to the Board of a Notice of
Disagreement.
(b) Applicability of parts 19 and 20. (1) Appeals. Subparts C, D,
E, and I of part 20 apply only to the processing and adjudication of
appeals in the modernized review system.
(2) Legacy claims and appeals. Part 19 and subparts F, G, and J of
part 20 apply only to the processing and adjudication of legacy claims
and appeals.
(3) Both appeals systems. Except as otherwise provided in specific
sections, subparts A, B, H, K, L, M, N, and O of part 20 apply to the
processing and adjudication of both appeals and legacy claims and
appeals.
(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)
Subpart B--The Board
Sec. 20.102 [Removed]
0
81. Remove Sec. 20.102.
0
82. Redesignate Sec. 20.100 as Sec. 20.102, and revise paragraph (c)
in the newly redesignated Sec. 20.102 to read as follows:
Sec. 20.102 Rule 102. Name, business hours, and mailing address of
the Board.
* * * * *
(c) Mailing address. The mailing address of the Board is: Board of
Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Mail to the
Board that is not related to an appeal must be addressed to: Board of
Veterans' Appeals, 810 Vermont Avenue NW, Washington, DC 20420.
0
83. Redesignate Sec. 20.101 as Sec. 20.104, and amend by:
0
a. Removing the third sentence of paragraph (a);
0
b. Redesignating paragraph (c) as paragraph (d)(1), revising the
paragraph heading and the first sentence, and add an authority citation
in the newly designated paragraph (d)(1);
0
c. Redesignating paragraph (d) as paragraph (c) and revising the first
sentence of the newly redesignated paragraph (c);
0
d. Redesignating paragraph (e) as paragraph (d)(2) and revising the
newly redesignated paragraph (d)(2).
The revisions read as follows:
Sec. 20.104 Rule 104. Jurisdiction of the Board.
* * * * *
(c) * * *
The Board shall decide all questions pertaining to its
jurisdictional authority to review a particular case.
* * * * *
(d)(1) Appeals as to jurisdiction in legacy claims and appeals. All
claimants in legacy appeals, as defined in Sec. 19.2 of this chapter,
have the right to appeal a determination made by the agency of original
jurisdiction that the Board does not have jurisdictional authority to
review a particular case.
* * * * *
(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)
(2) Application of 20.904 and 20.1305. Section 20.904 of this part
shall not apply to proceedings to determine the Board's own
jurisdiction. However, the Board may remand a case to an agency of
original jurisdiction in order to obtain assistance in securing
evidence of jurisdictional facts. The time restrictions on requesting a
hearing and submitting additional evidence in Sec. 20.1305 of this
part do not apply to a hearing requested, or evidence submitted, under
paragraph (c) of this section.
(Authority: 38 U.S.C. 511(a), 7104, 7105, 7108)
Subpart C--Commencement and Filing of Appeals
0
84. Revise the subpart heading as set forth above.
0
85. Redesignate Sec. 20.200 as Sec. 19.20 and amend by:
0
a. Revising the section heading.
0
b. In the introductory text removing the text ``Sec. 20.201'' and
adding in its place the text ``Sec. 19.21'', removing the text ``Sec.
20.302(a)'' and adding in its place the text ``Sec. 19. 52(a)'' and
adding the text ``of this chapter'' after the text ``of Sec.
20.501(a)''.
[[Page 39855]]
0
c. Revising the authority citation;
The revisions read as follows:
Sec. 19.20 What constitutes an appeal.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
0
86. Redesignate Sec. 20.201 as Sec. 19.21 and amend by:
0
a. Revising the section heading;
0
b. In paragraph (a)(5), removing the text ``Sec. 20.302(a)'' and
adding in its place the text ``Sec. 19.52(a)'';
0
c. In paragraph (c), removing the text ``Sec. Sec. 20.500 and 20.501''
and adding in its place the text ``Rules 500 and 501 (Sec. Sec. 20.500
and 20.501 of this chapter)'';
0
d. Revising the authority citation;
The revisions to read as follows:
Sec. 19.21 Notice of Disagreement.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
0
87. Redesignate Sec. 20.202 as Sec. 19.22 and amend by revising the
section heading and authority citation to read as follows:
Sec. 19.22 Substantive Appeal.
* * * * *
(Authority: 38 U.S.C. 7105(d)(3)-(5) (2016))
0
88. Redesignate Sec. 20.204 as Sec. 19.55 and amend by:
0
a. Revising the section heading;
0
b. In paragraph (b)(1), revising the introductory text to read
``Content'', removing the first sentence, removing the word ``They''
from the second sentence and adding in its place the words ``Appeal
withdrawals'';
0
c. In paragraph (b)(2), revising the last sentence;
0
d. In paragraph (b)(3) removing the word ``part'' and adding in its
place the word ``chapter''; and
0
e. Revising the authority citation to read as follows:
0
f. Removing ``[68 FR 13236, Mar. 19, 2003, as amended at 81 FR 32649,
May 24, 2016]'' from the end of the paragraph.
The revisions read as follows:
Sec. 19.55 Withdrawal of Appeal.
* * * * *
(b) * * *
(1) Content.
* * * * *
(2) * * *
* * * * *
Thereafter, file the withdrawal at the Board.
* * * * *
(Authority 38 U.S.C. 7105(b), (d) (2016))
0
89. Revise subpart C to read as follows:
Sec. 20.200 Rule 200. Notification by agency of original jurisdiction
of right to appeal.
The claimant and his or her representative, if any, will be
informed of appellate rights provided by 38 U.S.C. chapters 71 and 72,
including the right to a personal hearing and the right to
representation. The agency of original jurisdiction will provide this
information in each notification of a determination of entitlement or
nonentitlement to Department of Veterans Affairs benefits, pursuant to
38 U.S.C. 5104, 5104B, and 5108.
(Authority: 38 U.S.C. 7105(a))
Sec. 20.201 Rule 201. What constitutes an appeal.
An appeal of a decision by the agency of original jurisdiction
consists of a Notice of Disagreement submitted to the Board in
accordance with the provisions of Sec. Sec. 20.202-20.204.
(Authority: 38 U.S.C. 7105)
Sec. 20.202 Rule 202. Notice of Disagreement.
(a) In General. A Notice of Disagreement must be properly completed
on a form prescribed by the Secretary. If the agency of original
jurisdiction decision addressed several issues, the Notice of
Disagreement must identify the specific determination or determinations
with which the claimant disagrees. The Board will construe such
arguments in a liberal manner for purposes of determining whether they
raise issues on appeal, but the Board may dismiss any appeal which
fails to identify the specific determination with which the claimant
disagrees.
(b) Upon filing the Notice of Disagreement, a claimant must
indicate whether the claimant requests:
(1) Direct review by the Board of the record before the agency of
original jurisdiction at the time of its decision, without submission
of additional evidence or a Board hearing;
(2) A Board hearing, to include an opportunity to submit additional
evidence at the hearing and within 90 days following the hearing; or
(3) An opportunity to submit additional evidence without a Board
hearing with the Notice of Disagreement and within 90 days following
receipt of the Notice of Disagreement.
(c)(1) The information indicated by the claimant in paragraph (b)
of this section determines the evidentiary record before the Board as
described in subpart D of this part, and the docket on which the appeal
will be placed, as described in Rule 800 (Sec. 20.800). Except as
otherwise provided in paragraph (2) of this section, the Board will not
consider evidence as described in Rules 302 or 303 (Sec. Sec. 20.302
and 20.303) unless the claimant requests a Board hearing or an
opportunity to submit additional evidence on the Notice of
Disagreement.
(2) A claimant may modify the information identified in the Notice
of Disagreement for the purpose of selecting a different evidentiary
record option as described in paragraph (b) of this section. Requests
to modify a Notice of Disagreement must be in writing, must clearly
identify the option listed in paragraph (b) of this section that the
appellant requests, and must be received at the Board within one year
from the date that the agency of original jurisdiction mails notice of
the decision on appeal, or within 30 days of the date that the Board
receives the Notice of Disagreement, whichever is later. Requests to
modify a Notice of Disagreement will not be granted if the appellant
has submitted evidence or testimony as described in Sec. Sec. 20.302
and 20.303.
(d) The Board will not accept as a Notice of Disagreement an
expression of dissatisfaction or disagreement with an adjudicative
determination by the agency of original jurisdiction and a desire to
contest the result that is submitted in any format other than the form
prescribed by the Secretary, including on a different VA form.
(e) Alternate form or other communication. The filing of an
alternate form or other communication will not extend, toll, or
otherwise delay the time limit for filing a Notice of Disagreement, as
provided in Sec. 20.203(b). In particular, returning the incorrect VA
form does not extend, toll, or otherwise delay the time limit for
filing the correct form.
(f) Unclear Notice of Disagreement. If within one year after
mailing an adverse decision (or 60 days for simultaneously contested
claims), the Board receives a Notice of Disagreement completed on the
form prescribed by the Secretary, but the Board cannot identify which
denied issue or issues the claimant wants to appeal or which option the
claimant intends to select under paragraph (b) of this section, then
the Board will contact the claimant to request clarification of the
claimant's intent.
(g) Response required from claimant--(1) Time to respond. The
claimant must respond to the Board's request for clarification on or
before the later of the following dates:
(i) 60 days after the date of the Board's clarification request; or
(ii) One year after the date of mailing of notice of the adverse
decision being appealed (60 days for simultaneously contested claims).
[[Page 39856]]
(2) Failure to respond. If the claimant fails to provide a timely
response, the previous communication from the claimant will not be
considered a Notice of Disagreement as to any claim for which
clarification was requested. The Board will not consider the claimant
to have appealed the decision(s) on any claim(s) as to which
clarification was requested and not received.
(h) Action following clarification. The unclear Notice of
Disagreement is properly completed, and thereby filed, under paragraph
(a) of this section when the Board receives the clarification.
(i) Representatives and fiduciaries. For the purpose of the
requirements in paragraphs
(f) through (h) of this section, references to the ``claimant''
include reference to the claimant or his or her representative, if any,
or to his or her fiduciary, if any, as appropriate.
(Authority: 38 U.S.C. 7105)
[Approved by the Office of Management and Budget under control
number 2900-0085]
Sec. 20.203 Rule 203. Place and time of filing Notice of
Disagreement.
(a) Place of filing. The Notice of Disagreement must be filed with
the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
(b) Time of filing. Except as provided in Sec. 20.402 for
simultaneously contested claims, a claimant, or his or her
representative, must file a properly completed Notice of Disagreement
with a determination by the agency of original jurisdiction within one
year from the date that the agency mails the notice of the
determination. 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.
(Authority: 38 U.S.C. 7105)
Sec. 20.204 Rule 204. Who can file a Notice of Disagreement.
(a) Persons authorized. A Notice of Disagreement may be filed by a
claimant personally, or by his or her representative if a proper Power
of Attorney is on record or accompanies such Notice of Disagreement.
(b) Claimant rated incompetent by Department of Veterans Affairs or
under disability and unable to file. If an appeal is not filed by a
person listed in paragraph (a) of this section, and the claimant is
rated incompetent by the Department of Veterans Affairs or has a
physical, mental, or legal disability which prevents the filing of an
appeal on his or her own behalf, a Notice of Disagreement may be filed
by a fiduciary appointed to manage the claimant's affairs by the
Department of Veterans Affairs or a court, or by a person acting as
next friend if the appointed fiduciary fails to take needed action or
no fiduciary has been appointed.
(c) Claimant under disability and able to file. Notwithstanding the
fact that a fiduciary may have been appointed for a claimant, an appeal
filed by a claimant will be accepted.
(Authority: 38 U.S.C. 7105(b)(2)(A))
Sec. 20.205 Rule 205. 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) Content. Appeal withdrawals 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
Board.
(3) When effective. An appeal withdrawal is effective when received
by the Board. A withdrawal received after the Board issues a final
decision under Rule 1100(a) (Sec. 20.1100(a)) will not be effective.
(c) Effect of filing. Withdrawal of an appeal will be deemed a
withdrawal of the Notice of Disagreement as to all issues to which the
withdrawal applies. Withdrawal does not preclude filing a new Notice of
Disagreement pursuant to this subpart, a request for higher-level
review under 38 U.S.C. 5104B, or a supplemental claim under 38 U.S.C.
5108, as to any issue withdrawn, provided such filing would be timely
under these rules if the withdrawn appeal had never been filed.
(Authority: 38 U.S.C. 7105)
Sec. Sec. 20.206-20.299 [Reserved]
Subpart D--Evidentiary Record
0
90. Revise the subpart D heading to read as set forth above.
0
91. Redesignate Sec. 20.300 as Sec. 19.51, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.
19.51 to read as follows:
Sec. 19.51 Place of filing Notice of Disagreement and Substantive
Appeal.
* * * * *
(Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016))
0
92. Redesignate Sec. 20.301 as Sec. 19.50, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.
19.50 to read as follows:
Sec. 19.50 Who can file an appeal.
* * * * *
(Authority: 38 U.S.C. 7105(b)(2) (2016))
0
93. Redesignate Sec. 20.302 as Sec. 19.52, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citations of paragraphs (a)-(c) in the newly
redesignated Sec. 19.52 to read as follows:
Sec. 19.52 Time limit for filing Notice of Disagreement, Substantive
Appeal, and response to Supplemental Statement of the Case.
(a) * * *
(Authority: 38 U.S.C. 7105(b)(1) (2016))
(b) * * *
(Authority: 38 U.S.C. 7105(b)(1), (d)(3) (2016))
(c) * * *
(Authority: 38 U.S.C. 7105(d)(3) (2016))
0
94. Redesignate Sec. 20.303 as Sec. 19.53, and amend by:
0
a. Revising the section heading.
0
b. Revising the authority citation of the newly redesignated Sec.
19.53 to read as follows:
Sec. 19.53 Extension of time for filing Substantive Appeal and
response to Supplemental Statement of the Case.
* * * * *
(Authority: 38 U.S.C. 7105(d)(3) (2016))
0
95. Redesignate Sec. 20.304 as Sec. 19.54 and amend by:
0
a. Revising the section heading.
0
b. In the introductory text removing the text ``Rule 302(b) (Sec.
20.302(b) of this part)'' and adding in its place the text ``Sec.
19.52(b)''.
0
c. Revising the authority citation of the newly redesignated Sec.
19.54 to read as follows:
Sec. 19.54 Filing additional evidence does not extend time limit for
appeal.
* * * * *
(Authority: 38 U.S.C. 7105 (2016))
0
96. Redesignate Sec. 20.305 as Sec. 20.110, and revise the section
heading by removing the words ``Rule 305'' and adding in their place
the words ``Rule 110'' in the newly redesignated Sec. 20.110.
[[Page 39857]]
0
97. Redesignate Sec. 20.306 as Sec. 20.111 and amend by:
0
a. In the section heading removing the words ``Rule 306'' and adding in
their place the words ``Rule 111''.
0
b. In the introductory text removing the words ``Rule 305 (Sec.
20.305)'' and adding in their place the words ``Rule 110 (Sec.
20.110)'' in the newly redesignated Sec. 20.111.
0
98. Add Sec. Sec. 20.300-20.303 to read as follows:
Sec. 20.300 Rule 300. General.
Decisions of the Board will be based on a de novo review of the
evidence of record at the time of the agency of original jurisdiction
decision on the issue or issues on appeal, and any additional evidence
or testimony submitted pursuant to this subpart, as provided in Sec.
20.801.
(Authority: 38 U.S.C. 7104)
Sec. 20.301 Rule 301. Appeals with no request for a Board hearing and
no additional evidence.
For appeals in which the appellant requested, on the Notice of
Disagreement, direct review by the Board without submission of
additional evidence and without a Board hearing, the Board's decision
will be based on a review of the evidence of record at the time of the
agency of original jurisdiction decision on the issue or issues on
appeal.
(Authority: 38 U.S.C. 7105, 7107, 7113(a))
Sec. 20.302 Rule 302. Appeals with a request for a Board hearing.
(a) Except as described in paragraphs (b) and (c) of this section,
for appeals in which the appellant requested, on the Notice of
Disagreement, a Board hearing, the Board's decision will be based on a
review of the following:
(1) Evidence of record at the time of the agency of original
jurisdiction's decision on the issue or issues on appeal;
(2) Evidence submitted by the appellant or his or her
representative at the hearing, to include testimony provided at the
hearing; and
(3) Evidence submitted by the appellant or his or her
representative within 90 days following the hearing.
(b) In the event that the hearing request is withdrawn pursuant to
Sec. 20.704(e), the Board's decision will be based on a review of
evidence described in paragraph (a)(1) of this section, and evidence
submitted by the appellant or his or her representative within 90 days
following receipt of the withdrawal.
(c) In the event that the appellant does not appear for a scheduled
hearing, and the hearing is not rescheduled subject to Sec. 20.704(d),
the Board's decision will be based on a review of evidence described in
paragraph (a)(1) of this section, and evidence submitted by the
appellant or his or her representative within 90 days following the
date of the scheduled hearing.
(Authority: 38 U.S.C. 7105, 7107, 7113(b))
Sec. 20.303 Rule 303. Appeals with no request for a Board hearing,
but with a request for submission of additional evidence.
For appeals in which the appellant requested, on the Notice of
Disagreement, an opportunity to submit additional evidence without a
Board hearing, the Board's decision will be based on a review of the
following:
(a) Evidence of record at the time of the agency of original
jurisdiction's decision on the issue or issues on appeal; and
(b) Evidence submitted by the appellant or his or her
representative:
(1) With the Notice of Disagreement or within 90 days following
receipt of the Notice of Disagreement; or,
(2) If the appellant did not request an opportunity to submit
additional evidence on the Notice of Disagreement, but subsequently
requested to submit additional evidence pursuant to Rule 202, (Sec.
20.202 (c)(2)(ii)), within 90 days following VA's notice that the
appeal has been moved to the docket described in Sec. 20.800(a)(ii).
(Authority: 38 U.S.C. 7105, 7107, 7113(c))
Sec. Sec. 20.304-20.306 [Added and Reserved]
0
99. Add and reserve Sec. Sec. 20.304 through 20.306.
Subpart E--Appeal in Simultaneously Contested Claims
0
100. Revise the subpart E heading to read as set forth above.
Sec. Sec. 20.400 and 20.401 [Removed]
0
101. Remove Sec. Sec. 20.400 and 20.401.
0
102. Add Sec. Sec. 20.400 through 20.407 to read as follows:
Sec. 20.400 Rule 400. Notification of the right to appeal in a
simultaneously contested claim.
All interested parties will be specifically notified of the action
taken by the agency of original jurisdiction in a simultaneously
contested claim and of the right and time limit for submitting a Notice
of Disagreement to the Board, as well as hearing and representation
rights.
Sec. 20.401 Rule 401. Who can file an appeal in simultaneously
contested claims.
In simultaneously contested claims, any claimant or representative
of a claimant may file a Notice of Disagreement within the time limits
set out in Rule 402 (Sec. 20.402).
(Authority: 38 U.S.C. 7105(b)(2), 7105A)
Sec. 20.402 Rule 402. Time limits for filing Notice of Disagreement
in simultaneously contested claims.
In simultaneously contested claims, the Notice of Disagreement from
the person adversely affected must be filed within 60 days from the
date of mailing of the notification of the determination to him or her;
otherwise, that determination will become final. The date of mailing of
the letter of notification will be presumed to be the same as the date
of that letter for purposes of determining whether a Notice of
Disagreement has been timely filed.
(Authority: 38 U.S.C. 7105A)
Sec. 20.403 Rule 403. Notice to contesting parties on receipt of
Notice of Disagreement in simultaneously contested claims.
Upon the filing of a Notice of Disagreement in a simultaneously
contested claim, all interested parties and their representatives will
be furnished a copy of the substance of the Notice of Disagreement. The
notice will inform the contesting party or parties of what type of
review the appellant who initially filed a Notice of Disagreement
selected under Sec. 20.202(b), including whether a hearing was
requested.
(Authority: 38 U.S.C. 7105A)
Sec. 20.404 Rule 404. Time limit for response to appeal by another
contesting party in a simultaneously contested claim.
A party to a simultaneously contested claim may file a brief,
argument, or request for a different type of review under Sec.
20.202(b) in answer to a Notice of Disagreement filed by another
contesting party. Any such brief, argument, or request must be filed
with the Board within 30 days from the date the content of the Notice
of Disagreement is furnished as provided in Sec. 20.403. Such content
will be presumed to have been furnished on the date of the letter that
accompanies the content.
(Authority: 38 U.S.C. 7105A(b)(1))
Sec. 20.405 Rule 405. Docketing of simultaneously contested claims
at the Board.
After expiration of the 30 day period for response in Sec. 20.404,
the Board will place all parties of the simultaneously contested claim
on the docket for the type of review requested under Sec. 20.202(b).
In the event the parties request different types of review, if any
party requests a hearing the appeal will be placed on the docket
described in
[[Page 39858]]
Sec. 20.800(a)(iii), and VA will notify the parties that a hearing
will be scheduled. If no party requested a hearing, but any party
requested the opportunity to submit additional evidence, the appeal
will be placed on the docket described in Sec. 20.800(a)(ii), and the
parties will be notified of their opportunity to submit additional
evidence within 90 days of the date of such notice.
(Authority: 38 U.S.C. 7105A(b)(1))
Sec. 20.406 Rule 406. Notices sent to last addresses of record in
simultaneously contested claims.
Notices in simultaneously contested claims will be forwarded to the
last address of record of the parties concerned and such action will
constitute sufficient evidence of notice.
Sec. 20.407 Rule 407. Favorable Findings are not binding in Contested
Claims.
Where a claim is contested, findings favorable to either party, as
described in Rule 801 (Sec. 20.801), are no longer binding on all VA
and Board of Veterans' Appeals adjudicators during the pendency of the
contested appeal.
(Authority: 38 U.S.C. 7105A(b)(2))
Subpart F--Legacy Appeal in Simultaneously Contested Claims
0
103. Revise the subpart F heading to read as set forth above.
0
104. Redesignate Sec. 20.500 as Sec. 20.501 and amend by:
0
a. In the section heading removing the words ``Rule 500'' and adding in
their place the words ``Rule 501''.
0
b. In the introductory text removing the words ``Rule 501 (Sec. 20.501
of this part)'' and adding in their place the words ``Rule 502 (Sec.
20.502)'';
0
c. Revising the authority citation of the newly redesignated Sec.
20.501 to read as follows:
Sec. 20.501 Who can file an appeal in simultaneously contested
claims.
* * * * *
(Authority: 38 U.S.C. 7105(b)(2), 7105A (2016))
0
105. Add new Sec. 20.500 to read as follows:
Sec. 20.500 Rule 500. Applicability.
The provisions of this subpart apply to legacy appeals, as defined
in Sec. 19.2 of this chapter.
0
106. Redesignate Sec. 20.501 as Sec. 20.502 and amend by:
0
a. In the section heading removing the words ``Rule 501'' and adding in
their place the words ``Rule 502''.
0
b. In paragraphs (a) through (c), revise the authority citations of the
newly redesignated Sec. 20.502 to read as follows:
(a) * * *
(Authority: 38 U.S.C. 7105A(a) (2016))
(b) * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
(c) * * *
(Authority: 38 U.S.C. 38 U.S.C. 7105(d)(3), 7105A(b) (2016))
0
107. Redesignate Sec. 20.502 as Sec. 20.503, and amend by:
0
a. In the section heading removing the words ``Rule 502'' and adding in
their place the words ``Rule 503''.
0
b. Revising the authority citation of the newly redesignated Sec.
20.503 to read as follows:
Sec. 20.503 Rule 503. Time limit for response to appeal by another
contesting party in a simultaneously contested claim.
* * * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
0
108. Redesignate Sec. 20.503 as Sec. 20.504, and amend by:
0
a. In the section heading removing the words ``Rule 503'' and adding in
their place the words ``Rule 504''.
0
b. Revising the authority citation of the newly redesignated Sec.
20.504 to read as follows:
Sec. 20.504 Rule 504. Extension of time for filing a Substantive
Appeal in simultaneously contested claims.
* * * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
0
109. Redesignate Sec. 20.504 as Sec. 20.505, and
0
a. In the section heading removing the words ``Rule 504'' and adding in
their place the words ``Rule 505''.
0
b. Revising the authority citation of the newly redesignated Sec.
20.505 to read as follows:
Sec. 20.505 Rule 505. Notices sent to last addresses of record in
simultaneously contested claims.
* * * * *
(Authority: 38 U.S.C. 7105A(b) (2016))
Subpart G--Legacy Hearings on Appeal
0
110. Revise the subpart G heading to read as set forth above.
0
111. Redesignate Sec. 20.600 as Sec. 20.5, and revise the section
heading by removing the words ``Rule 600'' and adding in their place
the words ``Rule 5''.
0
112. Redesignate Sec. 20.608 as Sec. 20.6 and amend by:
0
a. Revising the section heading by removing the words ``Rule 608'' and
adding in their place the words ``Rule 6''.
0
b. Redesignating paragraph (a) as paragraph (b), and removing the words
``an appeal'' both places it appears and adding in its place the words
``a legacy appeal'';
0
c. Redesignating paragraph (b) as paragraph (a);
0
d. In new paragraph (a), remove the heading;
0
e. In new paragraph (a)(1), removing the words ``Sec. 20.602 through
20.605 of this part'' and adding in its place the words ``Sec. 14.630
or Sec. 14.631 of this chapter'';
0
f. In new paragraph (a)(2), removing the words ``After the agency of
original jurisdiction has certified an appeal to the Board of Veterans'
Appeals'' and adding in its place the words ``Except as otherwise
provided in paragraph (b) of this section, after an appeal to the Board
of Veterans' Appeals has been filed''; and
0
g. In new paragraph (a)(2), removing the words ``Office of the
Principal Deputy Vice Chairman (01C),''.
0
113. Remove the Note to subpart G.
0
114. Add new Sec. 20.600 to read as follows:
Sec. 20.600 Rule 600. Applicability.
(a) The provisions in this subpart apply to Board hearings
conducted in legacy appeals, as defined in Sec. 19.2 of this chapter.
(b) Except as otherwise provided, Rules 700, 701, 704, 705, and
707-715 (Sec. Sec. 20.700, 20.701, 20.704, 20.705, and 20.707-20.715)
are also applicable to Board hearings conducted in legacy appeals.
0
115. Reserve Sec. Sec. 20.606-20.699.
Subpart H--Hearings on Appeal.
0
116. Amend Sec. 20.700 by:
0
a. Removing paragraphs (d) and (e); and
0
b. Revising paragraphs (a) and (b) to read as follows:
Sec. 20.700 Rule 700. General.
(a) Right to a hearing. A hearing on appeal will be granted if an
appellant, or an appellant's representative acting on his or her
behalf, expresses a desire to testify before the Board.
(b) Purpose of hearing. The purpose of a hearing is to receive
argument and testimony relevant and material to the appellate issue or
issues. It is contemplated that the appellant and witnesses, if any,
will be present. A hearing will not normally be scheduled solely for
the purpose of receiving argument by a representative. Such argument
may be submitted in the form of a written brief. Requests for
appearances by representatives alone to
[[Page 39859]]
personally present argument to Members of the Board may be granted if
good cause is shown. Whether good cause has been shown will be
determined by the presiding Member assigned to conduct the hearing.
* * * * *
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
0
117. Redesignate Sec. 20.702 as Sec. 20.704 and amend by:
0
a. Revising the section heading;
0
b. Revising paragraph (a);
0
c. Revising paragraphs (c) through (e); and
0
d. Adding new paragraph (f).
The revisions and additions read as follows:
Sec. 20.704 Rule 704. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals.
(a)(1) General. To the extent that officials scheduling hearings
for the Board determine that necessary physical resources and qualified
personnel are available, hearings will be scheduled at the convenience
of appellants and their representatives, with consideration of the
travel distance involved. Subject to paragraph (f) of this section,
electronic hearings will be scheduled for each area served by a
regional office in accordance with the place of each case on the
Board's docket, established under Rule 801 (Sec. 20.801) for appeals
and under Rule 902 (Sec. 20.902) for legacy appeals, relative to other
cases for which hearings are scheduled to be held within that area.
(2) Special provisions for legacy appeals. The procedures for
scheduling and providing notice of Board hearings in legacy appeals
conducted at a Department of Veterans Affairs facility having adequate
physical resources and personnel for the support of such hearings under
paragraph (a)(3) of Rule 601 (Sec. 20.601(a)(3)) are contained in Rule
603 (Sec. 20.603).
(b) * * *
(c) Requests for changes in hearing dates. Requests for a change in
a hearing date may be made at any time up to two weeks prior to the
scheduled date of the hearing if good cause is shown. Such requests
must be in writing, must explain why a new hearing date is necessary,
and must be filed with the Board. Examples of good cause include, but
are not limited to, illness of the appellant and/or representative,
difficulty in obtaining necessary records, and unavailability of a
necessary witness. If good cause is shown, the hearing will be
rescheduled for the next available hearing date after the appellant or
his or her representative gives notice that the contingency which gave
rise to the request for postponement has been removed. If good cause is
not shown, the appellant and his or her representative will be promptly
notified and given an opportunity to appear at the hearing as
previously scheduled. If the appellant elects not to appear at the
prescheduled date, the request for a hearing will be considered to have
been withdrawn. In such cases, however, the record will be submitted
for review by the Member who would have presided over the hearing. If
the presiding Member determines that good cause has been shown, the
hearing will be rescheduled for the next available hearing date after
the contingency which gave rise to the request for postponement has
been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled hearing
and a request for postponement has not been received and granted, the
case will be processed as though the request for a hearing had been
withdrawn. No further request for a hearing will be granted in the same
appeal unless such failure to appear was with good cause and the cause
for the failure to appear arose under such circumstances that a timely
request for postponement could not have been submitted prior to the
scheduled hearing date. A motion for a new hearing date following a
failure to appear for a scheduled hearing must be in writing, must be
filed within 15 days of the originally scheduled hearing date, and must
explain why the appellant failed to appear for the hearing and why a
timely request for a new hearing date could not have been submitted.
Such motions must be filed with: Board of Veterans' Appeals, P.O. Box
27063, Washington, DC 20038. Whether good cause for such failure to
appear and the impossibility of timely requesting postponement have
been established will be determined by the Member who would have
presided over the hearing. If good cause and the impossibility of
timely requesting postponement are shown, the hearing will be
rescheduled for the next available hearing date at the same facility
after the appellant or his or her representative gives notice that the
contingency which gave rise to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be
withdrawn by an appellant at any time before the date of the hearing. A
request for a hearing may not be withdrawn by an appellant's
representative without the consent of the appellant. Notices of
withdrawal must be submitted to the Board.
(f) Advancement of the case on the hearing docket. A hearing may be
scheduled at a time earlier than would be provided for under paragraph
(a) of this section upon written motion of the appellant or the
representative. The same grounds for granting relief, motion filing
procedures, and designation of authority to rule on the motion
specified in Rule 902(c) (Sec. 20.902(c)) for advancing a case on the
Board's docket shall apply.
(Authority: 38 U.S.C. 7107)
[Approved by the Office of Management and Budget under control
number 2900-0085]
0
118. Add new Sec. 20.702 to read as follows:
Sec. 20.702 Rule 702. Methods by which hearings are conducted.
A hearing on appeal before the Board may be held by one of the
following methods:
(a) In person at the Board's principal location in Washington, DC,
or
(b) By electronic hearing, through picture and voice transmission,
with the appellant appearing at a Department of Veterans Affairs
facility.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
0
119. Redesignate Sec. 20.703 as Sec. 20.602 and revise the newly
redesignated Sec. 20.602 to read as follows:
Sec. 20.602 Rule 602. When a hearing before the Board of Veterans'
Appeals may be requested in a legacy appeal; procedure for requesting a
change in method of hearing.
(a) How to request a hearing. An appellant, or an appellant's
representative, may request a hearing before the Board when submitting
the substantive appeal (VA Form 9) or anytime thereafter, subject to
the restrictions in Rule 1305 (Sec. 20.1305). Requests for such
hearings before a substantive appeal has been filed will be rejected.
(b) Board's determination of method of hearing. Following the
receipt of a request for a hearing, the Board shall determine, for
purposes of scheduling the hearing for the earliest practical date,
whether a hearing before the Board will be held at its principal
location or at a facility of the Department or other appropriate
Federal facility located within the area served by a regional office of
the Department. The Board shall also determine whether the hearing will
occur by means of an electronic hearing or by the appellant personally
appearing before a Board member or panel. An electronic hearing will be
in lieu of a hearing held by personally appearing before a Member
[[Page 39860]]
or panel of Members of the Board and shall be conducted in the same
manner as, and considered the equivalent of, such a hearing.
(c) Notification of method of hearing. The Board will notify the
appellant and his or her representative of the method of a hearing
before the Board.
(d) How to request a change in method of hearing. Upon notification
of the method of the hearing requested pursuant to paragraph (c) of
this section, an appellant may make one request for a different method
of the requested hearing. If the appellant makes such a request, the
Board shall grant the request and notify the appellant of the change in
method of the hearing.
(e) Notification of scheduling of hearing. The Board will notify
the appellant and his or her representative of the scheduled time and
location for the requested hearing not less than 30 days prior to the
hearing date. This time limitation does not apply to hearings which
have been rescheduled due to a postponement requested by an appellant,
or on his or her behalf, or due to the prior failure of an appellant to
appear at a scheduled hearing before the Board with good cause. The
right to notice at least 30 days in advance will be deemed to have been
waived if an appellant accepts an earlier hearing date due to the
cancellation of another previously scheduled hearing.
(Authority: Sec. 102, Pub. L. 114-315; 130 Stat. 1536)
0
120. Add new Sec. 20.703 to read as follows:
Sec. 20.703 Rule 703. When a hearing before the Board of Veterans'
Appeals may be requested; procedure for requesting a change in method
of hearing.
(a) How to request a hearing. An appellant, or an appellant's
representative, may request a hearing before the Board when submitting
the Notice of Disagreement, or when requesting to modify the Notice of
Disagreement, as provided in Rule 202 (Sec. 20.202). Requests for such
hearings at any other time will be rejected.
(b) Board's determination of method of hearing. Following the
receipt of a request for a hearing, the Board shall determine, for
purposes of scheduling the hearing for the earliest practical date,
whether a hearing before the Board will be held at its principal
location or by picture and voice transmission at a facility of the
Department located within the area served by a regional office of the
Department.
(c) Notification of method of hearing. The Board will notify the
appellant and his or her representative of the method of a hearing
before the Board.
(d) How to request a change in method of hearing. If an appellant
declines to participate in the method of hearing selected by the Board,
the appellant's opportunity to participate in a hearing before the
Board shall not be affected. Upon notification of the method of the
hearing requested pursuant to paragraph (c) of this section, an
appellant may make one request for a different method of the requested
hearing. If the appellant makes such a request, the Board shall grant
the request and notify the appellant of the change in method of the
hearing.
(e) Notification of scheduling of hearing. The Board will notify
the appellant and his or her representative of the scheduled time and
location for the requested hearing not less than 30 days prior to the
hearing date. This time limitation does not apply to hearings which
have been rescheduled due to a postponement requested by an appellant,
or on his or her behalf, or due to the prior failure of an appellant to
appear at a scheduled hearing before the Board of Veterans' Appeals
with good cause. The right to notice at least 30 days in advance will
be deemed to have been waived if an appellant accepts an earlier
hearing date due to the cancellation of another previously scheduled
hearing.
(Authority: 38 U.S.C. 7105(a), 7107)
0
121. Redesignate Sec. 20.704 as Sec. 20.603 and revise the newly
redesignated Sec. 20.603 to read as follows:
Sec. 20.603 Rule 603. Scheduling and notice of hearings conducted by
the Board of Veterans' Appeals at Department of Veterans Affairs field
facilities in a legacy appeal.
(a) General. Hearings may be conducted by a Member or Members of
the Board during prescheduled visits to Department of Veterans Affairs
facilities having adequate physical resources and personnel for the
support of such hearings. Subject to paragraph (f) of this section, the
hearings will be scheduled for each area served by a regional office in
accordance with the place of each case on the Board's docket,
established under Sec. 20.902, relative to other cases for which
hearings are scheduled to be held within that area.
(b) Notification of hearing. When a hearing at a Department of
Veterans Affairs field facility is scheduled, the person requesting it
will be notified of its time and place, and of the fact that the
Government may not assume any expense incurred by the appellant, the
representative, or witnesses attending the hearing.
(c) Requests for changes in hearing dates. Requests for a change in
a hearing date may be made at any time up to two weeks prior to the
scheduled date of the hearing if good cause is shown. Such requests
must be in writing, must explain why a new hearing date is necessary,
and must be filed with the Board. Examples of good cause include, but
are not limited to, illness of the appellant and/or representative,
difficulty in obtaining necessary records, and unavailability of a
necessary witness. If good cause is shown, the hearing will be
rescheduled for the next available hearing date after the appellant or
his or her representative gives notice that the contingency which gave
rise to the request for postponement has been removed. If good cause is
not shown, the appellant and his or her representative will be promptly
notified and given an opportunity to appear at the hearing as
previously scheduled. If the appellant elects not to appear at the
prescheduled date, the request for a hearing will be considered to have
been withdrawn. In such cases, however, the record will be submitted
for review by the Member who would have presided over the hearing. If
the presiding Member determines that good cause has been shown, the
hearing will be rescheduled for the next available hearing date after
the contingency which gave rise to the request for postponement has
been removed.
(d) Failure to appear for a scheduled hearing. If an appellant (or
when a hearing only for oral argument by a representative has been
authorized, the representative) fails to appear for a scheduled hearing
and a request for postponement has not been received and granted, the
case will be processed as though the request for a hearing had been
withdrawn. No further request for a hearing will be granted in the same
appeal unless such failure to appear was with good cause and the cause
for the failure to appear arose under such circumstances that a timely
request for postponement could not have been submitted prior to the
scheduled hearing date. A motion for a new hearing date following a
failure to appear for a scheduled hearing must be in writing, must be
filed within 15 days of the originally scheduled hearing date, and must
explain why the appellant failed to appear for the hearing and why a
timely request for a new hearing date could not have been submitted.
Such motions must be filed with: Board of Veterans' Appeals, P.O. Box
27063, Washington, DC 20038. Whether good cause for such failure to
appear and the impossibility of timely requesting postponement have
been established
[[Page 39861]]
will be determined by the Member who would have presided over the
hearing. If good cause and the impossibility of timely requesting
postponement are shown, the hearing will be rescheduled for the next
available hearing date at the same facility after the appellant or his
or her representative gives notice that the contingency which gave rise
to the failure to appear has been removed.
(e) Withdrawal of hearing requests. A request for a hearing may be
withdrawn by an appellant at any time before the date of the hearing. A
request for a hearing may not be withdrawn by an appellant's
representative without the consent of the appellant. Notices of
withdrawal must be submitted to the Board.
(f) Advancement of the case on the hearing docket. A hearing may be
scheduled at a time earlier than would be provided for under paragraph
(a) of this section upon written motion of the appellant or the
representative. The same grounds for granting relief, motion filing
procedures, and designation of authority to rule on the motion
specified in Rule 902(c) (Sec. 20.902(c)) for advancing a case on the
Board's docket shall apply.
(Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 114-315; 130 Stat.
1536)
[Approved by the Office of Management and Budget under control
number 2900-0085]
0
122. Redesignate Sec. 20.705 as Sec. 20.601 and revise the newly
redesignated Sec. 20.601 to read as follows:
Sec. 20.601 Rule 601. Methods by which hearings in legacy appeals are
conducted; scheduling and notice provisions for such hearings.
(a) Methods by which hearings in legacy appeals are conducted. A
hearing on appeal before the Board may be held by one of the following
methods:
(1) In person at the Board's principal location in Washington, DC;
(2) By electronic hearing, through voice transmission or through
picture and voice transmission, with the appellant appearing at a
Department of Veterans Affairs facility or appropriate Federal
facility; or
(3) At a Department of Veterans Affairs facility having adequate
physical resources and personnel for the support of such hearings.
(b) Electronic hearings. An appropriate Federal facility consists
of a Federal facility having adequate physical resources and personnel
for the support of such hearings.
(c) Provisions for scheduling and providing notice of hearings in
legacy appeals.
(1) The procedures for scheduling and providing notice of Board
hearings in legacy appeals conducted by the methods described in
paragraphs (a)(1) and (a)(2) of this section are contained in Rule 704
(Sec. 20.704).
(2) The procedures for scheduling and providing notice of Board
hearings in legacy appeals conducted at a Department of Veterans
Affairs facility having adequate physical resources and personnel for
the support of such hearings under (a)(3) are contained in Rule 603
(Sec. 20.603).
(Authority: 38 U.S.C. 7107; Sec. 102, Pub. L. 114-315; 130 Stat.
1536)
0
123. Redesignate Sec. 20.706 as Sec. 20.705 and revise the newly
redesignated Sec. 20.705 to read as follows:
Sec. 20.705 Rule 705. Functions of the presiding Member.
(a) General. The presiding Member is responsible for the conduct of
a Board hearing in accordance with the provisions of subparts G and H
of this part.
(b) Duties. The duties of the presiding Member include, but are not
limited to, any of the following:
(1) Conducting a prehearing conference, pursuant to Sec. 20.707;
(2) Ruling on questions of procedure;
(3) Administering the oath or affirmation;
(4) Ensuring that the course of the Board hearing remains relevant
to the issue or issues on appeal;
(5) Setting reasonable time limits for the presentation of
argument;
(6) Prohibiting cross-examination of the appellant and any
witnesses;
(7) Excluding documentary evidence, testimony, and/or argument
which is not relevant or material to the issue or issues being
considered or which is unduly repetitious;
(8) Terminating a Board hearing or directing that an offending
party, representative, witness, or observer leave the hearing if that
party persists or engages in disruptive or threatening behavior;
(9) Disallowing or halting the use of personal recording equipment
being used by an appellant or representative if it becomes disruptive
to the hearing; and
(10) Taking any other steps necessary to maintain good order and
decorum.
(c) Ruling on motions. The presiding Member has the authority to
rule on any Board hearing-related motion.
(Authority: 38 U.S.C. 501)
0
124. Add new Sec. 20.706 to read as follows:
Sec. 20.706 Rule 706. Designation of Member or Members to conduct the
hearing.
Hearings will be conducted by a Member or panel of Members of the
Board. Where a proceeding has been assigned to a panel, the Chairman,
or the Chairman's designee, shall designate one of the Members as the
presiding Member.
(Authority: 38 U.S.C. 7102, 7107)
0
125. Redesignate Sec. 20.707 as Sec. 20.604 and amend by:
0
a. In the section heading, remove the words ``Rule 707'' and add in
their place the words ``Rule 604'';
0
b. In the section heading, add the words ``in a legacy appeal'' after
the word ``hearing'';
0
c. Remove the words ``Sec. 19.3 of this part'' and add in their place
the words ``Rule 106 (Sec. 20.106)'';
0
d. Remove the words ``Sec. 19.11(c) of this part'' and add in their
place the words ``Rule 1004 (Sec. 20.1004)''; and
0
e. Adding an authority citation to the newly redesignated Sec. 20.604
to read as follows:
(Authority: 38 U.S.C. 7102; 38 U.S.C. 7101 (2016))
0
126. Redesignate Sec. 20.708 as Sec. 20.707 and amend by:
0
a. In the section heading, remove the words ``Rule 708'' and add in
their place the words ``Rule 707'';
0
b. Removing all text in the introductory text after the first sentence;
and
0
c. Adding an authority citation to the newly redesignated Sec. 20.707
to read as follows:
(Authority: 38 U.S.C. 7102, 7107)
0
127. Redesignate Sec. 20.709 as Sec. 20.605, revise the section
heading, and add an authority citation to the newly redesignated Sec.
20.605 to read as follows:
Sec. 20.605 Rule 605. Procurement of additional evidence following a
hearing in a legacy appeal.
* * * * *
(Authority: 38 U.S.C. 7102; 38 U.S.C. 7105, 7101 (2016))
0
128. Redesignate Sec. 20.710 as Sec. 20.708, and revise the section
heading by removing the words ``Rule 710'' and add in their place the
words ``Rule 708'' in the newly redesignated Sec. 20.708.
Sec. 20.711 [Redesignated and Amended]
0
129. Redesignate Sec. 20.711 as Sec. 20.709 and amend by:
0
a. In the section heading remove the words ``Rule 711'' and add in
their place the words ``Rule 709''; and
0
b. In paragraph (c), removing the words ``Director, Office of
Management, Planning and Analysis (014),'' in the newly redesignated
Sec. 20.709.
0
130. Redesignate Sec. 20.712 as Sec. 20.710 and revise the section
heading by
[[Page 39862]]
removing the words ``Rule 712'' and add in their place the words ``Rule
710'' in the newly redesignated Sec. 20.710.
0
131. Redesignate Sec. 20.713 as Sec. 20.711 and revise paragraph (b)
in the newly redesignated Sec. 20.711 to read as follows:
Sec. 20.711 Rule 711. Hearings in simultaneously contested claims.
(a) * * *
(b) Requests for changes in hearing dates. (1) General. Except as
described in paragraphs (b)(2) and (3) of this section, any party to a
simultaneously contested claim may request a change in a hearing date
in accordance with the provisions of Rule 704, paragraph (c) (Sec.
20.704(c)).
(2)(i) A request under Rule 704, paragraph (c) must be made within
60 days from the date of the letter of notification of the time and
place of the hearing, or not later than two weeks prior to the
scheduled hearing date, whichever is earlier.
(ii) In order to obtain a new hearing date under the provisions of
Rule 704, paragraph (c), the consent of all other interested parties
must be obtained and submitted with the request for a new hearing date.
If such consent is not obtained, the date of the hearing will become
fixed. After a hearing date has become fixed, an extension of time for
appearance at a hearing will be granted only for good cause, with due
consideration of the interests of other parties. Examples of good cause
include, but are not limited to, illness of the appellant and/or
representative, difficulty in obtaining necessary records, and
unavailability of a necessary witness. The motion for a new hearing
date must be in writing and must explain why a new hearing date is
necessary. If good cause is shown, the hearing will be rescheduled for
the next available hearing date after the appellant or his or her
representative gives notice that the contingency which gave rise to the
request for postponement has been removed. Ordinarily, however,
hearings will not be postponed more than 30 days. Whether good cause
for establishing a new hearing date has been shown will be determined
by the presiding Member assigned to conduct the hearing.
(3) A copy of any motion for a new hearing date required by these
rules must be mailed to all other interested parties by certified mail,
return receipt requested. The receipts, which must bear the signatures
of the other interested parties, and a letter explaining that they
relate to the motion for a new hearing date and containing the
applicable Department of Veterans Affairs file number must be filed at
the same address where the motion was filed as proof of service of the
motion. Each interested party will be allowed a period of 10 days from
the date that the copy of the motion was received by that party to file
written argument in response to the motion.
(Authority: 38 U.S.C. 7105A)
0
132. Redesignate Sec. 20.714 as Sec. 20.712 and revise the newly
redesignated Sec. 20.712 to read as follows:
Sec. 20.712 Rule 712. Record of hearing.
(a) General. All Board hearings will be recorded. The Board will
prepare a written transcript for each Board hearing conducted. The
transcript will be the official record of the hearing and will be
incorporated as a part of the record on appeal. The Board will not
accept alternate transcript versions prepared by the appellant or
representative.
(b) Hearing recording. The recording of the Board hearing will be
retained for a period of 12 months following the date of the Board
hearing as a duplicate record of the proceeding.
(c) Copy of written transcript. If the appellant or representative
requests a copy of the written transcript in accordance with Sec.
1.577 of this chapter, the Board will furnish one copy to the appellant
or representative.
0
133. Redesignate Sec. 20.715 as Sec. 20.713 and amend by:
0
a. Revising the section heading by removing the words ``Rule 715'' and
adding in their place the words ``Rule 713'';
0
b. Revising the fourth sentence of the introductory text to read: ``In
all such situations, advance arrangements must be made with the Board
of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.'';
0
c. Removing the fifth and sixth sentences; and
0
d. Revising the authority citation of the newly redesigated Sec.
20.713 to read:
Sec. 20.713 Rule 713. Recording of hearing by appellant or
representative.
* * * * *
(Authority: 38 U.S.C. 7102, 7107)
0
134. Redesignate Sec. 20.716 as Sec. 20.714 and revise the newly
redesignated Sec. 20.714 to read as follows:
Sec. 20.714 Rule 714. Correction of hearing transcripts.
If an appellant wishes to seek correction of perceived errors in a
hearing transcript, the appellant or his or her representative should
move for correction of the hearing transcript within 30 days after the
date that the transcript is mailed to the appellant. The motion must be
in writing and must specify the error, or errors, in the transcript and
the correct wording to be substituted. The motion must be filed with
the Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
The ruling on the motion will be made by the presiding Member of the
hearing.
(Authority: 38 U.S.C. 7102, 7107)
0
135. Redesignate Sec. 20.717 as Sec. 20.715 and revise the newly
redesignated Sec. 20.715 to read as follows:
Sec. 20.715 Rule 715. Loss of hearing recordings or transcripts--
motion for new hearing.
(a) Notification. (1) The Board must notify the appellant and his
or her representative in writing in the event the Board discovers that
a Board hearing has not been recorded in whole or in part due to
equipment failure or other cause, or the official transcript of the
hearing is lost or destroyed and the recording upon which it was based
is no longer available. The notice must provide the appellant with a
choice of either of the following options:
(i) Appear at a new Board hearing, pursuant to Rules 703 and 704
(Sec. Sec. 20.703 and 20.704) for appeals or Rules 602 and 603
(Sec. Sec. 20.602 and 20.603) for legacy appeals, as defined in Sec.
19.2 of this chapter; or
(ii) Have the Board proceed to appellate review of the appeal based
on the evidence of record.
(2) The notice will inform the appellant that he or she has a
period of 30 days to respond to the notice. If the appellant does not
respond by requesting a new hearing within 30 days from the date of the
mailing of the notice, then the Board will decide the appeal on the
basis of the evidence of record. A request for a new Board hearing will
not be accepted once the Board has issued a decision on the appeal.
(b) Board decision issued prior to a loss of the recording or
transcript. The Board will not accept a request for a new Board hearing
under this section if a Board decision was issued on an appeal prior to
the loss of the recording or transcript of a Board hearing, and the
Board decision considered testimony provided at that Board hearing.
(Authority: 38 U.S.C. 7102, 7105(a), 7107)
Sec. Sec. 20.716 and 20.717 [Reserved]
0
136. Reserve Sec. Sec. 20.716 and 20.717.
Subpart I--Appeals Processing
0
137. Revise the subpart I heading to read as set forth above.
0
138. Redesignate Sec. 20.800 as Sec. 20.901, and amend by:
[[Page 39863]]
0
a. Revising the section heading by removing the words ``Rule 800'' and
adding in their place the words ``Rule 901''.
0
b. Revising the authority citation of the newly redesignated Sec.
20.901 to read as follows:
Sec. 20.901 Rule 901. Submission of additional evidence after
initiation of appeal.
* * * * *
(Authority: 38 U.S.C. 5902, 5903, 5904; 38 U.S.C. 5904, 7105(d)(1)
(2016))
0
139. Add Sec. Sec. 20.800 through 20.804 to read as follows:
Sec. 20.800 Rule 800. Order of consideration of appeals.
(a) Docketing of appeals. (1) Applications for review on appeal are
docketed in the order in which they are received on the following
dockets:
(i) A docket for appeals in which an appellant does not request a
hearing or an opportunity to submit additional evidence on the Notice
of Disagreement;
(ii) A docket for appeals in which the appellant does not request a
hearing but does request an opportunity to submit additional evidence
on the Notice of Disagreement; and
(iii) A docket for appeals in which the appellant requests a
hearing on the Notice of Disagreement.
(2) An appeal may be moved from one docket to another only when the
Notice of Disagreement has been modified pursuant to Rule 202,
paragraph (c)(3) (Sec. 20.202(c)(3)). The request to modify the Notice
of Disagreement must reflect that the appellant requests the option
listed in Sec. 20.202(b) that corresponds to the docket to which the
appeal will be moved. An appeal that is moved from one docket to
another will retain its original docket date.
(b) Except as otherwise provided, each appeal will be decided in
the order in which it is entered on the docket to which it is assigned.
(c) Advancement on the docket--(1) Grounds for advancement. A case
may be advanced on the docket to which it is assigned on the motion of
the Chairman, the Vice Chairman, a party to the case before the Board,
or such party's representative. Such a motion may be granted only if
the case involves interpretation of law of general application
affecting other claims, if the appellant is seriously ill or is under
severe financial hardship, or if other sufficient cause is shown.
``Other sufficient cause'' shall include, but is not limited to,
administrative error resulting in a significant delay in docketing the
case, administrative necessity, or the advanced age of the appellant.
For purposes of this Rule, ``advanced age'' is defined as 75 or more
years of age. This paragraph does not require the Board to advance a
case on the docket in the absence of a motion of a party to the case or
the party's representative.
(2) Requirements for motions. Motions for advancement on the docket
must be in writing and must identify the specific reason(s) why
advancement on the docket is sought, the name of the veteran, the name
of the appellant if other than the veteran (e.g., a veteran's survivor,
a guardian, a substitute appellant, or a fiduciary appointed to receive
VA benefits on an individual's behalf), and the applicable Department
of Veterans Affairs file number. The motion must be filed with the
Board of Veterans' Appeals, P.O. Box 27063, Washington, DC 20038.
(3) Disposition of motions. If a motion is received prior to the
assignment of the case to an individual member or panel of members, the
ruling on the motion will be by the Vice Chairman, who may delegate
such authority to a Deputy Vice Chairman. If a motion to advance a case
on the docket is denied, the appellant and his or her representative
will be immediately notified. If the motion to advance a case on the
docket is granted, that fact will be noted in the Board's decision when
rendered.
(d) Consideration of appeals remanded by the United States Court of
Appeals for Veterans Claims. A case remanded by the United States Court
of Appeals for Veterans Claims for appropriate action will be treated
expeditiously by the Board without regard to its place on the Board's
docket.
(Authority: 38 U.S.C. 7112; Sec. 302, Pub. L. 103-446; 108 Stat.
4645)
(e) Case remanded to correct duty to assist error and new Notice of
Disagreement filed after readjudication. A case will not be returned to
the Board following the agency of original jurisdiction's
readjudication of an appeal previously remanded by the Board pursuant
to Rule 803, paragraph (c) (Sec. 20.802(c)), unless the claimant files
a new Notice of Disagreement. Such cases will be docketed in the order
in which the most recent Notice of Disagreement was received.
(f) Cases involving substitution. A case returned to the Board
following the grant of a substitution request or pursuant to an appeal
of a denial of a substitution request assumes the same place on the
docket held by the deceased appellant at the time of his or her death.
If the deceased appellant's case was advanced on the docket prior to
his or her death pursuant to paragraph (c) of this section, the
substitute will receive the benefit of the advanced placement.
(Authority: 38 U.S.C. 5121A)
(g) Postponement to provide hearing. Any other provision of this
Rule notwithstanding, a case may be postponed for later consideration
and determination if such postponement is necessary to afford the
appellant a hearing.
(Authority: 38 U.S.C. 7105, 7107)
Sec. 20.801 Rule 801. The decision.
(a) General. Decisions of the Board will be based on a de novo
review of the evidence of record at the time of the agency of original
jurisdiction decision on the issue or issues on appeal, and any
additional evidence submitted pursuant to Rules 302 and 303 (Sec. Sec.
20.302 and 20.303). Any findings favorable to the claimant as
identified by the agency of original jurisdiction in notification of a
decision or in a prior Board decision on an issue on appeal are binding
on all VA and Board of Veterans' Appeals adjudicators, unless rebutted
by clear and convincing evidence to the contrary. For purposes of this
section, findings means conclusions on questions of fact and
application of law to facts made by an adjudicator concerning the issue
under review.
(b) Content. The decision of the Board will be in writing and will
set forth specifically the issue or issues under appellate
consideration. Except with respect to appeals which are dismissed
because an appellant seeking nonmonetary benefits has died while the
appeal was pending, the decision will also include:
(1) Findings of fact and conclusions of law on all material issues
of fact and law presented on the record;
(2) The reasons or bases for those findings and conclusions;
(3) A general statement reflecting whether any evidence was
received at a time when not permitted under subpart D, and informing
the appellant that any such evidence was not considered by the Board
and of the options available to have that evidence reviewed by the
Department of Veterans Affairs; and
(4) An order granting or denying the benefit or benefits sought on
appeal, dismissing the appeal, or remanding the issue or issues as
described in Rule 802 (Sec. 20.802).
(c) A decision by a panel of Members will be by a majority vote of
the panel Members.
(Authority: 38 U.S.C. 7104(d))
[[Page 39864]]
Sec. 20.802 Rule 802. Remand for correction of error.
(a) Remand. Unless the issue or issues can be granted in full, the
Board shall remand the appeal to the agency of original jurisdiction
for correction of an error on the part of the agency of original
jurisdiction to satisfy its duties under 38 U.S.C. 5103A, if the error
occurred prior to the date of the agency of original jurisdiction
decision on appeal. The Board may remand for correction of any other
error by the agency of original jurisdiction in satisfying a regulatory
or statutory duty, if correction of the error would have a reasonable
possibility of aiding in substantiating the appellant's claim. The
remand must specify the action to be taken by the agency of original
jurisdiction.
(b) Advisory Medical Opinion. If the Board determines that an error
as described in paragraph (a) of this section may only be corrected by
obtaining an advisory medical opinion from a medical expert who is not
an employee of the Department of Veterans Affairs, the Board shall
remand the case to the agency of original jurisdiction to obtain such
an opinion, specifying the questions to be posed to the independent
medical expert providing the advisory medical opinion.
(c) Action by agency of original jurisdiction after receipt of
remand. After correction of any error identified in the Board's remand,
the agency of original jurisdiction must readjudicate the claim and
provide notice of the decision under 38 U.S.C. 5104, to include notice
under 38 U.S.C. 5104C of a claimant's options for further review of the
agency of original jurisdiction's decision. The agency of original
jurisdiction must provide for the expeditious treatment of any claim
that is remanded by the Board.
(Authority: 38 U.S.C. 5103A, 5109, 5109B, 7102, 7104(a), 7105)
Sec. 20.803 Rule 803. Content of Board decision, remand, or order in
simultaneously contested claims.
The content of the Board's decision, remand, or order in appeals
involving a simultaneously contested claim will be limited to
information that directly affects the issues involved in the contested
claim. Appellate issues that do not involve all of the contesting
parties will be addressed in one or more separate written decisions,
remands, or orders that will be furnished only to the appellants
concerned and their representatives, if any.
(Authority: 5 U.S.C. 552a(b), 38 U.S.C. 5701(a))
Sec. 20.804 Rule 804. Opinions of the General Counsel.
(a) The Board may obtain an opinion from the General Counsel of the
Department of Veterans Affairs on legal questions involved in the
consideration of an appeal.
(b) Filing of requests for the procurement of opinions. The
appellant or representative may request that the Board obtain an
opinion under this section. Such request must be in writing and will be
granted upon a showing of good cause, such as the identification of a
complex or controversial legal issue involved in the appeal which
warrants such an opinion.
(c) Notification of evidence to be considered by the Board and
opportunity for response. If the Board requests an opinion pursuant to
this section, it will notify the appellant and his or her
representative, if any. 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. A period of 60 days from the date the Board
furnishes a copy of the opinion will be allowed for response, which may
include the submission of relevant evidence or argument. The date the
Board furnishes a copy will be presumed to be the same as the date of
the letter or memorandum that accompanies the copy of the opinion for
purposes of determining whether a response was timely filed.
(d) For purposes of this section, the term ``the Board'' includes
the Chairman, the Vice Chairman, any Deputy Vice Chairman, and any
Member of the Board before whom a case is pending.
(Authority: 38 U.S.C. 5107(a), 7102(c), 7104(a), 7104(c))
Subpart J--Action by the Board in Legacy Appeals
0
140. Revise the subpart J heading as set forth above.
0
141. Redesignate Sec. 20.900 as Sec. 20.902 and amend by:
0
a. Revising the section heading by removing the words ``Rule 900'' and
adding in their place the words ``Rule 902'';
0
b. In paragraph (c)(1), revising the third sentence;
0
c. In paragraph (c)(2), removing the words ``Director, Office of
Management, Planning and Analysis (014),'';
0
d. Revise the authority citation at the end of paragraph (d); and
0
e. Revise the authority citation of the newly redesignated Sec. 20.902
to read as follows:
Sec. 20.902 Rule 902. Order of consideration of appeals.
* * * * *
(c) * * *
(1) * * *
``Other sufficient cause'' shall include, but is not limited to,
administrative error resulting in a significant delay in docketing the
case, administrative necessity, or the advanced age of the appellant.
* * * * *
(d) * * *
(Authority: Sec. 302, Pub. L. 103-446; 108 Stat. 4645)
* * * * *
(Authority: 38 U.S.C. 5121A, 7107; 38 U.S.C. 7107 (2016))
0
142. Add Sec. 20.900 to read as follows:
Sec. 20.900 Rule 900. Applicability.
The provisions in this subpart apply to Board decisions and remands
rendered in legacy appeals, as defined in Sec. 19.2 of this chapter.
(Authority: Sec. 2, Pub. L. 115-55; 131 Stat. 1105)
Sec. 20.901 [Redesignated and Amended]
0
143. Redesignate Sec. 20.901 as Sec. 20.906 and amend by:
0
a. Revising the section heading by replacing the words ``Rule 901'' and
adding in their place the words ``Rule 906''.
0
b. In paragraph (b), removing the words ``Armed Forces Institute of
Pathology'' and adding in its place the words ``Joint Pathology
Center'' both places it appears in the newly redesignated Sec. 20.906.
0
144. Redesignate Sec. 20.902 as Sec. 20.907 and amend by:
0
a. Revising the section heading by removing the words ``Rule 902'' and
adding in their place the words ``Rule 907''.
0
b. In the introductory text removing the words ``Rule 901 (Sec. 20.901
of this part)'' and adding in its place the words ``Rule 906 (Sec.
20.906)'' in the newly redesignated Sec. 20.907.
0
145. Redesignate Sec. 20.903 as Sec. 20.908 and amend by:
0
a. Revising the section heading by removing the words ``Rule 903'' and
adding in their place the words ``Rule 908'';
0
b. In paragraph (a), removing the words ``Rule 901 (Sec. 20.901 of
this part)'' and adding in its place the words ``Rule 906 (Sec.
20.906)''; and
0
c. In paragraph (b), removing the words ``Sec. 19.9(d)(5) of this
chapter'' and adding in its place the words ``Rule 904(d)(5) (Sec.
20.904(d)(5))'' in the newly redesignated Sec. 20.908.
0
146. Redesignate Sec. 20.904 as Sec. 20.1000 and amend by revising
the section
[[Page 39865]]
heading and paragraphs (a)(2) and (3) of the newly redesignated Sec.
20.1000 to read as follows:
Sec. 20.1000 Rule 1000. Vacating a decision.
* * * * *
(a) * * *
(1) * * *
(2) When there was a prejudicial failure to afford the appellant a
personal hearing. (Where there was a failure to honor a request for a
hearing and a hearing is subsequently scheduled, but the appellant
fails to appear, the decision will not be vacated.), and
(3) For a legacy appeal, as defined in Sec. 19.2 of this chapter,
when a Statement of the Case or required Supplemental Statement of the
Case was not provided.
* * * * *
Subpart K--Vacatur and Reconsideration
0
147. Revise the subpart K heading as set forth above.
Sec. 20.1000 [Redesignated and Amended]
0
148. Redesignate Sec. 20.1000 as Sec. 20.1001 and amend by:
0
a. Revising the section heading by removing the words ``Rule 1000'' and
adding in their place the words ``Rule 1001'';
0
b. Removing the words ``and material'' from paragraph (b).
Sec. 20.1001 [Redesignated and Amended]
0
149. Redesignate Sec. 20.1001 as Sec. 20.1002 and amend by:
0
a. Revising the section heading by removing the words ``Rule 1001'' and
adding in their place the words ``Rule 1002'';
0
b. In paragraph (b), removing the words ``Director, Office of
Management, Planning and Analysis (014),''; and
0
c. In paragraph (c)(2), removing the words``Sec. 19.11 of this
chapter'' and adding in its place the words ``Rule 1004 (Sec.
20.1004)'' in the newly redesignated Sec. 20.1002.
0
150. Amend Sec. 20.1003 by revising the first sentence and removing
the fifth sentence of the introductory text to read as follows:
Sec. 20.1003 Rule 1003. Hearing on reconsideration.
After a motion for reconsideration has been allowed, a hearing will
be granted if the issue under reconsideration was considered on a
docket for cases that may include a hearing, and an appellant requests
a hearing before the Board.
* * * * *
Subpart L--Finality
0
151. Amend Sec. 20.1103 by revising to read as follows:
Sec. 20.1103 Rule 1103. Finality of determinations of the agency of
original jurisdiction where issue is not appealed.
A determination on a claim by the agency of original jurisdiction
of which the claimant is properly notified is final if an appeal is not
perfected as prescribed in Sec. 19.52 of this chapter. If no Notice of
Disagreement is filed as prescribed in subpart C of this part, the
claim shall not thereafter be readjudicated or allowed, except as
provided by 38 U.S.C. 5104B or 5108, or by regulation.
0
152. Amend Sec. 20.1105 by revising to read as follows:
Sec. 20.1105 Rule 1105. Supplemental claim after promulgation of
appellate decision.
(a) After an appellate decision has been promulgated on a claim, a
claimant may file a supplemental claim with the agency of original
jurisdiction by submitting the prescribed form with new and relevant
evidence related to the previously adjudicated claim as set forth in
Sec. 3.2601 of this chapter, except in cases involving simultaneously
contested claims under Subpart E of this part.
(Authority: 38 U.S.C. 5108, 7104)
(b) Legacy appeals pending on the effective date. For legacy
appeals as defined in Sec. 19.2 of this chapter, where prior to the
effective date described in Rule 4 (Sec. 20.4), an appellant requested
that a claim be reopened after an appellate decision has been
promulgated and submitted evidence in support thereof, a determination
as to whether such evidence is new and material must be made and, if it
is, as to whether it provides a basis for allowing the claim. An
adverse determination as to either question is appealable.
(Authority: 38 U.S.C. 5108, 7104 (2016))
Subpart M--Privacy Act
0
153. Amend Sec. 20.1201 by removing the words ``Rules 1000 through
1003 (Sec. Sec. 20.1000-20.1003 of this part)'' and adding in its
place the words ``Rules 1001 through 1004 (Sec. Sec. 20.1001-
20.1004)'' both places it appears.
Subpart N--Miscellaneous
0
154. Amend Sec. 20.1301 by:
0
a. Redesignating paragraph (b) as paragraph (c) and revising the newly
redesignated paragraph (c)(1) by removing the text ``the internet at
http://www.index.va.gov/search/va/bva.html'' and replacing it with the
text ``the Board's website'';
0
b. Adding new paragraph (b) and revising paragraph (a);
0
c. In paragraph (c)(2):
0
i. Removing the words ``at the Research Center'' from the second
sentence;
0
ii. Removing the words ``Board's Research Center'' and adding in its
place the words ``Board'' from the third sentence;
0
iii. Removing the word ``paper'' from the ninth sentence; and
0
iv. Removing the words ``Research Center (01C1),'' from the last
sentence.
The additions and revisions read as follows:
Sec. 20.1301 Rule 1301. Disclosure of information.
(a) Policy. It is the policy of the Board for the full text of
appellate decisions to be disclosed to appellants. In those situations
where disclosing certain information directly to the appellant would
not be in conformance with 38 U.S.C. 5701, that information will be
removed from the decision and the remaining text will be furnished to
the appellant. A full-text appellate decision will be disclosed to the
designated representative, however, unless the relationship between the
appellant and representative is such (for example, a parent or spouse)
that disclosure to the representative would be as harmful as if made to
the appellant.
(b) Legacy appeals. For legacy appeals as defined in Sec. 19.2 of
this chapter, the policy described in paragraph (a) is also applicable
to Statements of the Case and supplemental Statements of the Case.
(Authority: 38 U.S.C. 7105(d)(2))
* * * * *
0
155. Amend Sec. 20.1302 by removing the words ``Rule 900 (Sec.
20.900(a)(2)'' and adding in its place the words ``Rule 800, paragraph
(f) (Sec. 20.800(f)) or, for legacy appeals, Rule 902, paragraph
(a)(2) (Sec. 20.902(a)(2))'' both places it appears.
0
156. Redesignate Sec. 20.1304 as Sec. 20.1305 and amend by:
0
a. Revising the section heading and paragraph (a);
0
b. In paragraph (b)(1), removing the words ``Director, Office of
Management, Planning and Analysis (014),'';
0
c. In paragraph (b)(2), removing the words ``Sec. 20.903 of this
chapter'' and adding in their place ``Sec. 20.908''; and
0
d. In paragraph (c), removing the words ``Sec. 20.903'' and adding in
their place the words ``Sec. 20.908'';
0
e. Revising the authority citation in the newly redesignated Sec.
20.1305 to read as follows:
[[Page 39866]]
Sec. 20.1305 Rule 1305. Procedures for legacy appellants to request a
change in representation, personal hearing, or submission of additional
evidence following certification of an appeal to the Board of Veterans'
Appeals.
(a) Request for a change in representation, request for a personal
hearing, or submission of additional evidence within 90 days following
notification of certification and transfer of records. An appellant in
a legacy appeal, as defined in Sec. 19.2 of this chapter, and his or
her representative, if any, will be granted a period of 90 days
following the mailing of notice to them that an appeal has been
certified to the Board for appellate review and that the appellate
record has been transferred to the Board, or up to and including the
date the appellate decision is promulgated by the Board, whichever
comes first, during which they may submit a request for a personal
hearing, additional evidence, or a request for a change in
representation. Any such request or additional evidence should be
submitted directly to the Board and not to the agency of original
jurisdiction. If any such request or additional evidence is submitted
to the agency of original jurisdiction instead of to the Board, the
agency of original jurisdiction must forward it to the Board in
accordance with Sec. 19.37(b) of this chapter. The date of mailing of
the letter of notification will be presumed to be the same as the date
of that letter for purposes of determining whether the request was
timely made or the evidence was timely submitted. Any evidence which is
submitted at a hearing on appeal which was requested during such period
will be considered to have been received during such period, even
though the hearing may be held following the expiration of the period.
Any pertinent evidence submitted by the appellant or representative is
subject to the requirements of paragraph (d) of this section if a
simultaneously contested claim is involved.
* * * * *
(Authority: 38 U.S.C. 5121A, 5902, 5903; 38 U.S.C. 5904, 7104, 7105,
7105A (2016))
0
157. Add new Sec. 20.1304 to read as follows:
Sec. 20.1304 Rule 1304. Request for a change in representation.
(a) Request for a change in representation within 90 days following
Notice of Disagreement. An appellant and his or her representative, if
any, will be granted a period of 90 days following receipt of a Notice
of Disagreement, or up to and including the date the appellate decision
is promulgated by the Board, whichever comes first, during which they
may submit a request for a change in representation.
(b) Subsequent request for a change in representation--Following
the expiration of the period described in paragraph (a) of this
section, the Board will not accept a request for a change in
representation except when the appellant demonstrates on motion that
there was good cause for the delay. Examples of good cause include, but
are not limited to, illness of the appellant or the representative
which precluded action during the period; death of an individual
representative; illness or incapacity of an individual representative
which renders it impractical for an appellant to continue with him or
her as representative; and withdrawal of an individual representative.
Such motions must be in writing and 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) or the name
of any substitute claimant or appellant; the applicable Department of
Veterans Affairs file number; and an explanation of why the request for
a change in representation could not be accomplished in a timely
manner. Such motions must be filed at the following address: Board of
Veterans' Appeals, P.O. Box 27063, Washington, DC 20038. Depending upon
the ruling on the motion, action will be taken as follows:
(1) Good cause not shown. If good cause is not shown, the request
for a change in representation will be referred to the agency of
original jurisdiction for association with the appellant's file for any
pending or subsequently received claims upon completion of the Board's
action on the pending appeal without action by the Board concerning the
request.
(2) Good cause shown. If good cause is shown, the request for a
change in representation will be honored.
(Authority: 38 U.S.C. 5902, 5903, 5904, 7105, 7105A)
Sec. Sec. 20.1306-20.1399 [Reserved]
0
158. Add and reserve Sec. Sec. 20.1306 through 20.1399.
Subpart O--Revision of Decisions on Grounds of Clear and
Unmistakable Error
Sec. 20.1401 [Amended]
0
159. Amend Sec. 20.1401 by removing the words ``, but does not include
officials authorized to file administrative appeals pursuant to Sec.
19.51 of this title'' in the last sentence of paragraph (b).
0
160. Amend Sec. 20.1403 by revising paragraph (b)(2) to read as
follows:
Sec. 20.1403 Rule 1403. What constitutes clear and unmistakable
error; what does not.
* * * * *
(b) * * *
(1) * * *
(2) Special rule for Board decisions on legacy appeals issued on or
after July 21, 1992. For a Board decision on a legacy appeal as defined
in Sec. 19.2 of this chapter issued on or after July 21, 1992, the
record that existed when that decision was made includes relevant
documents possessed by the Department of Veterans Affairs not later
than 90 days before such record was transferred to the Board for review
in reaching that decision, provided that the documents could reasonably
be expected to be part of the record.
* * * * *
Sec. 20.1404 [Amended]
0
161. Amend Sec. 20.1404(c) by removing ``Director, Office of
Management, Planning and Analysis (014),''.
0
162. Amend Sec. 20.1405 by:
0
a. In paragraph (a)(1), removing the words ``Sec. 19.3 of this title''
and adding in its place the words ``Sec. 20.106'';
0
b. In paragraph (a)(2), removing the words ``Rule 900(c) (Sec.
20.900(c) of this part)'' and adding in its place the words ``Rule 800,
paragraph (c) (Sec. 20.800(c)) or, for legacy appeals, Rule 902,
paragraph (c) (Sec. 20.902(c))'';
0
c. In paragraph (c)(2), removing the words ``Director, Office of
Management, Planning and Analysis (014),'';
0
d. Removing paragraph (d);
0
e. Redesignating paragraph (e) as paragraph (d);
0
f. Redesignating paragraph (f) as paragraph (e);
0
g. Redesignating paragraph (g) as paragraph (f) and revising the first
sentence of the newly redesignated paragraph (f) to read as follows:
Sec. 20.1405 Rule 1405. Disposition.
* * * * *
(f) Decision.The decision of the Board on a motion under this
subpart will be in writing.
* * * * *
0
163. Amend Sec. 20.1408 by removing the words ``Rule 3(o) (Sec.
20.3(o) of this part)'' and adding in its place the words ``Rule 3(l)
(Sec. 20.3(l) of this part)'' from the introductory text.
0
164. Amend Sec. 20.1409(b), by removing the words ``Rule 1405(e)'' and
adding in its place the words ``Rule 1405, paragraph (d) (Sec.
20.1405(d) of this part)''.
[[Page 39867]]
0
165. Amend Sec. 20.1411 by revising paragraphs (b) and (d) to read as
follows:
Sec. 20.1411 Rule 1411. Relationship to other statutes.
(a) * * *
(b) For legacy appeals as defined in Sec. 19.2 of this chapter, a
motion under this subpart is not a claim subject to reopening under 38
U.S.C. 5108 (prior to the effective date described in Rule 4, paragraph
(a) (Sec. 20.4(a) of this part) (relating to reopening claims on the
grounds of new and material evidence).
(c) * * *
(d) A motion under this subpart is not a claim for benefits subject
to the requirements and duties associated with 38 U.S.C. 5103A
(imposing a duty to assist).
(Authority: 38 U.S.C. 501(a))
Sec. Sec. 20.1412-20.1499 [Added and Reserved]
0
166. Add and reserve Sec. Sec. 20.1412 through 20.1499.
Subpart P--Expedited Claims Adjudication Initiative--Pilot Program
0
167. Remove and reserve subpart P, consisting of Sec. Sec. 20.1500-
20.1510.
0
168. Remove Appendix A to Part 20--Cross-References.
PART 21--VOCATIONAL REHABILITATION AND EMPLOYMENT
Subpart A--Vocational Rehabilitation and Employment Under 38 U.S.C.
Chapter 31
0
169. The authority citation for part 21, subpart A, continues to read
as follows:
Authority: 38 U.S.C. 501(a), chs. 18, 31, and as noted in
specific sections.
0
170. Remove Sec. Sec. 21.59 and 21.98.
0
171. Remove the CROSS REFERENCE from the end of Sec. 21.184.
0
172. Amend Sec. 21.188(b) by removing the words ``Sec. 21.96, or
Sec. 21.98'' and adding in its place the words ``or Sec. 21.96''.
0
173. Amend Sec. 21.190(b) by removing the words ``Sec. 21.96, or
Sec. 21.98'' and adding in its place the words ``or Sec. 21.96''.
0
174. Amend Sec. 21.192(b) by removing the words ``Sec. 21.96, or
Sec. 21.98'' and adding in its place the words ``or Sec. 21.96''.
0
175. Amend Sec. 21.194(b) by removing the words ``Sec. 21.94 and
21.98'' and adding in its place the words ``and Sec. 21.94''.
0
176. Amend Sec. 21.282(c)(4) by removing the words ``21.98'' and
adding in its place the words ``21.96''.
0
177. Amend Sec. 21.412(a)(2) by removing the words ``(See Sec. Sec.
19.153, 19.154, and 19.155''.
0
178. Amend Sec. 21.414 by:
0
a. In paragraph (e), removing the period following ``Sec. 3.105(e)''
and adding in its place a semicolon.
0
b. Adding a new paragraph (f).
0
c. Revising the authority citation.
The revisions and additions read as follows:
Sec. 21.414 Revision of decision.
* * * * *
(f) Review of decisions, Sec. 21.416.
(Authority: 38 U.S.C. 5104B, 5108, and 5112)
0
179. Add Sec. 21.416 to read as follows:
Sec. 21.416 Review of decisions.
(a) Applicability. This section applies where notice of a decision
under this subpart or subpart M of this part was provided to a veteran
on or after the effective date of the modernized review system as
provided in Sec. 19.2(a) of this chapter, or where an applicant or
claimant has elected review of a legacy claim under the modernized
review system as provided in Sec. 3.2400(c) of this chapter.
(b) Reviews available. Within one year from the date on which VA
issues notice of a decision on an issue contained within a claim, a
veteran may elect one of the following administrative review options:
(1) Supplemental Claim Review. The nature of this review will
accord with Sec. 3.2501 of this chapter, except that a complete
application in writing on a form prescribed by the Secretary will not
be required and a hearing will not be provided. The Vocational
Rehabilitation and Employment (VR&E) staff member will inform the
veteran or his or her decision within 125 days of receipt of the
supplemental claim.
(2) Board of Veterans' Appeals Review. See 38 CFR part 20.
(3) Higher-level Review. Reviews will be conducted by a VR&E
employee who did not participate in the prior decision and is more
senior than the employee that made the prior decision currently under
review. Selection of an employee to conduct a review of the decision is
at VR&E's discretion. The VR&E staff member will inform the veteran of
his or her decision within 90 days of receipt of the request for
higher-level review.
(i) Evidentiary record. The evidentiary record in a higher-level
review is limited to the evidence of record at the time VA issued the
prior decision under review. Except as provided in paragraph (ii) of
this section, the higher-level adjudicator may not consider, or order
development of, additional evidence that may be relevant to the issue
under review.
(ii) Duty to assist errors. The higher-level adjudicator will
ensure that VR&E has complied with its statutory duty to assist in
gathering evidence applicable prior to issuance of the decision being
reviewed. If the higher-level adjudicator both identifies a duty to
assist error that existed at the time of VR&E's decision on the claim
under review, and cannot resolve the issue in the veteran's favor with
the information at hand, the higher-level adjudicator must return the
claim to the assigned VR&E case manager (unless that manager is
unavailable) for correction of the error and readjudication. Upon
receipt, the VR&E case manager will readjudicate the claim within 30
days.
(iii) Informal conferences. A veteran or his or her representative
may request an informal conference during the higher-level review
process. For purposes of this section, informal conference means
contact with a veteran and/or his or her representative telephonically
or in person, as determined by VR&E, for the sole purpose of allowing
the veteran or representative to identify any errors of law or fact in
a prior decision. When requested, VA will make reasonable efforts to
conduct one informal conference during a review. The higher-level
adjudicator or designated representative will conduct the informal
conference and document any arguments of fact or law presented by the
veteran or his or her representative for inclusion in the record. Any
expenses incurred by the veteran in connection with the informal
conference are the responsibility of the veteran.
(iv) De novo review. The higher-level adjudicator will consider
only those issues for which the veteran has requested a review, and
will conduct a de novo review giving no deference to the prior
decision, except as provided in Sec. 3.104(c) of this chapter.
(v) Difference of opinion. The higher-level adjudicator may grant a
benefit sought in the claim based on a difference of opinion (see Sec.
3.105(b) of this chapter). However, findings favorable to the veteran
will not be reversed in the absence of clear and convincing evidence to
the contrary. In addition, the higher-level adjudicator will not revise
the outcome in a manner that is less advantageous to the veteran based
solely on a difference of opinion. The higher-level adjudicator may
reverse or revise (even if disadvantageous to the veteran) prior
decisions by VR&E (including the decision being reviewed or any prior
decision) on the grounds of clear and unmistakable error under Sec.
3.105(a)(1) or (2) of this chapter, as applicable,
[[Page 39868]]
depending on whether the prior decision is finally adjudicated.
(c) Notice requirements. Notice of a decision made under paragraph
(b)(1) or (3) of this section will include all of the elements
described in Sec. 21.420(b).
(Authority: 38 U.S.C. 5104B, 5108, 5109A, and 7105)
0
180. Amend Sec. 21.420 by:
0
a. Revising paragraphs (b) and (d).
0
c. Adding new paragraph (e).
0
d. Revising the authority citation to read as follows:
Sec. 21.420 Informing the veteran.
(a) * * *
(b) Notification: Each notification should include the following:
(1) Identification of the issues adjudicated.
(2) A summary of the evidence considered by the Secretary.
(3) A summary of the applicable laws and regulations relevant to
the decision.
(4) Identification of findings favorable to the veteran.
(5) In the case of a denial of a claim, identification of elements
not satisfied leading to the denial.
(6) An explanation of how to obtain or access evidence used in
making the decision.
(7) A summary of the applicable review options available for the
veteran to seek further review of the decision.
* * * * *
(d) Prior notification of adverse action. VA shall give the veteran
a period of at least 30 days to review, prior to its promulgation, an
adverse action other than one which arises as a consequence of a change
in training time or other such alteration in circumstances. During that
period, the veteran shall be given the opportunity to:
(1) Meet informally with a representative of VA;
(2) Review the basis for VA decision, including any relevant
written documents or material; and
(3) Submit to VA any material which he or she may have relevant to
the decision.
(e) Favorable findings. Any finding favorable to the veteran is
binding on all subsequent VA and Board of Veterans' Appeals
adjudicators, unless rebutted by clear and convincing evidence to the
contrary.
(Authority: 38 U.S.C. 3102, 5104, 5104A, and 7105)
0
181. Amend Sec. 21.430(b) by removing the text ``21.98'' and adding in
its place the text ``21.96''.
Subpart B--Claims and Applications for Educational Assistance
0
182. The authority citation for part 21, subpart B is revised to read
as follows:
Authority: 38 U.S.C. 501(a).
Sec. 21.1033 [Amended]
0
183. Amend Sec. 21.1033(f)(2) by removing the text ``Sec. Sec. 20.302
and 20.305'' and adding in its place the text ``Sec. Sec. 20.203 and
20.110''.
0
184. Revise Sec. 21.1034 to read as follows:
Sec. 21.1034 Review of decisions.
(a) Decisions. A claimant may request a review of a decision on
eligibility or entitlement to educational assistance under title 38,
United States Code. A claimant may request review of a decision on
entitlement to educational assistance under 10 U.S.C. 510, and 10
U.S.C. chapters 106a, 1606, and 1607. A claimant may not request review
of a decision on eligibility under 10 U.S.C. 510, and 10 U.S.C.
chapters 106a, 1606, and 1607 or for supplemental or increased
educational assistance under 10 U.S.C. 16131(i) or 38 U.S.C. 3015(d),
3021, or 3316 to VA as the Department of Defense solely determines
eligibility to supplemental and increased educational assistance under
these sections.
(b) Reviews available. Except as provided in paragraph (d) of this
section, within one year from the date on which the agency of original
jurisdiction issues notice of a decision described in paragraph (a) of
this section as subject to a request for review, a claimant may elect
one of the following administrative review options:
(1) Supplemental Claim Review. See Sec. 3.2501 of this chapter.
(2) Higher-level Review. See Sec. 3.2601 of this chapter.
(3) Board of Veterans' Appeals Review. See 38 CFR part 20.
(c) Part 3 provisions. See Sec. 3.2500(b)-(d) of this chapter for
principles that generally apply to a veteran's election of review of a
decision described in paragraph (a) of this section as subject to a
request for review.
(d) Contested claims. See subpart E of part 20 of this title for
the timeline pertaining to contested claims.
(e) Applicability. This section applies where notice of a decision
described in paragraph (a) of this section was provided to a veteran on
or after the effective date of the modernized review system as provided
in Sec. 19.2(a) of this chapter, or where a veteran has elected review
of a legacy claim under the modernized review system as provided in
Sec. 3.2400(c) of this chapter.
(Authority: 38 U.S.C. 501, 5104B)
0
185. Add Sec. 21.1035 to read as follows:
Sec. 21.1035 Legacy review of benefit claims decisions.
(a) A claimant who has filed a Notice of Disagreement with a
decision described in Sec. 21.1034(a) that does not meet the criteria
of Sec. 21.1034(e) of this chapter has a right to a review under this
section. The review will be conducted by the Educational Officer of the
Regional Processing Officer, at VA's discretion. An individual who did
not participate in the decision being reviewed will conduct this
review. Only a decision that has not yet become final (by appellate
decision or failure to timely appeal) may be reviewed. Review under
this section will encompass only decisions with which the claimant has
expressed disagreement in the Notice of Disagreement. The reviewer will
consider all evidence of record and applicable law, and will give no
deference to the decision being reviewed.
(b) Unless the claimant has requested review under this section
with his or her Notice of Disagreement, VA will, upon receipt of the
Notice of Disagreement, notify the claimant in writing of his or her
right to a review under this section. To obtain such a review, the
claimant must request it not later than 60 days after the date VA mails
the notice. This 60-day time limit may not be extended. If the claimant
fails to request review under this section not later than 60 days after
the date VA mails the notice, VA will proceed with the legacy appeal
process by issuing a Statement of the Case. A claimant may not have
more than one review under this section of the same decision.
(c) The reviewer may conduct whatever development he or she
considers necessary to resolve any disagreements in the Notice of
Disagreement, consistent with applicable law. This may include an
attempt to obtain additional evidence or the holding of an informal
conference with the claimant. Upon the request of the claimant, the
reviewer will conduct a hearing under the version of Sec. 3.103(c) of
this chapter predating Public Law 115-55.
(d) A review decision made under this section will include a
summary of the evidence, a citation to pertinent laws, a discussion of
how those laws affect the decision, and a summary of the reasons for
the decision.
(e) The reviewer may grant a benefit sought in the claim,
notwithstanding Sec. 3.105(b) of this chapter. The reviewer may not
revise the decision in a manner that is less advantageous to the
claimant
[[Page 39869]]
than the decision under review, except that the reviewer may reverse or
revise (even if disadvantageous to the claimant) prior decisions of an
agency of original jurisdiction (including the decision being reviewed
or any prior decision that has become final due to failure to timely
appeal) on the grounds of clear and unmistakable error (see Sec.
3.105(a) of this chapter).
(f) Review under this section does not limit the appeal rights of a
claimant. Unless a claimant withdraws his or her Notice of Disagreement
as a result of this review process, VA will proceed with the legacy
appeal process by issuing a Statement of the Case.
(Authority: 38 U.S.C. 5109A and 7105(d))
Subpart I--Temporary Program of Vocational Training for Certain New
Pension Recipients
Sec. 21.6058 [Amended]
0
186. Amend Sec. 21.6058(b) by removing the text ``21.59'' and adding
in its place the text ``21.416''.
Sec. 21.6080 [Amended]
0
187. Amend Sec. 21.6080 by:
0
a. In paragraph (a), removing the text ``21.96 and 21.98'' and adding
its place the text ``and 21.96''.
0
b. In paragraph (d)(3), removing the text ``21.98'' and adding in its
place the text ``21.416''.
[FR Doc. 2018-15754 Filed 8-9-18; 8:45 am]
BILLING CODE 8320-01-P